More and more often comes to the news that submarine cables are being constructed, became damaged or sabotaged. With current technology submarine cables are the only way to ensure seamless connectivity throughout the globe, which is demonstrated by the fact that approx. 99 percent of international data traffic, out of which a great bulk is related to internet usage, relies on submarine cables. Interestingly, Hungary, a landlocked country, recently has also become involved in the building of a submarine cable through its flagship telco operator 4iG, which plans to build a submarine cable together with Telecom Egypt from Albania to Egypt. Hence, it makes sense to consider some relevant legal issues that submarine cables and their operators face in case of outages due to unexpected cable cuts.
Although telegraph submarine cables have been built since the middle of the 19th century and the first transatlantic telephone cable system has been in operation since 1956, the legal environment for damage protection is rather vague, it is based on some legal principles set out international law. The main legal instrument is UNCLOS, United Nations Convention on the Law of the Sea, which sets out general rules for laying and protecting submarine cables. UNCLOS defines different maritime zones which influence the legal status and jurisdiction over different parts of the submarine cables.
Whereas the “high seas” area cannot be regulated by a particular state and basically anyone can lay submarine cables there, territorial sea (until 12 nautical miles from shore) is under the costal country’s jurisdiction. Connecting a country to a submarine cable through territorial sea usually requires a cable landing license from the regulator of the coastal country. In the EEZ, exclusive economic zone, which extends to 200 nautical miles from the shore, the coastal state has sole exploitation rights, however, it cannot interfere with foreign entities laying submarine cable on the seabed. Because of the different legal status of certain submarine cable segments, ownership rights need to be allocated carefully among submarine cable consortium partners. The territorial seas segments of cables are usually owned by the party who is from the country where the cable lands (landing party) whereas other segments of the cables are owned as agreed by the consortium partners, typically in line with the investment made by a certain partner.
Turning to the Houthis, indicated in the title of the article, who have caused serious disruption for submarine cables using the Red Sea/ Egypt route. Since 2023, the Houthis have attacked several merchant and naval vessels, the sinking of which caused damage to several submarine cables connecting Europe with Asia and the Middle East. Apart from the unintended attacks, in some cases, the Houthis carried out deliberate attacks on submarine cables. Typically, submarine cable cuts require several weeks of repair time, as specialized ships need to be mobilized and undertake the works, but in case of Yemen the countries de facto division poses a further problem. Authorization to enter Yemeni waters and carry out repairs not only requires approval from the official Yemeni government but from the authorities that are running the Houthis controlled areas. Obviously, these parallelly existing governmental agencies lack efficient co-ordination and are not interested in allowing quick repairs, if at all issuing the necessary authorization.
Because of these difficulties alternative routes, mainly through Iraq and Turkey, gaining popularity and start providing sensible diversification. Although the Iraqi-Turkey part of this Europe to Asia connection is terrestrial, receiving the right authorizations is also not easy. Beside Iraqi and Turkish licenses the permission from the autonomous Kurdish regional authorities also need to be acquired.
It is to note, however, that submarine cable cuts are mostly associated with more banal reasons than terror attacks, mainly they are caused by fishing activity, anchoring ships and natural disasters such as undersea landslides or earthquakes. If damage is caused by the latter, obviously, repair costs cannot be reclaimed, in case of human activity the damage suffered is theoretically recoupable. However, there are several factors which make such claims complicated. On the factual side, it has to be established which vessel was in the close vicinity of the cable when the cut occurred. This in itself not an easy exercise as not all fishing vessels have sophisticated radio signal systems installed and satellite images not always available. On the legal side, it needs to be considered in which maritime zone the damage happened, under what flag the vessel is registered, in which country the operator and the owner of the vessel is registered. In some cases, these elements could lead to different countries; for example, the vessel can sail under the flag of Panama, the operator can be an Indian company and the owner can be a Greek company. In such cases several legal issues need to be assessed, from procedural difficulties to which country offers highest potential to actually execute a judgement against the culprit.
For establishing criminal liability further factors need to be considered, such as whether causing the damage was intentional or grossly negligent and also the nationality of the crew has relevance. In a recent case the crew of Eagle S, a Cook Island flagged oil tanker, have faced criminal charges in Finland because of damaging the EstLink 2 power cable and 4 telecom cables linking Finland and Estonia. According to Finnish prosecutors, in December 2024 the Eagle S dragged its anchor for nearly 90 kilometers across the seabed, causing significant disruption to submarine cable infrastructure. The prosecutors argued that the vessel’s senior crew had negligently failed to notice the anchor’s malfunction after departing the Russian port of Ust-Luga. The crew raised as defense that once they established the failure in the system they have undertaken appropriate measures to address the problem. Ultimately, the case has been rejected by the Helsinki District Court on the ground of lacking jurisdiction as the damage has been caused outside of Finnish territorial waters[1]. Outside of territorial waters, under UNCLOS, criminal jurisdiction lies with the vessel’s registration state or the state of nationality of the crew members, which meant that either the Cook Islands or Georgia and India (home countries of crew members) could initiate criminal proceedings.
This recent case shed light on some of the jurisdictional difficulties establishing liability in case of submarine cable damage. According to some critics the current UNCLOS rules require some refurbishment, in particular regarding the jurisdictional provisions. It could be considered whether criminal jurisdiction of the coastal state should be extended to the Exclusive Economical Zone. International co-operation and enforcement protocols should also be enhanced to make a credible threat for offenders that they likely to face criminal charges in case of intentional cable cuts. Furthermore, Hungary should consider if the current Criminal Code contains necessary rules for initiating criminal procedures against persons damaging submarine cables that are in the ownership of a Hungarian company.
[1] The case has been appealed, and it is currently evaluated by the appellate court.
By Attila Bocsak and Robert Szuchy, Partners, BSLAW Budapest
