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India’s critical position in the global submarine cable network: an analysis of Indian law and practice on cable repairs

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Indian Journal of International Law

Abstract

Submarine cables are the backbone of global telecommunications and the Internet. The UN General Assembly resolution has rightly recognised submarine cables as ‘critical communications infrastructure’. The web of submarine cables traverses the maritime zones of several countries connecting people and businesses across the globe. In this network, India is located in a strategically and geographically significant position, where every cable system that connects Europe and South East Asia inevitably needs to transit. However, this paper notes that India’s critical role is not supported by an efficient and expedient permitting system for cable repairs in India. Repairing within Indian jurisdiction requires permits from about seven Indian governmental authorities. Therefore, repair and restoration of the undersea cable network in the event of cable faults is time-consuming. This article examines international law that regulates submarine cables, the UNCLOS and the overarching Indian legislation and the implementing regulations that govern submarine cable repairs in the maritime areas under Indian jurisdiction. It analyses the Indian permit practice in light of the national legal framework. Finally, the article suggests best practices consistent with Indian and international law, and practice on cable repairs that India should follow.

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Notes

  1. Oceans and Law of the Sea, Adopted by the UNGA, UN Doc. A/RES/66/231 (24 December 2011) <http://www.un.org/en/ga/search/view_doc.asp?symbol=%20A/RES/66/231>.

  2. Douglas Main, Undersea Cables Transport 99 Percent of International Data, Newsweek (April 2, 2015) [4] <http://www.newsweek.com/undersea-cables-transport-99-percent-international-communications-319072>. For more information, see, D. Burnett, R. Beckman, & T. Davenport, Introduction: Why Submarine Cables?, in, Douglas R. Burnett, Robert C. Beckman, Tara M. Davenport (eds.) Submarine Cables: The Handbook of Law and Policy (Martinus Nijhoff, Leiden, Boston, 2013) 1–18, 3.

  3. Ronald J. Rapp, Franz-Stefan Gady, Sarabjeet Singh Parmar and Karl Frederick Rauscher, India’s Critical Role in Resilience of the Global Undersea Communications Cable Infrastructure, 36(3) Strategic Analysis (2012) 375–383, 375.

  4. Vardah Damages Undersea Cable, Internet Slows Down, Times of India (13 December 2016) <http://timesofindia.indiatimes.com/india/Vardah-damages-undersea-cable-internet-slows-down/articleshow/55967405.cms>; See also, Cyclone Vardah Damages Submarine Cables to Eastern India, Datacenter Dynamics (14 December 2016) <http://www.datacenterdynamics.com/content-tracks/core-edge/cyclone-vardah-damages-submarine-cables-to-eastern-india/97478.article>.

  5. See, R. Beckman, Protecting Submarine Cables from Intentional Damage - The Security Gap, in, Burnett et al., supra note 2, at 282.

  6. The seven Ministries / Departments are the Ministry of Home Affairs (MOHA), Ministry of Defence (MOD), Directorate General of Shipping (DG Shipping), Indian Customs department, Indian National Shipowners’ Association (INSA), Flag Officer, Offshore Defence Advisory Group (FODAG) and Port authorities.

  7. See, Burnett et al., supra note 2, at 175. The time taken to secure the seven permits may be 90-4 days. The additional costs of permit fees and daily hire costs for the repair ship for these extended stays totals between USD 45,000 to USD 70,000 per day).

  8. The United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) (UNCLOS) (Ratified by India on 29 June 1995), <http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm>.

  9. This article does not address the contiguous zone as the number of repairs conducted in this zone is negligible.

  10. See, Oceans and Law of the Sea, supra note 1, at 4, 23.

  11. UNCLOS, arts. 2 and 3.

  12. UNCLOS, art. 17.

  13. UNCLOS, art. 19(2)(l).

  14. Karin M. Burke & Deborah A. DeLeo, Innocent Passage and Transit Passage in the United Nations Convention on the Law of the Sea, 9 Yale J World Public Order (1983) 389–408, 395.

