2013 masterclass tutorial 1
TRANSCRIPT
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Areas of Marine Jurisdiction Review & Update on the Legal Framework Influencing
Submarine Telecommunications Marine Activities
Professor Robert Beckman Director, Centre of International Law, University of Singapore
Douglas Burnett
Partner, Squire Sanders & Legal Advisor to the ICPC
Graham Evans
Director, EGS Survey Group
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Discussion Topics
• Areas of marine jurisdiction and UNCLOS
• Interpretation, application & enforcement of legal rights
accorded under UNCLOS
• Marine jurisdictional creep, including
• Encroachment on traditional rights
• Cabotage
• Imposition of import duties
• Environmental legislation
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Discussion Topics
• Marine operations
• Defining marine operational milestones
• Marine operational permitting
• Permitting & impact on project operational planning & scheduling
• Permitting lead-time variations
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Graham S Evans
Based in Australia, Graham is a
Director of the EGS Survey Group of
companies with particular
responsibilities for the Group’s
activities in the submarine
telecommunications business.
Graham has been an active participant
in the submarine telecommunications
community for more than 22 years and
has more than 36 years experience as
a marine geoscientist.
Graham is the EGS representative for
the ICPC and represents EGS on the
SubOptic Executive Committee
• Graham S. Evans
• Director, EGS Survey Group
Photo
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Marine Jurisdiction Areas & Marine
Operations • The route survey is the first activity to test the integrity of marine
operational permitting processes within the jurisdictional areas
through which the cable route passes
• Operational permits required for performing a submarine cable
route survey are essentially the same as any other survey activity
within the Territorial Seas and Exclusive Economic Zone for any
given coastal state’s jurisdiction. However,
• Securing permissions to carry out survey, installation or
maintenance operations do vary from coastal state to coastal state
from straightforward to highly complex and with permit lead-times
measured in days to many months
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Marine Jurisdiction Areas & Marine
Operations • Agencies regulating the issuing and or the authorising of
operational permits typically include:
• Port authorities for routes passing through a gazetted port authorities
jurisdiction
• Hydrographic office and or navy having responsibility for charting and
navigation within the state’s maritime jurisdiction
• Government ministries which may include those with responsibility for,
security, defence, foreign and home affairs; transport, communications,
environment, energy and fisheries
• Underestimating permitting issues is an increasing and frequent
cause of project delays, missed project milestones and cost
overruns
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Marine Jurisdiction Areas & Marine
Operations • Predicting permit lead times has become less reliable; possible
factors:
• Lack of established process within regulatory agencies
• The number of systems being permitted following similar routes overwhelming
what processes exist
• Regulatory inefficiency
• Politics associated with competing systems landing in the same country
serving the same market
• Actual failure by permit applicants to fully comply with regulatory processes
• Unilateral changes in regulatory requirements during on-going permitting
process
• Understanding the operational permitting environment within the
marine jurisdictional areas traversed by the cable route is
therefore critical when defining project milestones
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Marine Jurisdiction & Project Milestones
How are these decided?
• Presumably by the Purchaser’s Management Team based on
• Project concept
• Requirements of investors
• Output from the Business Model
• Feasibility Study research
• System topology
• Number of marine jurisdictional areas crossed by the system
• Geopolitical context
• Understanding of performance levels of supply contractors
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Marine Jurisdiction & Project Milestones
Are they realistic?
• Will depend on precedent and experience of the project
management team
• Quality/reliability of the Feasibility Study
• Detailed understanding of the prevailing marine jurisdictional
environment for the planned system
• Timely engagement and discussions/permit negotiations with
landing and non landing party regulators/permitting agencies
• Actual performance of supplier, surveyor and installer
• Geopolitical influence/interference
• Seasonal weather patterns
• Unpredictable events occurring within the operational area
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Defining Marine Operational Milestones
Schedule Interdependencies
• Permitting
• Availability of PiPs for landing and non landing countries
• Availability of marine operational permits
• Pipeline and cable crossing agreements
• Agreement with hydrocarbon operators on entry and exit points and routing
within blocks
• Availability of social and environment assessments where required
• Approval of cable route by Purchasers and regulatory agencies
• Security clearances in place and valid for time of operation
• Compliance with cabotage and vessel importation requirements
• Variations in relative permitting lead-times
• Changes in the security environment
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The Supply Contract & Project Milestones
• Key project milestones and Plans of Work are agreed during
supply contract negotiations
• What influences these agreements?
