Anchoring Criminal Jurisdiction at Sea: The Helsinki District Court’s Eagle S Judgement and its impact for the protection of submarine cables and pipelines

The Eagle S incident – a refresher

On Christmas Day 2024, the Estlink 2 electricity cable connecting Finland and Estonia was cut by the Eagle S, an oil tanker sailing under the flag of the Cook Islands and linked to the Russian ‘shadow fleet’ (the vessel was later added to the EU’s list of sanctioned vessels). Having been alerted to the damage, the Finnish authorities contacted the ship to enquire about the location of its anchors, upon which the crew falsely reported that they were up and secured. The ship continued its journey and went on to damage four data cables in the Finnish EEZ. Upon invitation from Finland, the Eagle S sailed into the Finnish territorial sea (thus avoiding further damage to the Estlink 1 electricity cable), where it was boarded by the Finnish law enforcement authorities (on which, see Lott).

The incident took place against heightened concerns over a Russian-led hybrid campaign targeting undersea infrastructure. It followed on the heels of a similar incident involving the Chinese-flagged Yi Peng 3, suspected of damaging the BCS East-West Interlink and C-Lion1  cables in the Baltic Sea. A month after, another data cable between Sweden and Latvia was severed by the Maltese-flagged Vezhen (see here and see Ringbom).

Investigations into the Eagle S incident reveal how the vessel was already in a state of general disrepair when it set out to sea, with deficiencies in the anchor securing devices easily noticeable by the naked eye; how the vessel dragged its anchor behind it for over 90 kilometers with a significant impact on its speed, and; how the crew failed to take any action even after being contacted by the Finnish authorities.

Several criminal charges were brought against the master of the vessel and two senior crew members.

The judgment of the Helsinki District Court

On 3 October, the Helsinki District Court rendered its judgment, dismissing the charges and ordering the State to bear the legal costs. [The official English translation of the judgement was provided by the Registry of the Helsinki District Court on request, and can be viewed here.]

The Court confirms that the serious economic losses within Finland resulting from the cable cuts (with damage amounting to tens of millions of euros) meet the statutory requirements for the offences of ‘aggravated criminal damage’ and ‘aggravated interference with communications’ under the Finnish Criminal Code. By contrast, the impact for energy security and telecommunications within Finland does not amount to the ‘crippling of societal functions’ required for ‘criminal mischief’.

Having established that Finnish criminal law applies in principle, the Court nonetheless finds that its jurisdiction is restricted pursuant the UN Convention on the Law of the Sea (UNCLOS). In particular, the Court takes the view that the events described in the indictment, constituted an ‘incident of navigation’ within the meaning of Article 97(1) UNCLOS, and are therefore subject to the exclusive jurisdiction of the flag State and the State of nationality of the crew members. En passant, the Court notes how “[t]he wording of the article does not support the interpretation put forward by the prosecution that this article would not apply to intentional crimes”.

The Court also examines Article 113 of UNCLOS, which obliges States to make the breaking or injury of a submarine cable or pipeline by a ship flying its flag or by a person subject to its jurisdiction a punishable offence when “done willfully or through culpable negligence”. In particular, it notes how, for acts outside territorial waters, the Finnish Act on the Protection of Certain Underwater Cables, which implements this obligation, applies only to Finnish vessels, citizens and corporate entities. Observing how this restriction was inspired by the language of Article 113 UNCLOS, the Court asserts that this provision equally opposes the application of Finnish criminal law in the case at hand.

UNCLOS and the extraterritorial exercise of criminal jurisdiction by States impacted by cable cuts: a no-go?

For coastal States that are impacted by damage to submarine cables and pipelines caused by foreign vessels beyond their territorial waters, UNCLOS offers few hooks to exercise extraterritorial jurisdiction. For instance, the mere fact that such damage is caused by a fishing vessel operating in the EEZ, does not suffice to trigger the coastal State’s jurisdiction in respect of fishing activities (see in this sense: Virgin Media Ltd v Joseph Whelan, para. 34; Ghent Court of Appeal, 2021/NT/687, para. 6) (note: this might be different where damage results from the use of fishing equipment prohibited by the coastal State). Coastal State jurisdiction in respect of ‘artificial islands, installations or structures’ (in the sense of Article 60 UNCLOS) does not offer much leeway either, since most submarine cables and pipelines will not qualify as such (e.g. Ghent Court of Appeal, 2021/NT/687, para. 7) (note: this might be different e.g. where an electricity cable connects an offshore windfarm in the EEZ with the coastal State’s mainland).

The absence of an affirmative grant of jurisdiction, however, need not exclude that a connected and affected State assert extraterritorial criminal jurisdiction based on the general principles of jurisdiction. This is also the view expressed by the ILA Committee on Submarine Cables and Pipelines in its Third Interim Report (2024). The Committee indeed notes how, given the substantial consequences of cable cuts, a connected State could rely on the objective territoriality principle, or the related ‘effects doctrine’ to establish jurisdiction (at 87). Furthermore, given the vital role to both the global economy and national security – as recognized by the UNGA (at para. 175) – the protective principle could also serve to criminalize damage to submarine cables and pipelines by foreign vessels outside the State’s territorial waters (ibid., at 88).

