Jurisdictional Gaps in Subsea Data Cables

1. Introduction

The jurisdictional gaps in subsea data cables have become one of the most acute structural weaknesses in the contemporary law of the sea. Subsea data cables carry more than 95 per cent of global digital traffic, underpinning financial systems, military communications, cloud computing, and basic civilian connectivity. Despite this strategic centrality, the legal framework governing their protection, investigation, and enforcement remains fragmented, incomplete, and poorly adapted to modern risk environments. Recent incidents involving unexplained cable damage, suspected sabotage, and delayed attribution have exposed not a lack of applicable law, but a misalignment between jurisdictional design and operational reality.

At the core of the problem lies a doctrinal tension embedded in the international legal regime itself. Subsea data cables are regulated primarily through the United Nations Convention on the Law of the Sea (UNCLOS), which was negotiated at a time when cables were understood mainly as neutral communication infrastructure and when large-scale, politically motivated interference was not a central concern. UNCLOS prioritises the freedom to lay and maintain cables across maritime zones while allocating only limited and highly conditional enforcement powers to coastal states. Criminal jurisdiction over cable damage on the high seas and, by extension, in large parts of the exclusive economic zone (EEZ) is largely deferred to flag states, many of which lack either the incentive or the capacity to investigate and prosecute complex subsea incidents effectively (Churchill and Lowe, 1999; Rothwell and Stephens, 2016).

This jurisdictional architecture produces predictable enforcement deficits. When a cable is damaged beyond territorial waters, multiple states may be affected economically and strategically, yet no single authority enjoys clear investigative primacy. Coastal states face functional limits on their prescriptive and enforcement jurisdiction in the EEZ and on the continental shelf. Flag states retain formal competence but often exercise it weakly, particularly where vessels operate under open registries or where state involvement is suspected. Port states may encounter damaged vessels after the fact, but their jurisdiction is ancillary and contingent. The result is a recurring accountability vacuum in which responsibility is diffused, evidence degrades, and legal responses are delayed or abandoned altogether (Kraska, 2011; Guilfoyle, 2015).

The problem deepens when cable interference is intentional, covert, or politically motivated. Existing treaty provisions on cable protection presuppose accidental damage arising from fishing, anchoring, or ordinary navigation. They are poorly calibrated to address sabotage, hybrid operations, or coordinated interference conducted below the threshold of armed attack. Such acts rarely fit neatly within established categories such as piracy, which requires private ends, or armed conflict, which triggers the law of naval warfare. As a result, states confronted with serious cable disruptions often struggle to identify lawful enforcement options that do not escalate conflict or exceed their jurisdictional authority (Schmitt, 2017; Heintschel von Heinegg, 2020).

This article argues that jurisdictional gaps in subsea data cables do not stem from legal silence but from structural design choices that prioritise navigational freedoms and flag-state exclusivity over infrastructure protection and collective security. The analysis proceeds on three premises. First, subsea data cables constitute critical global infrastructure whose disruption generates transboundary harm incompatible with purely bilateral enforcement models. Second, the current allocation of jurisdiction across maritime zones systematically weakens accountability for intentional or reckless interference beyond territorial seas. Third, effective legal responses must operate within the existing UNCLOS framework, since reopening the Convention is neither politically realistic nor legally necessary.

The article, therefore, examines how jurisdiction over subsea data cables is constructed, where and why it fails in practice, and which interpretive or regulatory adjustments could narrow enforcement gaps without destabilising the law of the sea. By combining doctrinal analysis with concrete examples drawn from recent incidents and state practice, the discussion aims to provide a clear, operational understanding of jurisdictional gaps in subsea data cables for professionals, advanced students, and researchers engaged with maritime security, international responsibility, and global digital infrastructure governance.