  15. Case Concerning Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment of 12 April 1960, [1960] ICJ Rep6 at 38 [13-4].

  16. Robert Beckman, Submarine Cables – A Critically Important But Neglected Area of the Law of the Sea, 7th International Conference on Legal Regimes of Sea, Air, Space and Antarctica, Indian Society of International Law, New Delhi, India (January 15–17, 2010) at 3, <http://cil.nus.edu.sg/wp/wp-content/uploads/2010/01/Beckman-PDF-ISIL-Submarine-Cables-rev-8-Jan-10.pdf>.

  17. UNCLOS, art. 19(2).

  18. UNCLOS, art. 21(1)(c).

  19. Beckman, supra note 16, at 13.

  20. The contiguous zone which is a maritime zone beyond national sovereignty is not included in the article, as mentioned in the introduction.

  21. UNCLOS, Article 55 defines the EEZ as ‘an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.’ For more information on the specific legal regime of the EEZ, see also, Robert Beckman and Tara Davenport, The EEZ Regime: Reflections after 30 Years, Papers from the Law of the Sea Institute, UC Berkeley–Korea Institute of Ocean Science and Technology Conference, Seoul, South Korea (May 2012) at 6, <https://www.law.berkeley.edu/files/Beckman-Davenport-final.pdf>.

  22. UNCLOS, art. 56(1)(a).

  23. UNCLOS, art. 76(1).

  24. UNCLOS, art. 77(1).

  25. UNCLOS, art. 77(4).

  26. On 11 May 2009, India Submitted to the Commission on the Limits of the Continental Shelf (CLCS), in accordance with Art. 76, paragraph 8, of the UNCLOS. Submission by India, <http://www.un.org/depts/los/clcs_new/submissions_files/submission_ind_48_2009.htm>.

  27. The Virginia Commentary on the UNCLOS provides that the expression ‘all States’ in Article 79 should not be read restrictively as ‘in practice many submarine cables and pipelines are privately owned and are laid by corporations or other private entities. The term therefore refers to the right of States or their nationals to lay cables and pipelines.’ See, Myron Nordquist et al. (eds) The United Nations Convention on the Law of the Sea 1982: A Commentary (Martinus Nijhoff Publishers, Leiden, 1993) III at 264; See Burnett et al., supra note 2, at 79–80.

  28. UNCLOS, Article 58(3) states that ‘in exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.

  29. UNCLOS, Article 79(5) provides that ‘when laying submarine cables or pipelines, States shall have due regard to cables or pipelines already in position. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced.’

  30. The fourteen submarine cable systems, that either land in India or transit Indian maritime zones, are: FLAG Europe-Asia (FEA), India-Middle East-Western Europe (IMEWE), SEACOM / TGN Eurasia (TGN-EA), Bay of Bengal Gateway (BBG), Gulf Bridge International Cable System (GBICS) / Middle East North Africa (MENA), SAFE, WARF Submarine Cable, Bharat Lanka Cable System, i2i Cable Network (i2icn), Tata TGN-Tata Indicom, Europe India Gateway (EIG), FALCON, Sea-Me-We-3 (SMW3), Sea-Me-We-4 (SMW4). This list has been compiled from Submarine Cable Map, <http://www.submarinecablemap.com>, supra note 3.

  31. Two cable systems under construction are Asia Africa Europe-1 (AAE-1) and ICX.

  32. SEA-ME-WE-5 cable system decided not to land in India due to a decision by the Indian government to impose an extensive bond before foreign submarine cables can land in India. See, Burnett et al., supra note 2, at 146.

  33. Two companies, among others, that possess the ILD license are Bharti (Airtel), see <http://www.airtel.in/about-bharti/media-centre/bharti-airtel-news/enterprise/bharti-gets-international-long-distance-service-licence> and Reliance <http://www.rcom.co.in/Rcom/aboutus/overview/overview_networking.html>. The ILD licensee list is available at <http://www.trai.gov.in/Content/ProviderListDisp/5_ProviderListDisp.aspx>.

