Gaps in Accountability for Submarine Cable Protection: Inadequacies in the Current Legal Framework

Authors

Martin Kwan

Document Type

Article

Abstract

Submarine cable protection has become a hotly discussed topic as the risk of damage has dramatically increased amidst wars and geopolitical tensions. This Article critically analyzes six gaps in accountability for cable protection. First, there is no civil accountability for non-territorial damage. The United Nations Convention on the Law of the Sea (UNCLOS) allows no residual jurisdiction, and the English case of Virgin Media Ltd. v. Joseph Whelan reasoned that the absence of exclusive jurisdiction to lay cables in those waters means no civil jurisdiction by the coastal state. But this Article argues that it is an exclusive right, taking into account the oft-neglected Article 79(5)’s ‘first in time, first in right’ nature. Furthermore, the Permanent Court of Arbitration has offered a more compelling understanding of sovereign/exclusive right. The maxim expressio unius (est) exclusio alterius and the Lotus principle would support finding civil jurisdiction because UNCLOS only explicitly rejects criminal jurisdiction. Second, there is insufficient public accountability by the tortfeasor to the end users. Despite the fact the APEC (Asia-Pacific Economic Cooperation) Policy Report “highly recommended” the establishment of tort law liabilities, end users cannot bring a tort claim. Third, there is inadequate accountability on the part of cable operators to the public. UNCLOS has not expressly imposed a duty on them to ensure stability. Fourth, focusing on a cable’s ownership structure (private vs. public property) to attribute responsibility overlooks its nature as a public good. Fifth, Article 114 holds operators accountable to other operators for damage to cables, but such a generic duty of care would have existed anyway. It is awkward to formally emphasize this aspect, but not the more important ones above. Article 114 also deters repair. Ultimately, the central problem is that UNCLOS has not made clear who bears the primary responsibility to protect the cables and maintain stability. Reading UNCLOS together with generic critical infrastructure law will help close the gaps.

First Page

1

Recommended Citation

Martin Kwan, Gaps in Accountability for Submarine Cable Protection: Inadequacies in the Current Legal Framework, 30 Ocean & Coastal L.J. 1 (2025).
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol30/iss1/2