To the extent that it applies the objective territoriality principle, as embedded in the Finnish Criminal Code, the judgment of the Helsinki Court would at first sight appear to support the above position. On closer scrutiny, however, the Helsinki District Court de facto rules out any exercise of criminal jurisdiction by ‘connected’ States in respect of damage to submarine cables and pipelines. It does so as a result of a broad – or rather overly broad – application of Articles 97(1) and 113 UNCLOS.

First, as concerns the exclusive jurisdiction of the flag State and the State of nationality in respect of an ‘incident of navigation’ enshrined in Article 97(1), the Court refers to the Enrica Lexie case, where the Arbitral Tribunal construed this notion as referring to events related to the ‘maneuvering or movement’ of a ship (see further Klein, at 283-4). Strikingly, the Court omits the second prong of the Tribunal’s definition, which requires that the incident ‘allegedly causes some form of serious damage or harm, including to the ships involved, their cargo, or the individuals on board’, without, however, expressly mentioning damage to submarine cables or pipelines (at para. 650).

And while the ILC’s Commentary to its 1956 Articles concerning the Law of the Sea (at p. 281) suggest that damage to cables and pipelines ‘may be regarded’ as an incident of navigation (also in this sense: Virgin Media Ltd v Joseph Whelan, paras. 17-18), one should not overlook the ILC’s cautious (or ‘optional’) phrasing. Nor should one ignore that Article 97 UNCLOS was borne out of the Lotus case and initially intended to cover accidental collisions on the high seas, and avoid ‘intolerable interference’ (ILC, at 281) of foreign courts with such incidents. As the 2024 Report of the ILA Committee observes, this suggests its scope ought to be restricted to damage to submarine cables and pipelines caused “in the normal navigation of the ship” (at para. 46).

Having regard to the facts described above, whether the conduct of the Eagle S at the time of the incident could fit the label of ‘normal navigation’ seems open to discussion. It is further difficult to understand why the Court deemed it necessary to add that Article 97 UNCLOS equally applies to ‘intentional crimes’. Such assertion seemed uncalled for, seeing as the crew members weren’t charged with having expressly intended to damage the cables to begin with (although the three crew members were accused of having ‘intentionally neglected their duties’). It is also legally questionable: the very notion of an ‘incident’ (of navigation) indeed militates against the idea that it extends to intentional damage to submarine cables and pipelines – a position that also finds support in the 2024 report of the ILA Committee (at para. 46).

Further, the idea that Article 113 UNCLOS – which is concerned with damage to submarine cables or pipelines in international waters “done willfully or through culpable negligence” – reserves criminal jurisdiction exclusively to the flag State or State of nationality of the offender appears problematic and has been criticized in legal doctrine (see e.g. here and here). In contrast with the clear language of Article 97 UNCLOS, which expressly excludes the institution of penal or disciplinary proceedings by any State other than the flag State or State of nationality, the wording of Article 113 UNCLOS is more open-ended. In fact, the provision merely sets forth a positive obligation for these States to criminalize certain offences. It does not automatically follow from its wording that criminal jurisdiction would be exclusively reserved to these States (even where other jurisdictional triggers may exist). The fact that Article 113 has not been widely implemented (2024 ILA Committee Report, at para. 82; 2020 ILA Committee Report, at para. 94) should further caution against such reading, lest Article 113 become a recipe for impunity.

Concluding thoughts

Mere days after the Helsinki District Court rendered its Eagle S judgment, the Swedish Prosecution Authority announced the closure of the investigation into the Vezhen incident, finding there was no proof that the data cable was intentionally cut, and that there was no jurisdiction to deal with any negligence offences. The combination of these developments again illustrates the difficulty of establishing attribution and intention with respect to damage to submarine cables and pipelines in the EEZ and on the high seas (including by shadow fleet vessels). At the same time, they also serve as a reminder not to jump to conclusions when incidents take place.

For coastal States – especially in the Baltic – confronted with a growing number of suspicious cable cuts, the Eagle S judgment strikes as an unwelcome precedent, ostensibly depriving them of the instrument of criminal prosecution (and the deterrent effect that goes with it). It does so at a time when many States are in fact revisiting their domestic legal framework as it pertains to the protection of critical undersea infrastructure, including at the level of their domestic criminal law.

An expansive interpretation of Articles 97 and 113 UNCLOS means that affected States will need to trust that the flag State or State of nationality will undertake effective action, including by initiating criminal proceedings where appropriate. Yet, such State may lack the capacities as well as the appetite for doing so (especially if it has adversarial relations with the affected State) – and may not have transposed Article 113 UNCLOS into domestic law in the first place. Outreach to flag States has attracted growing attention, and at times generates positive results. One option could be for the flag State to delegate the exercise of jurisdiction to an affected State so requesting. One might also wonder if the complementarity principle should play a role, and whether failure to act on the part of the flag State and State(s) of nationality could (or should) activate the jurisdiction of affected States as a last resort. Further, even where criminal prosecution is excluded, there may still be room for cable owners and cable operators to institute civil proceedings if the domestic legal framework is in place.

In the end, it bears emphasizing that the judgment of the Helsinki District Court is not final. The Finnish Prosecution Authority has indeed appealed against the judgment and the matter will proceed before the Helsinki Court of Appeal. It follows that a more pragmatic interpretation of Articles 97 and 113 UNCLOS may yet be forthcoming.