2. Subsea Data Cables as a Legal Object

2.1 What counts as a “cable” in treaty law and why that matters

Subsea data cables are legally regulated as objects of the law of the sea without being conceptually defined by it. Neither the United Nations Convention on the Law of the Sea nor its predecessor instruments provides a technical or functional definition of what constitutes a “submarine cable.” UNCLOS repeatedly refers to cables in provisions dealing with the freedom to lay them, the obligation to avoid damaging them, and the duty of states to criminalise their intentional or negligent injury, yet it does so without specifying their material characteristics, operational functions, or technological evolution. This absence reflects the historical context in which the relevant provisions were drafted, when submarine cables were understood primarily as telegraph infrastructure transmitting limited forms of communication rather than as high-capacity fibre-optic systems carrying global internet traffic (Churchill and Lowe, 1999).

The definitional gap has concrete legal consequences. Modern subsea data cables differ from legacy telegraph cables in scale, strategic relevance, and functional integration with state and private systems. Contemporary cables transmit financial transactions, military communications, government data, and civilian digital services simultaneously, often through the same physical infrastructure. Yet treaty law treats all cables as legally homogeneous objects, subject to the same rights and obligations regardless of their function or sensitivity. This creates interpretive uncertainty when states seek to assess whether heightened protection, monitoring, or enforcement measures can be justified for certain categories of cables without violating the freedom to lay and maintain them guaranteed under UNCLOS (Rothwell and Stephens, 2016).

The lack of definition also complicates the relationship between cables and other legally distinct seabed installations. UNCLOS draws a clear doctrinal distinction between submarine cables and pipelines, granting coastal states greater regulatory authority over the routing of pipelines on the continental shelf while limiting their control over cables. Without a precise definition, borderline systems that combine data transmission with energy, surveillance, or sensing functions may challenge this binary categorisation. The result is a legal regime that regulates subsea data cables extensively in form but incompletely in substance, leaving critical questions of scope to interpretation rather than explicit legal allocation.

2.2 Ownership and control structures as jurisdictional stressors

The legal complexity surrounding subsea data cables is intensified by their ownership and control structures. Unlike many forms of critical infrastructure that are owned or operated by a single state or entity, subsea data cables are typically developed and managed by international consortia composed of private corporations, state-owned enterprises, and, in some cases, government-linked actors. Ownership may be distributed among dozens of stakeholders, while operational control is exercised through layered contractual arrangements involving cable operators, maintenance providers, landing station owners, and capacity purchasers (Burnett and Beckman, 2019).

These structures complicate the identification of whose legal interests are protected under international law and who is entitled to trigger remedies when damage occurs. UNCLOS provisions on cable protection were drafted on the implicit assumption that a cable had a reasonably identifiable owner whose interests could be vindicated through flag state jurisdiction or domestic criminal law. Modern consortium arrangements disrupt this assumption. A single cable break may affect entities incorporated in multiple jurisdictions, each with different contractual rights and different capacities to initiate legal action. Outside territorial waters, no clear rule determines which state’s interest is sufficiently direct to justify enforcement action, particularly when the physical damage occurs in the EEZ or on the continental shelf of a coastal state that does not own or operate the cable.

Private operation further complicates accountability. Most subsea data cables are not state assets, even though their disruption may have serious public consequences. International law traditionally allocates enforcement jurisdiction based on territorial sovereignty, nationality, or flag, not based on economic reliance or digital dependency. As a result, states whose economies or security are severely affected by cable damage may lack standing or jurisdiction to act, while the states formally empowered to exercise jurisdiction may have little practical incentive to do so (Kraska, 2011). This mismatch between functional dependence and legal competence is a central driver of jurisdictional gaps in subsea data cables.

The combination of definitional ambiguity and fragmented ownership thus transforms cables into jurisdictional stressors within the law of the sea. They are indispensable to the functioning of the international system, yet they remain legally framed as neutral objects governed by rules designed for a simpler technological era. This structural mismatch sets the stage for the enforcement and accountability problems that emerge when cables are damaged beyond territorial waters, particularly in cases involving intentional interference or strategic coercion.

3. The Baseline Treaty Framework Governing Cables

3.1 The 1884 Cable Convention as an incomplete ancestor

The first multilateral attempt to regulate submarine cables emerged with the 1884 International Convention for the Protection of Submarine Telegraph Cables. Although historically significant, the Convention illustrates the foundational limitations that continue to shape contemporary legal uncertainty surrounding subsea data cables. Its normative structure reflects a late nineteenth-century understanding of cables as fragile communication tools whose principal vulnerability lay in accidental damage caused by navigation and fishing activities. The Convention’s protective logic is therefore framed almost exclusively around the prevention of “interruptions or obstructions of telegraphic communications,” an approach that does not translate cleanly to modern fibre-optic infrastructure transmitting complex digital data streams across multiple jurisdictions (Churchill and Lowe, 1999).

