Cable owners claim to own the sea. Commercial fishermen claim to own the sea. Neither of them owns the sea. Both should be regarded as tenants of the sea who must match and meet their responsibilities with their rights.
Cable owners and commercial fishermen have an equal interest in and right to use and enjoy the sea subject to limitations and protections. International law involving submarine cable owners and commercial fishermen is fundamentally simple.
One major treaty recognizes "freedom of the seas" including both "Freedom of fishing" and "Freedom to lay submarine cables and pipelines," or, as stated in the subsequent major treaty, "freedom to lay submarine cables and pipelines" and "freedom of fishing." Cable owners and commercial fishermen are equal tenants of the sea.
Among the consistent provisions in the applicable treaties is a requirement that when one tenant sacrifices to protect another tenant, the benefited tenant must recompense the sacrificing tenant. Thus, if a commercial fisherman sacrifices a net to protect a cable, the cable owner must compensate the fisherman.
The treaties acknowledge the resolution they would conclude if they could negotiate before an interaction or incident. In most other respects, cable owners and commercial fishermen are left to accommodate their shared rights to use and enjoy the sea.
A. Sources Of International Law
The sources of international law are generally accepted in the international community. Section 102 addressing the "Sources of International Law" in the Restatement (Third) of the Foreign Relations Law of the United States states: (1) A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world. (2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. (3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted. (4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.
The Reporters' Notes draw on Article 38(1) of the Statute of the International Court of Justice, a provision commonly treated as an authoritative statement of the "sources" of international law. Article 38(1) provides that the Court shall apply: international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; and, subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Article 59 of the Statute of the International Court of Justice states: "The decision of the Court has no binding force except between the parties and in respect of that particular case."
The United States Supreme Court states: "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat." [3]
International agreements/international conventions (treaties) and customary laws/international customs are the primary sources of international law. There is a growing recognition that the "general principles of law recognized by civilized nations" incorporate many principles and doctrines of private law into international commercial and economic law.
B. Current International Law Governing The Legal Relationship Between Cable Companies And Commercial Fishermen
The international law regarding the protection of undersea cables is generally established. There are three applicable treaties and one enabling statute of the United States in addition to customary international law and traditional maritime tort law. [4]
1. Submarine Cable Convention
The International Convention for the Protection of Submarine Cables, 24 Stat. 989-1000, T.S. 380, 1 Bevans 89, concluded at Paris on March 14, 1884 and proclaimed by the President of the United States on May 22, 1885, is the primary international treaty that establishes international law involving the protection of undersea cables. The Cable Convention includes seventeen articles.
Article 1 states that the Convention shall be applicable "outside of the territorial waters" of the High Contracting Parties. Article 2 states that the "breaking or injury of a submarine cable, done wilfully or through culpable negligence, and resulting in the total or partial interruption or embarrassment of telegraphic communications, shall be a punishable offense, but the punishment inflicted shall be no bar to a civil action for damages." There is an exemption if the vessel owner is involved in "saving their lives or their vessels."
Article 7 states: "Owners of ships or vessels who can prove that they have sacrificed an anchor, a net, or any other implement used in fishing, in order to avoid injuring a submarine cable shall be indemnified by the owner of the cable."
The Cable Convention has been adopted by over 40 nations.
2. Geneva Convention On The High Seas
The Geneva Convention on the High Seas, 13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82, was adopted at Geneva, Switzerland on April 29, 1958, entered into force on September 30, 1962 and proclaimed by the President of the United States on November 9, 1962.
Article 2 of the High Seas Convention discusses freedom of the seas and specifically protects "Freedom of fishing" and "Freedom to lay submarine cables and pipelines." The High Seas Convention, particularly Articles 26–30, simply reaffirms the protection provided to submarine cables.
Article 27 states: "Every State shall take the necessary legislative measures to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable shall be a punishable offense."
Article 29 states: "Every State shall take the necessary legislative measures to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand."
Article 30 was included to ensure that the protections of submarine cables afforded by the Submarine Cable Convention of 1884 were still effective. The High Seas Convention has been adopted by over 62 nations. The High Seas Convention is substantially superseded by the United Nations Convention on the Law of the Sea discussed below, although it is still in force for those nations such as the United States of America that are not signatories to the latter Convention.
3. United Nations Convention On The Law Of The Sea
The United Nations Convention on the Law of the Sea, 21 I.L.M. 1261 (1982), U.N. Pub. E.83.V.5 (1983), was adopted at Montego Bay, Jamaica on December 10, 1982 and entered into force on November 16, 1994 and establishes a basic framework for the regulation of the oceans, often described as the "constitution for the oceans."
Article 79 states that a nation is entitled to lay submarine cables and pipelines on the continental shelf. Article 87 discusses freedom of the seas, in particular "freedom to lay submarine cables and pipelines" and "freedom of fishing," each subject to other provisions and conditions. Article 112 states that a nation is entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf.
Article 113 states that any injury or obstruction of installations done willfully, through culpable negligence, or intentionally are to be treated as punishable offenses unless the act was done in a distress situation. Article 115 provides that owners of ships who can prove that they have sacrificed an anchor, a net, or any fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline. Article 116 protects the right of nationals to engage in fishing on the high seas subject to conditions.
The Law of the Sea has been adopted by 149 nations. The United States of America is not a signatory.
C. Enabling Statute In The United States: Submarine Cable Act
The United States Congress enacted the Submarine Cable Act of February 29, 1888, 25 Stat. 41-42, codified at 47 U.S.C. Sections 21–33, to give effect to the Submarine Cable Convention of 1884 discussed above and to establish the law in the United States. The Act was amended to add other provisions in the Act of May 27, 1921, 42 Stat. 8-9, codified at 47 U.S.C. Sections 34–39. The Cable Act provides no express private right of action and is primarily criminal in nature.
Under the Act, it is a misdemeanor to "willfully and wrongfully break or injure, or attempt to break or injure, or who shall in any manner procure, counsel, aid, abet, or be accessory to such breaking or injury, or attempt to break or injure, a submarine cable in such manner as to interrupt or embarrass . . . telegraphic communication." 47 U.S.C. Section 21. It is also a misdemeanor to inflict the same injury "by culpable negligence." Id. at Section 22. There is an exemption if a person breaks or injures a cable in an effort "to save the life or limb" or to save a vessel provided that the person took reasonable precautions. Id. at Section 23.
Other misdemeanors defined in the Cable Act include certain navigational errors, id. at Sections 24, 25; failure to present official papers on demand to officers of ships, id. at Section 27; and installation or operation of a submarine cable without a license. Id. at Sections 34, 37.
The Cable Act also states that "penalties provided in this Act for the breaking or injury of a submarine cable shall not be a bar to a suit for damages on account of such breaking or injury." Id. at Section 28.
There are about two dozen reported judicial decisions involving damage to submarine cables in the United States. Half of the decisions are more than fifty years old. There appear to be only two published cases for civil damages that discuss the Cable Act in some detail. [5] No published case involves charges pursuant to the criminal provisions of the Cable Act.
III. Conclusion
Cable owners and commercial fishermen are on an equal footing under international law. Although these laws establish some of the rights and responsibilities, cable owners and commercial fishermen are left to address and resolve their shared rights to use the oceans.