• Establishing a competitive advantage
• Precedent
• Project risk assessment
• Assumptions that past experience equates to future expectations
• That information provided by MT or through independent research is accurate,
reliable and/or will remain constant during the execution of the contract
• That the Purchasers can or will deliver on program interdependent obligations
implicit under their responsibilities
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Marine Operations & Jurisdictional Creep
• Cabotage – designed to protect the interests of national domestic
shipping; the principle impact being the requirement to use that
nations flagged vessels or reflag own assets
• Vessel importation – requirement for vessels engaged in marine
operations to be imported requiring duty to be assessed and paid
• Environmental regulation – requirement for social and/or environmental impact assessments pre marine operations
• Security requirement – for technical team and vessel crew to undergo security checks
• Immigration restrictions – on certain nationalities in technical team and/or vessel crew; and even the country where marine operations company is registered
• Mandate for work be conducted by national research institutes
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Marine Jurisdiction Impacts on Project
Programs & Planning • Along route variations in permit lead times can lead to planning
and implementation phase dislocation if not properly sequenced
• Minimal when dealing with domestic national systems
• Most complex for long haul international systems with highly variable national
jurisdictional requirements
• The impact of permit interdependency within and between
jurisdictional areas may result in project delays and cost overruns
• The impact of routing through non landing country jurisdictions:
• Can lead to protracted negotiations when routes are through territorial seas
• Complexities when jurisdictional agencies approached late or not at all; or
when unpredicted changes or routing requirements imposed
• Problems associated with conflicts with UNCLOS protocols for coastal states
that have ratified UNCLOS
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Along Route Permit Lead Time Variations
0
50
100
150
200
250
A B C D E F G H I
Days
Cable Route
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Robert C Beckman
• Expert on ocean law and policy
issues in Southeast Asia, including
the South China Sea and Straits of
Malacca
• Head of CIL Research Project on
Submarine Cables and the Law of
the Sea
• Co-Editor of forthcoming
Submarine Cables: Handbook of
Law and Policy
• See CIL “Research Projects” on
CIL website: www.cil.nus.edu.sg
• Director,
Centre for International Law ,
National University of Singapore
• Professor, Faculty of Law
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Regulation of Cables under UNCLOS
Rights of States to regulate cables and obligation of States to
protect cables depends upon where the cables are located:
1. Zones subject to sovereignty – territorial sea and
archipelagic waters
2. Zones outside sovereignty – EEZ, continental shelf,
high seas and deep seabed
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8/9/01 42
LEGAL REGIMES OF THE OCEANS AND
AIRSPACE
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Cables in the Territorial Sea
• Laying and Repair
• Coastal States have wide discretion to adopt laws on the laying and
repair of cables in territorial sea
• Protection
• Coastal States have the right to adopt laws to protect cables in
territorial sea, including right to regulate ships exercising innocent
passage
• Coastal States have no obligation to adopt laws and regulations to
protect cables in the territorial sea
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Cables in Archipelagic Waters
• Existing cables
• Archipelagic States must respect existing cables laid by other States
which pass through its archipelagic waters, and must permit the
maintenance and replacement of such cables [Art 51]
• Laying and repair of new cables
• The laying and repair of new cables is subject to consent regulation of
the archipelagic State
• Protection of cables
• As in territorial sea, there is no legal obligation to protect cables
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Indonesia Archipelagic Waters & EEZ
37
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High Seas and Submarine Cables
• The right to lay submarine cables is a high seas freedom
that may be exercised by all States [Art 87]
• The right to lay cables must be exercised with due regard to
the rights of other States, such as the freedom of navigation
[Art 87(2)]
• When laying submarine cables, States shall have due
regard to cables or pipelines already in position. In
particular, possibilities of repairing existing cables or
pipelines shall not be prejudiced. [Art 112, 79(5)]
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Specific Legal Regime of EEZ
• Extends to 200 M from baselines
• Not under sovereignty of coastal States / not part of the high seas
• Specific Legal Regime in which sets out: [Art 55]
• Rights, jurisdiction & duties of coastal States [Art 56]
• The rights and duties of other States [Art 58]
• Coastal States have the sovereign right to explore and exploit the natural resources, including the resources of the sea-bed and subsoil [Art 56]
• Other States have the right to exercise high seas freedoms including freedom of navigation and freedom to lay cables and pipelines [Art 58]
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EEZ Regime
Coastal States must give ‘due regard’ to rights of other States
when exercising their sovereign rights over the natural resources
[Art 56(2)]
Other States must give ‘due regard’ to the rights and duties of
the coastal State when exercising their rights such as the freedom
to lay cables [Art 58(3)]
The sovereign rights of the coastal State in the EEZ with respect to
the seabed and subsoil shall be exercised in accordance with Part
VI of UNCLOS on the continental shelf. [Art 56(3)]
Therefore, rules on cables in EEZ and on Continental Shelf are