This telegraph-centric framing creates a first hard limit. Modern subsea data cables are not merely instruments of point-to-point communication but integrated components of global digital ecosystems. They support cloud computing, financial markets, military command systems, and civilian internet access simultaneously. The 1884 Convention does not contemplate this multifunctional reality, nor does it address issues such as strategic interference, data integrity, or systemic economic disruption. As a result, reliance on the Convention as a normative foundation for contemporary cable protection is contestable, particularly where damage does not result in an immediately identifiable “interruption” in the narrow sense envisaged by nineteenth-century drafters.

A second hard limit lies in the Convention’s limited participation and declining practical relevance. Although influential in shaping later treaty language, the 1884 Convention never achieved universal acceptance and has been ratified by a relatively small and historically bounded group of states. Its enforcement mechanisms depend heavily on domestic implementation, and there is no institutional framework to monitor compliance or coordinate responses to violations. In an era in which subsea data cables connect states far beyond the Convention’s original membership, this limited participation undermines both its representativeness and its capacity to function as a meaningful enforcement instrument in global practice (Rothwell and Stephens, 2016). The Convention’s legacy thus lies more in its historical influence than in its present-day operational utility.

3.2 UNCLOS as the central framework

The United Nations Convention on the Law of the Sea constitutes the primary legal framework governing subsea data cables today. Unlike the 1884 Convention, UNCLOS embeds cable regulation within a comprehensive jurisdictional architecture that allocates rights and duties across distinct maritime zones. At its core is the principle that submarine cables are entitled to a high degree of legal protection as instruments of international communication, reflected in the freedom to lay and maintain them beyond territorial seas. On the high seas, all states enjoy the freedom to lay submarine cables, subject to a general obligation of due regard for the interests of other states exercising lawful uses of the sea (UNCLOS, Articles 87 and 112).

The continental shelf regime reinforces this freedom. UNCLOS recognises the right of all states to lay submarine cables on the continental shelf, even where the shelf falls under the sovereign rights of a coastal state. Coastal states may take reasonable measures for the exploration and exploitation of natural resources, but they are expressly prohibited from impeding the laying or maintenance of submarine cables, subject only to limited conditions relating to environmental protection and resource management. This stands in contrast to pipelines, for which coastal states may require consent regarding the delineation of routes. The deliberate distinction between cables and pipelines reflects a normative choice to prioritise the uninterrupted flow of international communications over coastal regulatory control (Tanaka, 2019).

This architecture reveals the doctrinal pivot that underpins jurisdictional gaps in subsea data cables. UNCLOS is highly effective at securing freedoms of installation and maintenance, but it is structurally weak when it comes to protection, investigation, and enforcement. The Convention obliges states to adopt laws and regulations providing for the punishment of intentional or negligent cable damage, yet it offers no dedicated enforcement mechanism and allocates criminal jurisdiction primarily to flag states. Coastal states’ enforcement powers beyond territorial waters remain functionally constrained, even when cable damage directly affects their economic or security interests (Kraska, 2011).

The result is a legal regime that treats subsea data cables as globally valuable infrastructure while declining to assign clear responsibility for their protection once they extend beyond zones of full sovereignty. UNCLOS secures access and continuity but leaves accountability fragmented. This imbalance between freedom and enforcement is not accidental; it reflects a deliberate effort to avoid over-extension of coastal jurisdiction and to preserve navigational and communicational freedoms. However, in the context of modern digital dependence and heightened geopolitical competition, this design choice has become a central source of vulnerability within the law of the sea.

