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Protecting undersea cables around Europe: multi-level and polycentric governance

Conflict
European Union
Governance
Institutions
International Relations
NATO
Public Policy
Regulation
Ewan Sutherland
University of the Witwatersrand
Ewan Sutherland
University of the Witwatersrand

Abstract

Recent cable cutting in the Baltic Sea, reliably attributed to sabotage by agents of the Russian Federation, has highlighted complex issues of regulatory governance, which can be analysed in terms of both multi-level governance and polycentricity. Russia invaded Ukraine in 2014 and again in 2022. It apparently views European countries as belligerents, because they are supplying Ukraine with aid and armaments, and imposing sanctions on the Russian Federation, its companies and citizens. While Russia is a signatory to the 1884 Convention on the protection of submarine cables, this does not preclude officially sanctioned sabotage. The landing of undersea cables is licensed by sector regulators, and notified to maritime agencies that warn ships and fishermen to reduce accidental damage. Cables have been designated critical national infrastructure (CNI), requiring reporting of breaks to cybersecurity centres. However, there are technical challenges in identifying where a break occurred, after which vessels in the area must be identified. These may fly the flag of any country and have a right of ‘freedom of passage’ under the UN Convention on the Law of the Sea (UNCLOS). For coast guards to seize a vessel requires approval by law officers; with foreign ministries involved if the ship flies a foreign flag. The challenges in the seas around Europe have required coordination amongst many national agencies and authorities (e.g., telecommunications regulators, CSIRTs and coast guards). It also requires coordination within the European Union and within the North Atlantic Treaty Organisation (NATO), and between the two bodies. Territorial waters end 22 km from the shore. Beyond that, international law permits states to lay cables and calls on them to make cable cutting globally a matter of domestic criminal law, but is silent on asymmetric warfare, sabotage and terrorism.