International Cable Protection Committee Welcomes New Marine Biodiversity Treaty, Calls on All Parties to Promote Regulatory Certainty and Network Resilience

The International Cable Protection Committee (ICPC) welcomes the formal adoption on 19 June 2023 of a new international treaty on the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (the ‘BBNJ treaty’). The ICPC calls on all parties to implement the treaty to promote regulatory certainty and resilience for submarine cables and recognise them as critical infrastructure and a sustainable use of the oceans, and it commits to work with them to achieve that objective. The ICPC congratulates the negotiators on the BBNJ treaty and offers its particular thanks to the treaty conference President, Ambassador Rena Lee of Singapore, for her leadership and inclusion of non-governmental organisations such as the ICPC in these negotiations.

Voice of submarine cable industry in the negotiations. The ICPC is the premier global organisation dedicated to protecting submarine cables from natural and human risks of damage and promoting resilience of submarine cable networks. It participated in the treaty conference and the preparatory work that proceeded it in order to provide negotiators with scientific, technical, and practical information about submarine cables that would enhance their understanding and improve the text. The ICPC will not be a party to the treaty, as it is not a state.

Preserving UNCLOS freedoms and protections for the world’s Internet infrastructure. In the negotiations, the ICPC sought to ensure that the BBNJ treaty preserved the submarine cable freedoms and cable protection provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS expressly recognised the importance of promoting international communications, and it has provided a stable legal environment that has fostered the deployment of more than 400 submarine telecommunications cables that connect most of the world’s developed and developing coastal states to provide approximately 99 percent of the world’s internet, voice, and data connectivity.

A sustainable use of the oceans. Submarine telecommunications cables support the full range of human activity, including electronic commerce, financial transactions, tele-health, tele-education, social and cultural exchanges, scientific and climate-change observation, disaster warning, government services, and security. Extensive peer-reviewed scientific research shows that submarine cable installation and repair have a neutral-to-benign environmental impact on the marine environment in areas beyond national jurisdiction.

Promoting regulatory certainty and resilience in treaty implementation. It is critical that implementation of the BBNJ treaty result in regulatory certainty, in order to promote the timely installation and repair of this long-term fixed telecommunications infrastructure. Implementation must also promote resilience, with a multiplicity of geographically diverse, efficient, and secure submarine cable routes that ensure continuity of communications for the states and people they connect. The BBNJ treaty, however, contains very general language, and its institutions have yet to be established. The ICPC therefore seeks to work with these parties and the institutions (once they are established) to achieve outcomes in three principal areas.

• Environmental impact assessments (EIAs). The ICPC believes that submarine cable installation and repair will fall below the BBNJ treaty thresholds that would trigger additional environmental scrutiny (either through an initial vetting process known as ‘screening’ or more formal EIAs). But states and the new Scientific and Technical Body (STB) to be established under the treaty will need to apply the best available science and traditional knowledge to reach that conclusion. The ICPC supports the development by the STB of a presumptive list of marine activities that would not require an EIA, and the inclusion of submarine cable installation on such a list. The ICPC also seeks to confirm the understanding that repairs are excluded from the scope of ‘planned activities’ that could require screening or a potential EIA. The ICPC and its members therefore seek to participate in processes at the national level and in treaty institutions to confirm these understandings and, ultimately, to ensure timely and predictable permitting of new submarine cables and repairs of existing ones.

• Area-based management tools and marine protected areas (ABMTs/MPAs). To promote network resilience by preserving the ability to route new submarine cables securely and efficiently and conduct timely repair existing cables, the ICPC and its members seek to engage with states and treaty institutions in all phases of establishment and implementation of ABMTs/MPAs. In all phases, the ICPC and its members seek to ensure the use of the existing and extensive scientific research on the environmental characteristics of cables. Ultimately, the ICPC believes that submarine cables and new ABMTs/MPAs will coexist in areas beyond national jurisdiction, just as they already do in existing marine protected areas in the territorial seas, exclusive economic zones, and continental shelf areas of coastal states.

• Institutional considerations. The ICPC seeks to ensure that the institutions and processes established under the BBNJ treaty address submarine cable activities and infrastructure and that the ICPC—consistent with the treaty’s transparency provisions—be permitted to participate and speak in such processes. It also seeks the inclusion of individuals with submarine cable technical expertise on the STB’s roster of experts.

The ICPC and its members remain committed to serving as a resource for states, BBNJ institutions, and stakeholders and to participate in the processes to be established by it.

About the ICPC. The ICPC is the world’s premier submarine cable protection organisation. It was formed in 1958 to promote the protection of submarine cables against human-made and natural hazards. It provides a forum for the exchange of technical, legal, and environmental information about submarine cables and engages with stakeholders and governments globally to promote submarine cable protection. The ICPC has over 200 Members from 69 nations, including cable operators, owners, manufacturers, industry service providers, as well as governments. For further information about the ICPC, see www.iscpc.org and www.linkedin.com/company/icpc-ltd/.

Please send an e-mail to: [email protected] for any enquiries. If interested in joining the ICPC, visit: https://iscpc.org/join-the-icpc/.

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