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How to be onboard in a Maritime Spatial Planning Initiative?


Maritime Spatial Planning
Photo by Maksym Kaharlytskyi on Unsplash

Maritime Spatial Planning or MSP initiatives may consist of a set of frameworks and processes used to manage and regulate human activities in the marine environment in a sustainable and coordinated way. Their aim is to balance the interests of the environment, society, and economy, promoting the sustainable development of the marine space by permitting or restricting specific actions in the sea and along the coast.


Typically, a coastal state consults any new MSP legal framework with seabed users and other stakeholders, including environmental groups and local communities, to harmonize their inquiries, reach a consensus, and issue the new regulation. Accordingly, all stakeholders are supposed to be actively involved in the development of the MSP consultation process through meetings and workshops. The purpose is to gather their input and feedback, leading to a final assessment before implementing new policies, plans, or regulations 1.


Submarine cable owners with assets in their jurisdictional waters are usually invited to participate in workshops or roundtables. During these engagements, they must defend their current ground and anticipate potential issues and challenges associated with proposed regulations, bearing in mind new cable project scenarios in the upcoming years. Careful assessment of the regulations’ application and consequences is crucial for these owners to maintain the reliability of their subsea infrastructure and mitigate additional risks to their assets. Failure to do so may even eliminate the possibility of future cable landings in their own cable stations.


Always be onboard


Always be onboard

“It is better to be at the table than on the table.” While there may not be immediate short-term benefits with this MPS consultations, the long-term outcomes are expected to be based on:

  • the future development of incipient industries, such as integrated offshore wind and tidal energy

  • the emergence of new technologies, such as buoys in open ocean aquaculture

  • potential advancements in the cable industry, such as SMART cables, and underwater surveillance drones.

While it is true that a forward-thinking marine spatial planning can make seabed impact more “manageable,” it is important to acknowledge that some of these changing factors are difficult to calculate or predict with our current technological constraints.


Risks to avoid or, at least, minimize


There is no doubt that multiple submarine cable outages in the past could have been reasonably prevented if fair regulations had been in place since the first decade of the 21st century. Unfortunately, lawmakers did not foresee the boom of the fibre optic subsea cable industry and that led to bottlenecks of several cables in the same zone. This situation increased the risk of multiple cable outages occurring simultaneously on the same day in the same area.


However, it is fair to say that even with the best AIS/VMS monitoring system, a local navy may not be able to prevent a merchant ship from breaking three cables with its anchor to avoid sinking during a stormy night.


Moreover, it is indeed a good legal practice that many countries have already embraced the implementation of safety corridors for new projected cables within their maritime boundaries. The effectiveness of these corridors is directly related to the key participation of the fishing industry in MSP discussions and a debate centred on solid and transparent scientific data, such as fishing migration and catches.


This is an opportunity to build trust and credibility among the fishing and subsea cable industries, considering that more than 70% of submarine cable failures are related to fishing activity.


Gain more allies than enemies


The fishing industry associations should be considered as potential allies if a sane dialogue is established from the beginning between both sectors. Otherwise, a cable owner may be creating an unwanted time bomb against its network reliability during the 25-year lifespan of its submarine cables.


Firstly, both industries should engage in dialogue and strive to reach an accord de concertation based on key points of mutual understanding. Previous cable awareness campaigns led by cable owners have proved to be crucial in establishing bridges where the perspectives of both sides are clearly understood through genuine dialogue during annual face-to-face meetings.


Of course, if consensus cannot be reached, the government or an agency mandated by it will be the ultimate party responsible for the final decision on how the water area and space should be used.


Who should participate?


Cable owners should carefully select their representatives for these regular face-to-face MSP workshops/meetings. It is crucial to select individuals who possess a strong technical and legal background. These representatives should also actively exercise one of the most valuable soft skills in such multi-stakeholders’ events: open-mindedness.


Every participant at the negotiating table should be ready to acquire some knowledge, even if not comprehensive, about other industries such as fishing, mining, military activities, wind farms, oil ducts prospection, and harbour construction. This understanding will enable them to effectively communicate with representatives from these sectors and grasp their language and legitimate interests.


Subsequently, with a clear mind to find allies, such cable owner representatives should aim to seek swift consensus rather than relying on the imposition of future rules that may prove impractical in situations where continuous 24/7 surveillance of submarine cables is not feasible.


Furthermore, it is crucial for the representative to carefully strike a balance between drafting a bill that demonstrates a reasonable understanding of existing threats to telecom seabed infrastructure and ensuring flexibility to adapt to evolving environmental regulations. For instance, in certain maritime areas of the continental shelf, the usual fishing zones once extended to depths of 1,200 metres, but over the course of 20 years, these zones expanded to encompass waters up to 2,800 metres deep.


Lastly, it is important to acknowledge that the various stakeholders involved in the working groups may not necessarily share the same visions or even communicate in the same language. Thus, their ideas may not be easily understood by the other group members. This highlights the importance of fostering effective communication, practicing patience, and considering legal action as a last resort and not as a primary tool.


Despite this, usually a minority abandons the dialogue shortly before these consultation processes reach completion and threatens to sabotage the entire process with massive mass-media campaigns, riots or even blocking legal actions before local courts. These inherent risks in every MSP consultation process do not undermine the need to initiate them with the required speed and form that each country deserves, nor should they diminish the importance of cable owners selecting individuals with the adequate profile for these tasks.


1 See Martínez, Mencía and Melo, Rita. “Recent Marine Spatial Planning Developments and its Impacts on Regulatory Approvals for Submarine Telecommunication Cables. A Study Case for Belgium, Cyprus and Greece.” SubTel Forum, Issue 129, March 2023.

 

Lawyer

Andrés Fígoli the director of Fígoli Consulting, where he provides legal and regulatory advice on all aspects of subsea cable work. His expertise includes contract drafting and negotiations under both civil and common law systems. Additionally, he has extensive experience as an international commercial dispute resolution lawyer. Mr. Fígoli graduated in 2002 from the Law School of the University of the Republic (Uruguay), holds a Master of Laws (LLM) from Northwestern University, and has worked on submarine cable cases for almost 21 years in a major wholesale telecommunications company. He also served as Director and Member of the Executive Committee of the International Cable Protection Committee (2015-2023).



This article was first published in Submarine Telecoms Forum Magazine #131 – July 2023.

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