Submarine cables continue to play a key role as critical global communications infrastructure. Accordingly, discussions and regulatory changes in this industry will persist at both regional and national levels around the world in 2023. The good news is that many governments have now recognized the importance of these subsea assets, especially if they are ever affected.
As a result, new regulatory initiatives are underway, and more international stakeholders are entering the arena to support further protection and harmonization with other seabed user industries. Below are some potential breakthroughs and trends in the legal and regulatory landscape of telecom submarine cables:
Biodiversity Of Areas Beyond National Jurisdiction.
Indeed, the event of the year was the approval of the “High Seas Treaty,” focused on safeguarding Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ). This treaty, under discussion for nearly two decades, sets up a procedure for establishing large-scale marine protected areas in the high seas. It was finally approved at an intergovernmental conference in New York, USA, on June 19, 2023.
During this period, numerous national environmental authorities globally have heightened their focus on the environmental impact of submarine cable installation and maintenance. This includes stipulations for environmentally friendly cable materials, noise levels that affect marine mammals, the use of low-frequency sonar, and the adoption of best practices in installation and maintenance to minimize disruptions to marine ecosystems.
Subsequent to the treaty’s approval, several bodies will be established to enforce its provisions. This will prompt further interpretation and implementation in the intricate realm of submarine cable permitting. Any future cable owner crossing the high seas will keenly observe these developments, especially regarding whether Environmental Impact Assessment (EIA) requirements are imposed, particularly in the new marine protected areas designated under the treaty.
Similarly, the cable industry continues to liaise with the International Seabed Authority (ISA), an intergovernmental body composed of 167 member states and the European Union. The ISA is responsible for authorizing and regulating mineral-related activities on the international seabed. Close monitoring is essential to prevent any interference between submarine cables and deep seabed activities in areas beyond national jurisdiction, as this could set dangerous precedents and discourage future cooperation between the two sectors.
Currently, the majority of ISA member states believe that commercial seabed mining should not proceed until proper regulations are established. In accordance with recent meetings held in July 2023, the ISA aims to continue the development of such regulations, targeting their final adoption by 2025.
Improving to national regulatory frameworks.
To modernize its regulatory landscape, the Telecom Regulatory Authority of India (TRAI) initiated a consultation process, soliciting feedback from stakeholders through written comments and counter-comments. In June 2023, TRAI released its recommendations on the “Licensing Framework and Regulatory Mechanism for Submarine Cable Landing in India.” (Telecom Regulatory Authority of India, 2023) 1.
While these recommendations address various aspects— ranging from licensing requirements for cable and landing station owners to ownership obligations in different segments (national/international)— barriers remain. These need to be balanced between major stakeholders, such as Over-The-Top (OTT) service providers and national carriers, and new market entrants. This balancing act is a recurring subject in discussions about India’s aspirations to become a hub for submarine cables.
TRAI further recommended that submarine cables and their landing stations be designated as critical information infrastructure. The layout, maintenance, and repair of these cables should be recognized as essential services, a status that would entail additional security and resilience measures such as redundancy, backup systems, and disaster recovery plans.
This regulatory debate is not unique to India; similar conversations are happening globally. Countries are grappling with how to craft regulations that attract investment while not creating insurmountable barriers for innovative new entrants in markets already dominated by OTTs or incumbent operators. Among the issues under discussion are the separation of ownership of cable stations from national and international segments, mandatory environmental impact assessments, and the rights of non-discrimination for local backhaul providers.
These public initiatives present an opportunity for cable owners to seek expedited procedures for new cable landing licenses and maintenance permits. They also allow for clarification on tax issues related to cable depots and operational requirements for repair vessels in jurisdictional waters. Recommendations from the International Cable Protection Committee (ICPC) serve as valuable references for any government official looking to update national regulations.
Other countries, like Ireland, have established specific government bodies such as the Maritime Area Regulatory Authority (MARA), founded in July 2023. MARA is tasked with granting maritime licenses for activities like new submarine cable projects.
In the United States, there is ongoing debate about which agency should spearhead cable protection policy. A report published by the Congressional Research Service (CRS) in August 2023, titled “Protection of Undersea Telecommunication Cables: Issues for Congress” 2 (Congressional Research Service, 2022) has added to this dialogue. The outcome could formalize the U.S. Coast Guard’s (USCG) role in protecting submarine cables in U.S. waters or delegate this responsibility to other agencies or entities like Team Telecom.
As countries begin to draft new legislation to protect submarine cables or expedite their installation, consultations are in the final stages with various stakeholders. The announcements of these final bill drafts will undoubtedly influence regional regulations and future investment in their respective countries.
Funding for new projects.
The European Commission’s Global Gateway program remains a major source of external funding for new cable projects aimed at bolstering backbone connectivity within the European Union (EU) and enhancing its ties with third countries. This strategy is mirrored by other regional investment banks and development finance institutions, which aim to develop their members’ connectivity markets through new submarine cable tenders.
Public-private partnerships (PPPs) have emerged as a viable option for governments interested in investing in these critical infrastructures to safeguard digital sovereignty. Other innovative financing models, like the formation of a Special Purpose Vehicle (SPV), serve to complement traditional consortium agreements, delineating the rights and obligations of cable owners.
A consistent aspect across these various funding avenues is the prerequisite for the proposed new cable project to maintain good regulatory standing to be eligible for continued financial support. This is particularly crucial in regions with disputed waters or in relatively unexplored routes, such as the Arctic or Antarctic.