  34. Kent Bressie and Madeleine Findley, Coping with India’s New Telecom, 62 Submarine Telecoms Forum (2012) 16–19, 16 <http://www.hwglaw.com/siteFiles/News/0267F59A19D099AD52FB6194127110D3.pdf>. India considers telecommunications as a potential source of security threats. This is attributable to India’s fear of terrorism in India’s maritime zones (for example, the 2008 terrorist attacks in Mumbai originated from the sea) and secondly, the terrorists in that attack used mobile phones and Voice over Internet Protocol (VoIP) to direct the attacks).

  35. The MZI Act was enacted on 25th August, 1976, <http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/IND_1976_Act.pdf>. Sections 5 and 7, dealing with the contiguous zone and the EEZ respectively, came into force by a separate notification on 15 January, 1977.

  36. UNCLOS, art. 19(1).

  37. Aban Loyd Chiles Offshore Ltd. & Anr. v Union of India & Ors., (2008) 11 SCC 439 [71].

  38. Ibid. [72].

  39. Ibid.

  40. Republic of Italy & Ors. v Union of India & Ors., (2013) 4 SCC 721.

  41. Ibid [99] and Aban Loyd case, supra note 37 [73].

  42. Italy v India, supra note 40 [96].

  43. Italy v India, supra note 40 [99].

  44. The MZI Act, section 7(5).

  45. Moreover, neither the MZI Act nor the UNCLOS define ‘structure’ or ‘device’.

  46. Aban Loyd, supra note 37 [70].

  47. This information has been compiled from several interviews with many telecom officials. It is not available on record in the form of public documents.

  48. Kalyan Parbat, Security Nods for Foreign Staff at Telecoms on Hold on Technical Grounds, Economic Times Bureau (November 12, 2014) [5] < http://articles.economictimes.indiatimes.com/2014-11-12/news/56025647_1_security-clearance-home-ministry-landing-stations>.

  49. Guidelines for E&P Operators for MOD Clearance in Respect of Vessel Deployment / Engagement and Data, <http://www.dghindia.gov.in/assets/downloads/570ce280a688a1003.pdf >.

  50. See supra note 48.

  51. See supra note 48 [3].

  52. See, supra note 48.

  53. Douglas Burnett, Submarine Cables on the Continental Shelf in Myron H. Nordquist, John Norton Moore, Aldo Chircop, Ronán Long (eds) The Regulation of Continental Shelf Development: Rethinking International Standards (Martinus Nijhoff, Leiden/Boston, 2013) 53–70, 64. See also, Burnett et al., supra note 2, 175.

  54. Apprehension of Vessels Violating Provisions of MZI Act 1976 and MOD Guidelines, OP/OMP/5106/MoD/ Guidelines dated 9 June 2006.

  55. Directorate General of Shipping, Shipping Development Circular No. 2 of 2002 (June 8, 2002) [1.4–1.5] <http://www.dgshipping.gov.in/Content/viewNotice.aspx?noticeid=99>.

  56. Indian National Shipowners’ Association, Guidelines for Chartering a Foreign Flag Vessel, <http://insa.in/content/81/guidelines-for-chartering-a-foreign-flag-vessel>.

  57. This freedom under art. 58(3) is only subject to the due regard obligation as discussed above. See supra note 28. But, the requirement to use Indian ships to conduct repairs in the EEZ appears to be an overreach.

  58. See, Burnett et al., supra note 2, 55.

  59. An additional difficulty is that SPL is valid only for the calendar month in which it is applied for and received, irrespective of the number of days remaining in the month.

  60. The Shipping Act, Section 3(2) defines coasting trade as ‘the carriage by sea of passengers or goods from any port or place in India to any other port or place in India.’

  61. Shipping Development Circular No.1 of 2013 (18 January 2013).

  62. See, Burnett et al., supra note 2, at 175–6. Art. 94 of the UNCLOS (duties of the flag State) applies to EEZ by virtue of art. 58(2).

  63. The common practice is to import on a temporary basis if the period is less than six months. If it exceeds six months, it would be considered permanent.

