Can “Safety Zones” provide Safety to Critical Submarine Cables?

Following the submarine cable cuts in the Baltic Sea, the Australian Federal Police was urged to commence an investigation at the behest of Subco, a private submarine cable operator, concerning the damage to two submarine cables. On the second August weekend, technicians detected faults on two submarine cables in an offshore area located in Australia’s EEZ. The damaged Indigo-West and Indigo-Central submarine cable constitute two of the 16 Australian subsea cables, which carry 99% of Australia’s international communications. The Indigo-West cable connects to Indonesia and Singapore and the Indigo-Central cable provides a link between Victoria, Tasmania, and New South Wales. While suspicious activities of a vessel and third-party causation are currently assessed, following the heightened occurrence of incidents to submarine cables in the EEZ, the (non-)existing regime of safety zones around such cables in times of peace merits consideration. Accordingly, the following post will examine the legal basis for establishing safety zones around submarine cables in the EEZ pursuant to UNCLOS. It will furthermore consider the Australian national regulations regarding the protection of cables and legal ramifications in case of damages.

Protection of Submarine Cables through Safety Zones

While UNCLOS entails regulations regarding the laying of submarine cables in the EEZ and on the continental shelf (see Articles 58, 79 UNCLOS), the protection of such, particularly in the EEZ, remains a controversial issue that has not yet been definitively resolved. One of the proposed solutions under discussion is the establishment of safety zones around submarine cables. Safety zones are areas that may be established in the vicinity of various types of installations to ensure their safety and, moreover, to regulate the navigation around and within them.

UNCLOS provides several specific provisions regulating safety zones: while Article 60 addresses the subject in relation to artificial islands, installations, and structures located in the EEZ, Article 147 regulates them with respect to activities and installations in the Area. Article 260 further stipulates the possibility of establishing safety zones around scientific research installations. In the event of a violation within a safety zone in the EEZ and on the continental shelf, Article 111 UNCLOS does in addition extend the right to hot pursuit to the respective coastal State. 

In light of the most recent reported damages to submarine cables in the EEZ, the following will focus on Article 60 UNCLOS. Article 60 (4) UNCLOS does not only stipulate the possibility of establishing safety zones, but further enables the respective coastal State to “take appropriate measures to ensure the safety of both navigation and of the artificial island, installations and structures”. In addition to that, all vessels are obliged to respect these zones and comply with the generally applicable standards of these zones (Article 60 (6) UNCLOS). In this manner, the coastal State’s jurisdiction in the event of incidents and violations of the safety zone or the cables located therein would be guaranteed.

So, happily ever after for the protection of submarine cables? Although Article 60 establishes a framework for the establishment of safety zones in the EEZ, it is not applicable to submarine cables. As submarine cables cannot be considered as artificial islands, for the applicability of Article 60 they must either qualify as “installations” or “structures”. Although UNCLOS does not provide a specific definition of these terms and their definition is controversial, they usually refer to (semi-)permanent or movable objects utilized for specific tasks, such as scientific research. Submarine cables, utilized primarily for telecommunication, however do not fit this definition. UNCLOS and other international instruments further specifically provide separate provisions for installations and structures and cables (see for example Articles 21 (1) (c), 79, 112). Consequently, as also determined in the 2024 ILA Interim Report on Submarine Cables and Pipelines, cables cannot be categorized as installations or structures and fall outside the scope of protection of Article 60 UNCLOS. Submarine cables are thus not encompassed within the safety zone stipulations entailed in UNCLOS and the protective mechanisms stipulated therein. 

The Submarine Cable Protection Zone off Perth

Due to these uncertainties and ambiguities with respect to UNCLOS, States have already adopted certain measures to protect their submarine cables and established safety zones around them. Similar to the regulations adopted by New Zealand, Denmark, and Japan, the Telecommunication Act (1977) awards the Australian Communications and Media Authority the prerogative of establishing such cable protection zones within Australian territorial waters and the EEZ (extending up to 3.7 km in width and 2000 m in depth). The corresponding Submarine Cable (Perth Protection Zone) Declaration 2007, established the protection zone around the two reportedly damaged cables. It extends to 60 nautical miles and covers one nautical mile on either side of the cables. While the Declaration merely regulates prohibited or restricted activities in the protection zone, the Telecommunication Act includes the corresponding legal ramifications of violations thereof. Damage to cables situated in such protection zones are assessed under strict liability in accordance with the Australian Criminal Code, and are sanctioned with a maximum of 10 years’ imprisonment or 600 penalty units, or both (see Schedule 3A, Division 4, Clause 36). In the event that the cable has been damaged as a consequence of a prohibited or restricted activity within the protection zone, more lenient sentences can be imposed (see Schedule 3A, Division 4, Clause 40).

Merely at the Starting Point of Effective Protection 

While the deployment of safety zones to protect submarine cables is undoubtedly an attractive solution, the most recent damage involving two Australian cables demonstrates that further improvements of the international legal framework are required. As the establishment of these safety zones is predicated exclusively on domestic regulations, coastal States are creeping jurisdiction in this respect on the international level. Although discussions are conducted in different fora, in view of the fundamental importance of these cables and the increasing number of incidents involving them, resolution of this legal uncertainty is paramount. One such avenue would be the analogous application of Article 60 UNCLOS and its stipulations regarding safety zones. As the concept of safety zones is already established with respect to installations and structures, there is no reason why such zones should not be established around submarine cables. The domestic regulations of Australia inter alia demonstrate the possibility of establishing safety zones around submarine cables. It is thus now up to international law to catch up with these developments at the national level.