New security concerns.
This year has seen a surge in initiatives focused on the protection of subsea energy and telecommunications infrastructure, including research articles, forums, and high-level government meetings globally. Such attention is beneficial for the telecom industry, as it underscores the critical nature of these assets to global communications and elevates their protection on political agendas.
In February 2023, the North Atlantic Treaty Organization (NATO) announced the establishment of a Critical Undersea Infrastructure Coordination Cell at its headquarters. This cell aims to safeguard submarine cables and pipelines, facilitate industry engagement, and unify key military and civilian stakeholders.
By May 2023, the Quadrilateral Security Dialogue (Quad) had formed the Quad Partnership on Cable Connectivity and Resilience, acknowledging the urgent necessity to support robust undersea cable networks in the Indo-Pacific region. Some governments have opted to integrate submarine cables into existing critical infrastructure plans or even deny landing permits based on these plans. Others are drafting specialized legislation specifically aimed at telecommunications infrastructure.
The debate over foreign ownership restrictions on submarine cable projects remains active and varies considerably from one country or region to another. It often hinges on striking a balance between national security interests and the ambition to foster economic growth and innovation through international collaboration. As the telecom sector and geopolitical dynamics evolve, rules concerning foreign ownership of submarine cables are likely to remain subjects for ongoing debate and modification.
Simultaneously, scholarly discussions are intensifying around the proper legal instruments for addressing deliberate cable damage during peacetime. Debates are underway to determine which international organization should lead updates to these instruments, with potential candidates ranging from the International Telecommunication Union (ITU) and the International Maritime Organization (IMO) to other UN bodies concerned with global security.
European Union Agency For Cybersecurity Report.
In August 2023, the European Union Agency for Cybersecurity (ENISA) released a report addressing key cybersecurity challenges in the subsea cable ecosystem 3. The report aims to assist national authorities in EU Member States who are tasked with overseeing public communication networks and core internet infrastructure, as outlined in the European Electronic Communications Code (EECC) and the Directive on Security of Network and Information Systems (NIS2 Directive).
One significant conclusion of the report is that there’s ambiguity at the national level within the EU about which authority should supervise subsea cables and receive related incident reports. As a result, it’s crucial for EU Member States to specify at the national level which entity holds the responsibility and mandate for the protection and security of these cables.
In addition to ENISA’s report, other EU-led initiatives are underway. These include the Permanent Structured Cooperation plan (PESCO), spearheaded by the European Defence Agency (EDA). PESCO aims to enhance defense cooperation among the 26 EU Member States. Notably, one of the PESCO projects for 2023 is the Critical Seabed Infrastructure Protection or CSIP, led by Italy.
Science Monitoring And Reliable Telecommunications Cables.
The growing dependence on submarine cable systems for global communication and data transfer has led to the development of Science Monitoring And Reliable Telecommunications (SMART) cables. These technologically advanced cables come with integrated environmental sensors for climate monitoring, early warning systems, and enhanced cable protection. SMART cables promise numerous advantages such as better operational efficiency, improved maintenance, and increased reliability for submarine networks.
While the initial deployments of these systems will establish important precedents, ongoing efforts are required to develop broader solutions. To fully realize the potential of SMART cables, a supportive legal and regulatory framework must be created that promotes their deployment and ensures their safe and effective operation.
Furthermore, there is still a regulatory gap that needs to be addressed to encourage the use of SMART cables. Specifically, there needs to be clarity on their classification as either a marine scientific research activity under the United Nations Convention on the Law of the Sea (UNCLOS) or some other category. This is crucial to ensure there are no additional legal or permitting constraints on these innovative projects, beyond direct agreements with the countries involved in laying the cables and current industry support.
This regulatory development is especially crucial for certain areas in the Pacific, where identifying climate change hotspots is vital for improving the resilience of future cable installations.
Looking ahead.
The submarine cable industry is at a crossroads, marked by significant regulatory changes, geopolitical considerations, and technological advancements. From international agreements like the High Seas Treaty to national initiatives in countries like India and the United States, the regulatory landscape is rapidly evolving.
Funding mechanisms are becoming more sophisticated, while security concerns are taking center stage in global conversations. Emerging technologies like SMART cables hold promise but require a well-structured legal framework for full-scale deployment. As the world becomes increasingly interconnected, it’s imperative that governments, industry stakeholders, and international organizations work collaboratively to navigate these complex challenges and opportunities, ensuring a resilient and secure global communications infrastructure for the future.
1 Telecom Regulatory Authority of India. (2023, June 19). Recommendations on Licensing Framework and Regulatory Mechanism for Submarine Cable Landing in India. Retrieved from Telecom Regulatory Authority of India: https://www.trai.gov.in/sites/default/files/Recommendation_19062023.pdf
2 Congressional Research Service. (2022, September 13). Undersea Telecommunication Cables: Technology Overview and Issues for Congress. Retrieved from Congressional Research Services: https://crsreports.congress.gov/product/pdf/R/R47237
3 European Union Agency for Cybersecurity. (2023, August 31). Undersea Cables - ENISA. Retrieved from ENISA: https://www.enisa.europa.eu/publications/undersea-cables
Andrés Fígoli is 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 telecommunication company. He also served as Director and Member of the Executive Committee of the International Cable Protection Committee (2015-2023).
This report was first published in Submarine Telecoms Forum - 2023/2024 Industry Report - October 2023.