  64. See supra note 47.

  65. See, Burnett et al., supra note 2, at 150; see also Bressie and Findley, supra note 34, at 16.

  66. The Indian Customs Act, 1962, section 2(27) and section 2(28). See, Bressie and Findley, supra note 34, at 16.

  67. See, Bressie and Findley, supra note 34, at 16.

  68. The Central Government has extended the provisions of Chapter V of the Finance Act (32 of 1994) to the designated areas in the continental shelf and EEZ of India. [Notification no. 01/2002-ST dated 01.03.2002 as amended]. See also Bressie and Findley, supra note 34, at 17.

  69. UNCLOS, art. 33 and MZI Act, section 5(4). See Bressie and Findley, supra note 34, at 17.

  70. VSAT is a two-way satellite connection that connects a remote earth station such as a commercial shipping vessel to a shore network such as the internet, For further information, see, IT@Sea, What is VSAT-How It Works <http://www.itatsea.net/2012/07/what-is-vsat/> and <http://www.vsat-systems.com/satellite-internet/how-it-works.html>.

  71. Indian DGS Order No. 02 of 2012.

  72. See supra note 47.

  73. The Information Technology Act, 2000, section 2(k) defines ‘computer resource’ as computer, computer system, computer network, data, computer data base or software (emphasis added). Section 2(j) defines ‘computer network’ as ‘the interconnection of one or more computers through (i) the use of satellite, microwave, terrestrial line or other communication media; and (ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained.’

  74. Show Cause Notice Keeps Undersea Cable Ship Off India Coast, The Hindu Business Line (January 1, 2013) [1,5–6] <http://www.thehindubusinessline.com/industry-and-economy/info-tech/show-cause-notice-keeps-undersea-cable-ship-off-india-coast/article4262423.ece>.

  75. Telecom Ministry Plans To Reduce Undersea Cable Repair Time To 3 Days, The Hindu Business Line (December 21, 2012) <http://www.thehindubusinessline.com/info-tech/telecom-ministry-plans-to-reduce-undersea-cable-repair-time-to-3-days/article4226490.ece>. The Telecommunications Ministry had proposed faster naval and custom clearances, wherein a repair ship should be treated as an ‘ambulance on the road’, were also suggested.

  76. This would avoid the effective date of the MOHA Pre-Clearance from being short of 3 months, that is, not from the date of submitting the application but a uniform date of January 1 of the following year.

  77. The DOT can also bring an electronic application system where a single application is made and the DOT would coordinate with the relevant authorities in case of cable repairs.

  78. The Shipping Act, section 406(1) and section 407(3).

  79. The Convention on the International Regulations for Preventing Collisions at Sea (COLREG), 20 October 1972, 1050 UNTS 16 (entered into force 15 July 1977).

  80. COLREG, Rule 27 and Rule 3(g)(i). India is a party to COLREG, <http://www.imo.org/en/About/Conventions/StatusOfConventions/Documents/Status%20-%202016.pdf>.

  81. See Rapp et al., supra note 3, at 380. In addition, most coastal states request only that a Notice to Mariners (NTM) be issued when working in the EEZ to note the location of the repair operation. In some other coastal states, an NTM is all that is required even in the TS.

  82. Sri Lanka Exploits India’s Inefficiency to Anchor Subsea Cable Ambulance Fleet, LIRNEasia (March 30, 2014) [5] < http://lirneasia.net/2014/03/sri-lanka-exploits-indias-inefficiency-to-anchor-subsea-cable-ambulance-fleet/>.

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  1. Centre for International Law, National University of Singapore, Singapore, Singapore

    Anjali Sugadev

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Correspondence to Anjali Sugadev.

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The author is very grateful for comments received from Robert Beckman, Douglas Burnett, Nigel Irvine, Kristine Kraabel, and officials from the Indian telecom companies. Any shortcomings are that of the author alone.

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Sugadev, A. India’s critical position in the global submarine cable network: an analysis of Indian law and practice on cable repairs. Indian Journal of International Law 56, 173–200 (2016). https://doi.org/10.1007/s40901-017-0050-y

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