essentially the same
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8/9/01 42
LEGAL REGIMES OF THE OCEANS AND
AIRSPACE
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42
Continental Shelf Regime
• The continental shelf comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout
the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nm [Art 76]
• Coastal States have sovereign rights for the purpose of
exploring it and exploiting its natural resources [Art 77]
• The exercise of the rights of the coastal State over the continental
shelf must not infringe or result in any unjustifiable interference
with navigation and other rights and freedoms of other States as
provided for in this Convention [Art 78]
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Cables on the Continental Shelf
• All States have a right to lay submarine cables on the
continental shelf [Art 79(1)]
• As on high seas, States shall have due regard to cables or
pipelines already in position, and the repair of existing cables
shall not be prejudiced [Art 79(5)]
• The delineation of the course for the laying of cables on
the continental shelf is NOT subject to the consent of the
coastal State [Art 79(3)] [Unlike pipelines]
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Cables in EEZ and on CS
• Same rules apply to laying of cables in the EEZ and on the
continental shelf
• Article 79(2): The coastal State may not impede the laying or
maintenance of cables subject to its right to take
reasonable measures for:
1. the exploration of the continental shelf;
2. the exploitation of its natural resources; and
3. the prevention, reduction and control of pollution from
pipelines [but not pollution from cables]
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Cables on Continental Shelf
• Major interests of Coastal States are to ensure that other States
do not infringe their sovereign right to the natural resources or
conduct marine scientific research without its consent [Art 246]
• Some states (e.g., China) are also concerned with activities on
the shelf which infringe its security interests
• Since the coastal State can take reasonable measures for the
exploration of the shelf, it arguably can regulate cable ships in
order to ensure that they do not infringe their sovereign rights to
the natural resources (e.g., that they are not in fact surveying or
doing research on the natural resources of the shelf)
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Limits on Freedom to Lay Cables
• The obligation in Part V to give ‘due regard’ to the rights
and duties of coastal States in the EEZ, including
• right to manage & conserve fisheries
• right to exploit hydrocarbon resources
• right to use energy from winds & waves
• right to consent to marine scientific research
• Right of coastal States to take reasonable measures for
the exploration of the continental shelf and the exploitation
of its natural resources [Art 79(2)]
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Due Regard & Duty to Cooperate
• Can be argued that the potential conflict in uses requires
that the cable company, in order to exercise its due regard
obligation, to notify and consult with user States on how it
will exercise its rights
• But Cable Company could challenge any permit requirement
of the coastal State, as this implies that the coastal State
has the authority to deny a permit
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Challenging Coastal State Regulations
• It is very difficult for industry to challenge the regulations of
coastal States because UNCLOS rights and obligations are
with States, not private companies
• If a dispute arises on whether the laws and regulations of a
coastal State (1) infringe or unjustifiably interfere with the
right to lay cables or (2) fail to give due regard to the right to
lay cables, such a dispute would be subject to compulsory
binding dispute settlement under Part XV of UNCLOS
• However, the dispute must be a dispute between States,
and the State whose right to lay cables has been interfered
with would have to bring the case
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Maritime Boundary Issues
• UNCLOS rules assume that maritime boundaries have
been defined by boundary agreements
• Special problems arise because of:
1. Undefined Maritime Boundaries
2. Overlapping Maritime Boundaries
3. Unclear maritime claims (eg, China)
• Boundary issues can greatly complicate the notice and
permit process
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Douglas R Burnett
• ICPC International Cable Law
Advisor since 1999
• Partner, Transportation, Shipping &
Logistics group, Squire Sanders
(US) LLP
• Over 32 years of experience in
international and maritime law.
• Testified as subject matter expert
before the US Senate Foreign
Relations Committee on UNCLOS
• Author of over 20 articles on
submarine cables and international
law
• Captain U.S. Navy (ret.)
• Douglas R Burnett
• Partner, Squire Sanders
Photo
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Natural Resources
• Coastal State has jurisdiction over its natural resources
in the EEZ and on its continental shelf (Art. 77)
• Natural resources include oil, gas, minerals, and marine
species belonging to sedentary species (Art. 77)
• Production of energy from the water, currents and winds
in the EEZ (Art. 56)
• Artificial Islands, installations, and structures (Art. 56)
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Marine Scientific Research (MSR)
• UNLIKE CABLES, MARINE SCIENTIFIC RESEARCH (MSR)
IN THE EEZ AND UPON THE CONTINENTAL SHELF IS
SUBJECT TO COASTAL STATE CONSENT.
• EFFORTS DURING NEGOTIATIONS BY THE U.S. AND
OTHER SEAPOWERS TO PROVIDE FOR THE FREEDOM
TO CONDUCT MSR WERE NOT SUCCESSFUL
• UNCLOS PROVISIONS ON MSR REFLECT THE
COMPROMISE BETWEEN THE STATES FAVORING
FREEDOM OF THE SEAS AND THE COASTAL STATES
THAT DEMANDED ABSOLUTE CONTROL OF MSR IN
THEIR EEZ AND CONTINENTAL SHELF.
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Marine Scientific Research (MSR)
• Coastal State has jurisdiction over MSR in its EEZ.
