Subsea fibre optic cables transfer 99% of transoceanic data, operating at the speed of light and on a global scale. They are the physical structures which enable international connectivity in virtually all areas of our lives, including internet access, video calls, gaming and content-streaming services, not to mention time-critical transactions, writes Alice Whittaker.

Exceptional data speed and capacity

The demand for these cables is ever-growing as individuals and businesses become increasingly reliant on this method of telecommunication and require exceptional data speed and capacity.

Subsea cables are considered to be more reliable than satellite communication and allow for a larger capacity of data transfer with enhanced levels of security.

Alice Whittaker, Partner and Head of Environment and Planning at Philip Lee

The strategic importance of subsea cables for a country like Ireland is highlighted in the government’s public consultation on ‘International Connectivity for Telecommunications’ published on October 19, 2020.

Access to international telecommunications

This consultation document, which invites responses up until November 27, 2020, endorses the value of access to international telecommunications as a “key driver in the growth of social, economic and industrial development”.

Furthermore, the significance of rapid data and communication, which is facilitated by these subsea cables, has been particularly appreciated given the changes introduced to the daily routines of so many by COVID-19, including working from home, reliance on home entertainment services and virtual communications in lieu of travel and socialising in person.

A report published by ComReg in April 2020 observed that 60% of broadband users had seen an increase in usage of their home broadband since the beginning of the pandemic.

Microsoft reported that same month that it recorded more than 4.1 billion minutes of Microsoft Teams meetings in a single day, with Microsoft CEO Satya Nadella reported as saying, “we’ve seen two years’ worth of digital transformation in two months”.     

Notable contribution to Irish economy

Long before the pandemic, the subsea cable industry has been making a notable contribution to the Irish economy across many sectors.

The draft National Marine Planning Framework notes that subsea international networks make Ireland an attractive region for investment for the technology and digital sectors, with international firms choosing to locate in areas with access to cable landing points to avail of connectivity.

The government’s Statement on the Role of Data Centres in Ireland’s Enterprise Strategy identifies Ireland as a location of choice for many different sectors reliant on digital and telecommunications capabilities, all of which in turn rely on subsea cable interconnectivity.

Ireland’s connection with subsea cables goes back even further. The first transatlantic cable was laid between Newfoundland and Valentia Island, Co Kerry, facilitating the first transatlantic communications in 1858.

While that cable connection lasted only three weeks, the subsequent investment in subsea telecommunications infrastructure accelerated international trade and transformed relations between Europe and the USA.

Protect subsea cables

In 1884 the Convention for the Protection of Submarine Telegraph Cables was adopted in Paris. The parties to the convention (including Ireland as part of what was then the United Kingdom of Great Britain and Ireland) agreed to adopt the laws necessary to protect subsea cables from willful or negligent damage.

The convention set out requirements to be followed by those installing and operating subsea cables and those carrying out other marine activities including fishing, to try to ensure that damage would not occur to this valuable new class of critical infrastructure.

Many of the convention’s legal principles were ultimately incorporated into the United Nations Convention on the Law of the Sea (UNCLOS) adopted in 1982.

The UNCLOS put on a legal footing internationally agreed maritime jurisdictions. The territorial sea lies within the 12 nautical mile limit, the continental shelf lies within the 200 nautical mile limit (incorporating the state’s exclusive economic zone, or EEZ) and beyond that lies the High Seas.

While the ‘high seas’ might evoke thoughts of piracy and lawlessness, in fact the UNCLOS granted a right for any party to lay submarine cables on the seabed of the high seas and included provisions to protect those cables from damage.

The UNCLOS provided a similar right for subsea cables within each territory’s EEZ, subject any rules or regulations laid down by the territory consistent with the UNCLOS.

Foreshore Act 1933

Cables within the territorial seas are subject to such regulations as each state may adopt. In Ireland, the laying and operation of cables out to the 12 nautical mile limit is subject to licence under the Foreshore Act 1933, as amended, but beyond the 12 nautical mile limit the Foreshore Act does not apply.

As noted in the draft National Marine Planning Framework, a ‘robust and coherent marine and foreshore planning system is expected to encourage and support future investment in submarine telecommunications’.

In that respect, a Marine Planning and Development Management Bill is in preparation which is expected to provide a new regulatory framework for developments in the marine environment, including subsea cables in the Irish territorial sea.

As the general scheme of the bill acknowledges, the laying of subsea cables in the EEZ and beyond is a right protected under the UNCLOS and therefore the national rules must not conflict with the UNCLOS.

The government consultation on ‘International Connectivity for Telecommunications’ also identifies that a key objective of the new legislation will be to ensure that Ireland ‘remains an attractive location for providers of international connectivity’.

Ireland has proved an attractive location for Aqua Comms, a successful Irish company specialising in the building and operation of subsea fibre optic cable systems.

Aqua Comms has been responsible for the successful delivery and operation of the CeltixConnect cable connecting Ireland with the UK, and the America Europe Connect cable connecting the USA and Ireland.

The ‘AEC2’ cable from the USA to Denmark with a branch to Ireland is soon to be deployed, and when the branch to Ireland is operational will make this the first subsea cable connecting Ireland to mainland Europe via Denmark.  

Philip Lee has provided legal support to Aqua Comms since 2012 on the financing and development of its strategically significant infrastructure.

With further investment by Aqua Comms and others, supported by a strong policy and legislative framework, Ireland’s reputation as a strategic telecommunications hub, first established in 1858, will continue to grow in this increasingly interconnected world.

Author: Alice Whittaker, Partner and Head of Environment and Planning at Philip Lee.