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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 2 The objects of international law, Ch.6 The high seas, Submarine Cables and Pipelines

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
Territorial sea — Ships / vessels — Continental shelf — Belligerents — Warfare, sea

Submarine Cables and Pipelines

Annuaire, 33 (1927), i, pp 171–90, and ibid, 33 (1927), iii, pp 296–9 Resolution of the Institute of International Law in AJ, 21 (1927), pp 728, 729, and ibid, 22 (1928), Special Suppl, p 338 Soubeyrol, AFDI, 4 (1958), pp 157–85 Roelandt, La Condition juridique des pipelines dans le droit de la mer (1990).

§ 310  Telegraph cables in the open sea

It was a consequence of the freedom of the open sea that no state could prevent another from laying telegraph and telephone cables therein, whereas no state need allow this within its territorial sea. In course of time numerous submarine cables were laid and the question as to their protection arose. Already in 1869 the United States had proposed an international convention for this purpose, but the matter was dropped in consequence of the outbreak of the Franco-Prussian War. The Institute of International Law took up the matter in 18791 and recommended an international agreement. In 1882 France issued invitations to an international conference at Paris for the purpose of regulating the protection of submarine cables. This conference met in 1882, and in 1883, and produced the International Convention for the Protection of Submarine Telegraph Cables which was signed at Paris on 14 March 1884,2 by Great Britain and 25 other states.

(p. 761) § 311  International protection of submarine telegraph cables

The principal provisions of the 1884 Convention are as follows:

(1)  Intentional or culpably negligent breaking or damaging of a cable in the open sea is to be punished by all the signatory powers,1 except in the case of such damage having been caused in the effort of self-preservation (Article 2).

(2)  Ships within sight of buoys indicating cables which are being laid, or which are damaged, must keep at least a quarter of a nautical mile distant (Article 6).

(3)  For dealing with infractions of the interdictions and injunctions of the treaty the courts of the flag state of the infringing vessel are exclusively competent (Article 8).

(4)  Warships of all signatory powers have a right to stop and verify the nationality of merchant ships of all nations which are suspected of having infringed the regulations of the treaty (Article 19).

(5)  All stipulations are made for the time of peace only, and in no wise restrict the action of belligerents during time of war.2

In later treaties, however, the question of submarine telegraph cables became coupled with that of submarine pipelines for gas or oil.

§ 312  Pipelines

A relatively new use of the seabed has been the laying of submarine pipelines for oil or gas which may be flow lines within an installation, feeder lines joining adjacent fields, or major transmission lines carrying oil or gas to a coast. At the 1958 Geneva Conference on the High Seas, the United Kingdom delegation succeeded in getting the laying of pipelines mentioned, together with submarine cables, in Article 2 of the Convention on the High Seas which defines the freedom of the high seas.1 The development, however, of sovereign rights over the continental shelf meant that the laying of cables and pipelines also needed to be safeguarded in the Convention on the Continental Shelf.2

(p. 762) By the time of the Convention on the Law of the Sea 1982, the problem was compounded, for pipelines might now traverse several different maritime zones. In its article headed ‘Freedom of the High Seas’, the Convention includes the freedom to lay submarine cables and pipelines,3 but makes it ‘subject to Part VI’. Part VI deals with the continental shelf, and there is found a more elaborate article, of five paragraphs, headed ‘Submarine cables and pipelines on the continental shelf’.4 In this article, the entitlement of ‘All States’ to lay cables and pipelines on the continental shelf is stated, and the coastal state ‘may not impede’ their laying or maintenance, subject, however, to its ‘right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines’. Moreover, the delineation of the course of ‘such pipelines’ on the continental shelf is subject to the consent of the coastal state;5 and there are safeguarded, the rights of the coastal state to order the conditions for entry of cables or pipelines into its territory or its territorial sea, the rights of the coastal state over cables and pipelines connected with exploration of the shelf or exploitation of its resources, or over artificial islands, installations and structures ‘under its jurisdiction’.6 There is also a requirement of ‘due regard’, in laying cables and pipelines, to those already in position.7 There are more provisions about both submarine cables and pipelines in Part VII, which deals with the high seas. The right to lay them on the bed of the sea beyond the continental shelf is stated; and the need to have due regard to those already in position, and the possibility of repair are safeguarded.8 There are also articles dealing with breakage or injury and indemnities.9

These rules are frequently supplemented by agreements dealing with particular areas, such as the North Sea, or the Gulf;10 and of course municipal legislation may also be highly relevant to particular questions that may arise. It seems odd that the 1982 Convention continues dealing with submarine cables and pipelines together, for, apart from the right to lay, technical problems they may give rise to are often different, especially in regard to the possibilities of pollution.

Footnotes:

See Annuaire, Ed Nouvelle Abregée (1928), vol I, Session Bruxelles 1879, pp 518–63.

Entered into force 1 May 1888. See Martens, NRG, 2nd series, 11, p 281 and BFSP, 75 (1883–84), p 356. The Convention of 1884 was revived as regards Germany by Art 282 of the Treaty of Peace 1919.

See the Submarine Telegraph Act 1886. See Netherlands PTT and Post Office (London) v Nedlloyd (1977), ILR, 74, p 212, for the decision of the District Court of Rotterdam, applying the penalties and civil liability laid down by the Convention to damage by the anchor of a Dutch ship outside of territorial sea.

There are also other possible sanctions for interference with submarine cables. Resolution 48 of the ITU Plenipotentiary Conference 1973 dealt with the destruction of submarine cables in the Eastern Mediterranean; one from Beirut to Marseilles and the other from Beirut to Alexandria. They were put out of action in Lebanese territorial waters during the night of 17–18 October 1973. The resolution condemned the policy of destruction and resolved ‘to envisage, in the event of any repetition of such acts contrary to the rules and practices governing international relations, all appropriate sanctions, including the suspension, and even the exclusion of the State of Israel’ (the suspected perpetrator).

For submarine telecommunication cables, see Chappez, AFDI, 32 (1986), pp 760–78.

See vol II of this work (7th ed) § 214.

Article 2 (3).

Article 4: ‘Subject to its right to take reasonable measure for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf.’

Article 87.

Article 79.

See Article 79 (3); in this paragraph, note that the delineation of the course of submarine cables is not mentioned.

Article 79 (4). It should be remarked that pipelines may need pumping stations on the continental shelf, which in effect means the construction of an ‘installation’ on the shelf.

Article 79 (5).

Article 112.

Articles 113–115. It may also be necessary to consult Pt XII of the Convention, on the protection and preservation of the marine environment. The article dealing with pollution mentions ‘artificial islands, installations and structures’ (see Art 208); but a cable or pipeline may well be an integral part of an installation.

10  See Roelandt, La Condition juridique des pipelines dans le droit de la mer (1990) for some detail on this matter. Perhaps of particular interest, because of the light they shed on the importance of the structure of the continental shelf, are those between Norway and the UK for piping gas and oil from installations on the Norwegian shelf to the UK mainland, it being difficult and costly to take a pipeline the shorter distance, over the Norwegian Trough, to the Norwegian mainland. See TS No 101 (1973); TS No 113 (1977) and TS No 39, (1987).