• MSR is not defined in UNCLOS
• “Activities undertaken in the ocean and coastal waters to
expand knowledge of the marine environment for peaceful
purposes and includes oceanography, marine biology,
geological. geophysical scientific surveying as well as other
activities with a scientific purpose” (possible working
definition from “Definitions for the Law of the Sea, Terms not
defined by the 1982 Convention
• The problem is that MSR is defined by the coastal State.
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Surveys which are not MSR
• Hydrographic surveys
• What is “due regard”
• Military surveys (as long as peaceful)
• Cable route surveys (?)
• Pure vs applied research
• Cable route survey and repairs part of the operations
associated with the freedom to lay and maintain cables (Art.
58.1 and 78.2)
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Comparing MSR and Cables
• UNCLOS ART.’S 245-246
• COASTAL STATES, IN THE EXERCISE OF THEIR
SOVEREIGNTY, HAVE THE EXCLUSIVE RIGHT TO
REGULATE, AUTHORIZE AND CONDUCT MSR IN THEIR
TERRITORIAL SEAS, EEZ, AND ON THEIR CONTINENTAL
SHELF.
• SO HOW DOES THAT COMPARE WITH UNCLOS CABLE
PROVISIONS?
57
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THE DIFFERENCE: EIG CASE STUDY
• PLACE HOLDER FOR SLIDE TO BE RECEIVED FROM
AT&T
58
Europe India Gateway (EIG) international telecommunication cable
system (2011) showing nations in green where landing permits are
required.
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THE DIFFERENCE: EIG CASE STUDY
59
Europe India Gateway (EIG) international telecommunication cable
system (2011) showing nations in green where landing permits are
required.
EIG dual use cable system for telecommunications and marine scientific
research (MSR) show additional nations in red where MSR permits would
be required to lay and maintain the system in the Exclusive Economic
Zone (EEZ) of non-landing nations.
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Beyond Coastal State Encroachment -
OSPAR and the high seas
• OSPAR is the OSlo and PARis Conventions for Protection of the Marine
Environment of the North-East Atlantic
• d/b/a Ocean Special Police And Regulator?
• State representative are from ministries of environment
• Treaty signed in 1992, entered into force in 1998, currently 15 State
parties + EU
http://www.ospar.org/content/content.asp?menu=00340108070000_0000
00_000000
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OSPAR REGION
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THE OSPAR APPROACH
• OSPAR issued Guidelines on Best Environmental Practice (BEP) in Cable Laying and Operation (Agreement 2012-2) in June 2012. (“BEP Guidelines”)
• Covers all off-shore power cables and telecom cables in OSPAR region, including EEZ and high seas!
• OSPAR never consulted any telecom or power cable owners or operators or industry groups such as CIGRE, ICPC, the DKCPC, or the UKCPC [Subsea Cables UK]
• Scientific basis for guidelines is weak-largely based on the work of two German scientists from experiences in the Wadden Sea . Papers cited are largely not peer reviewed and any scientific papers that did not support the goals are not included.
• Legal basis appears to be weak as well because of conflicts with the United Nations Law of the Sea Convention (UNCLOS) and its provisions for the freedom to lay and maintain cables outside of territorial seas.
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BEP GUIDELINES USES LACK OF EVIDENCE
TO JUSTIFY REGULATIONS
• Emphasis on oil leak risks from power cables even though since the 1990’s modern ocean power cables use mass impregnated paper or XPLE (cross linked polyethylene) for insulation.
• Claims modern cable installation techniques like burial may have a “lethal” effect on some species.
• Cites lack of knowledge of noise impacts on fauna.
• Cites lack of knowledge of heat impacts from cables on benthic species.
• Cites electromagnetic impacts on the orientation of fish and marine mammals.
• Heavy reliance of lack of data to justify regulations under the precautionary principle.
• Ignores the over 162 years of lawful use of cables in the ocean that have never led to the loss or irreversible decline of a single species. (1811 – First Submarine power cable; 1850 – First submarine telecom cable).
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BEP GUIDELINES THAT DEPART FROM
REALITY • Environmental Monitoring Along The Entire Route Of The Cable
• EIA Required For All Cables
• Mitigation In The Form Of Compensation
• Bundling Of Existing Cables And Pipelines
• Cable Route Selection Based On Avoiding Habitats Of Species Sensitive To
Physical Disturbance
• Horizontal Drilling Favored To Avoid Damage
• Mattresses Should Be Made Of Natural Stone.
• Remove Vegetation Before Laying And Replant After Laying
• No Blasting With Explosives As A Burial Techniques
• Burial Required To Depth Of 1-3 Meters To Reduce Heat Impacts
• Cables Should Be Removed After They Are Out Of Service
• All Environmental Data Should Be Made Public
Thank You
Questions Please
