Marine scientific research and the right to lay submarine cables and pipelines
Differences in regime
Full Professor of International Law, Faculty of Law,
University of Rome ‘Tor Vergata’/Former Head of the
Legal Service of the Italian Ministry of Foreign Affairs
1. The right to lay submarine cables and pipelines under UNCLOS:1 an overview; 2. The right to lay submarine cables and pipelines: scope and range; 3. Marine scientific research: general considerations on definition and conditions; 4. Marine scientific research and the right of laying submarine cables and pipelines: Differences in regime; 5. Conclusions.
The right to lay submarine cables and pipelines under UNCLOS: an overview
International law of the sea – as codified in UNCLOS – provides for the progressive extension of state sovereign rights and jurisdiction towards the high seas. As is well known, coastal states are entitled to have a continental shelf and an EEZ, extending for 200 nm from the baselines from which the breadth of the territorial sea is measured (also progressively extended from 6 to 12 nm).2
According to UNCLOS, every coastal state has the right to have a continental shelf, which thus has no need to be proclaimed, and has the faculty to establish its own EEZ, which is, however, to be proclaimed with a formal ad hoc declaration. While the coastal state exercises sovereign rights in the continental shelf with regard to exploration and exploitation of the living and non-living resources of the seabed and marine subsoil, in the case of the EEZ the coastal state has
1 United Nations Convention on the Law of the Sea, 1982.
2 In certain cases, if the outer edge of the continental shelf extends beyond the distance of 200 nm, the continental shelf can reach the distance of 350 nm from the baselines from which the breadth of the territorial sea is measured or the depth of 2,500 metres (Art. 76(5)).
With regard to submarine cables and pipelines, UNCLOS recognizes the right of all states to lay power, telegraph or telephone cables and submarine pipelines on the seabed not only of the high seas – beyond the outer limits of the continental shelf, in accordance with the traditional freedom of the high seas4 – but also on the continental shelf or in the EEZ of other states. In such cases, the coastal state, while lacking powers to prevent the laying of cables and submarine pipelines by other states, has nevertheless the right to adopt reasonable measures to safeguard the exploration and protection of its own natural resources, and to control pollution from pipelines, and indeed to approve the delineation of the course for the laying of such pipelines. Moreover, the coastal state has the right to establish the conditions for cables and pipelines entering its territory or territorial sea.5 Damage to cables and submarine pipelines – whether wilful or through negligence – is deemed to be punishable by the Paris Convention of 14 March 1884 on the protection of telegraph cables, which reserves the right for the flag state of the incriminated vessel to apply the penalty. Accordingly, each state is to issue its own regulations to punish any such illegal actions committed by merchant vessels flying its flag.6
The right to lay submarine cables and pipelines: scope and range
In the light of the points set out above, it is evident that the laying of submarine cables and pipelines is regulated by the existing regimes for the various marine areas in which this laying may be made, i.e. territorial sea and continental shelf.7
With regard to the continental shelf, it is obviously necessary to take into account all the relevant provisions of UNCLOS, both in Part V, on the EEZ, and,
3 See Art. 56 of UNCLOS which includes also within the jurisdiction of the coastal state: the jurisdiction with regard to establishment and use of artificial islands, installations and structures; the jurisdiction with regard to marine scientific research; and the jurisdiction with regard to the protection and preservation of the marine environment.
4 Arts 87(1)(c) and 112(1).
5 Art. 79(1) (2) and (3).
6 UNCLOS, Art. 113.
7 On the right of laying submarine cables and pipelines see: International Cable Protection Committee, ‘About Submarine Telecommunications Cables’, Lymington. Available on-line at: www.iscpc.org, 2006; P. Jouhannaud, ‘Les cables sous-marins, leur protection en temps de paix et en temps de guerre’ (Paris: L. Larose & L. Tenin, 1904); R. Lagoni, ‘Legal aspects of submarine high voltage direct current (HVDC) cables’ (Hamburg: Lit, 1998); M. M. Roggenkamp, ‘Petroleum pipelines in the North Sea: question of jurisdiction and practical solutions’, Journal of Energy & Natural Resources Law 1, 1998, pp. 92–109; P. Vrancken, ‘Submarine telecommunication cables in the territorial sea’, South African Yearbook of International Law 29, 2004, pp. 282–9; E. Wagner, ‘Submarine cables and protections provided by the law of the sea’, in Th.A. Mensah (ed.), Ocean Governance – Strategies and Approaches for the 21st Century (Honolulu: Law of the Sea Institute, 1996), pp. 95–109.
indeed, in Part VI, on the continental shelf itself. To begin with, let us recall Article 79, which codifies the right to lay submarine cables and pipelines on the continental shelf, and then go on to article 58(1).8 The last one recognizes for all states various freedoms of the sea in the EEZ. Among them, it is important to underline the right of all states to lay submarine cables and pipelines as well as the right to use the sea for other internationally lawful purposes related to the freedoms of the sea, and compatible with the other provisions of UNCLOS, and in particular those associated with the operation of ships, aircraft and submarine cables and pipelines.
Thus, it can be said that UNCLOS provides an extensive definition of the right to lay submarine cables and pipelines as inclusive of the laying operation itself and all the related activities preparing for and subsequent to the laying, as well as the maintenance of the cables and pipelines.