4. Mapping Jurisdiction by Maritime Zone

4.1 Internal waters and territorial sea

Within internal waters and the territorial sea, the jurisdictional position of the coastal state is, in formal legal terms, the clearest and strongest. These maritime zones fall under the sovereignty of the coastal state, subject only to limited navigational rights such as innocent passage in the territorial sea. As a consequence, the coastal state enjoys full prescriptive, adjudicative, and enforcement jurisdiction over subsea data cables located within these areas. It may regulate the laying, operation, protection, and repair of cables; investigate incidents of damage; and prosecute responsible natural or legal persons under domestic criminal law (Tanaka, 2019).

From a doctrinal perspective, there is no structural jurisdictional gap at this level. Damage to a subsea data cable within territorial waters can be treated in the same manner as damage to any other item of critical infrastructure situated on land or within internal waters. The coastal state may exercise police powers, conduct inspections, seize vessels, and initiate criminal proceedings without the constraints that apply beyond the territorial sea. In theory, this creates a zone of legal certainty and effective control.

In practice, however, effectiveness depends heavily on domestic implementation. UNCLOS does not itself criminalise cable damage; it obliges states to adopt national legislation to that effect. Where domestic law does not specifically address subsea cable interference, prosecution may rely on general offences relating to property damage, maritime safety, or environmental harm, which may not be well-suited to capturing the scale or strategic significance of cable disruption. Regulatory design also matters. Inadequate monitoring, weak penalties, or fragmented administrative competence can undermine enforcement even where jurisdiction is formally complete (Churchill and Lowe, 1999). Territorial sovereignty, therefore, guarantees legal authority, but not necessarily regulatory adequacy.

4.2 Exclusive Economic Zone and continental shelf

The jurisdictional picture changes fundamentally once a cable incident occurs in the exclusive economic zone or on the continental shelf. These maritime zones are not subject to coastal state sovereignty but to a functional allocation of rights and duties. The coastal state enjoys sovereign rights for the purpose of exploring and exploiting natural resources and has limited jurisdiction over specific activities, such as marine scientific research and environmental protection. It does not possess general territorial jurisdiction over all activities taking place within these zones (Rothwell and Stephens, 2016).

This functional nature of coastal state rights is central to understanding jurisdictional gaps in subsea data cables. UNCLOS explicitly recognises the right of all states to lay and maintain submarine cables in the EEZ and on the continental shelf. Coastal states may not impede this activity and may regulate it only to the extent necessary to protect resource-related interests or the marine environment. Cable protection as such does not fall neatly within these heads of jurisdiction. As a result, coastal state authority over foreign actors who damage cables in the EEZ is not inherent or residual; it must be grounded in a specific competence conferred by the Convention (Kraska, 2011).

This creates a core enforcement gap. A cable may be physically located within a coastal state’s EEZ, economically vital to that state, and strategically sensitive, yet the coastal state may lack criminal jurisdiction over a foreign vessel or crew responsible for damaging it unless the conduct can be linked to an expressly recognised jurisdictional basis. In most cases, criminal jurisdiction defaults to the flag state of the vessel involved. Coastal enforcement powers such as boarding, detention, or arrest are severely limited, particularly where the incident does not involve pollution, resource exploitation, or other activities expressly regulated by UNCLOS.

An under-analysed consequence of this structure concerns civil jurisdiction. Even where criminal jurisdiction is unavailable or restricted, the possibility of pursuing civil claims before coastal courts remains legally uncertain. Some domestic courts have rejected civil jurisdiction over damage occurring in the EEZ on the ground that the zone does not form part of the state’s territory and that the relevant activity falls outside its sovereign rights. Other courts have accepted jurisdiction in limited circumstances, often relying on private international law doctrines rather than clear principles of the law of the sea. This inconsistency undermines legal predictability and further weakens accountability for cable damage beyond territorial waters (Guilfoyle, 2015).

4.3 High seas and areas beyond national jurisdiction

Jurisdictional deficits are most acute on the high seas and in areas beyond national jurisdiction. In these spaces, no state may claim sovereignty, and legal authority is structured around the principle of exclusive flag-state jurisdiction over vessels. Subsea data cables may be laid freely by all states, and their protection depends almost entirely on the willingness and capacity of flag states to regulate the conduct of vessels flying their flags (UNCLOS, Articles 87 and 113).

This model generates structural weaknesses. Flag states vary widely in their regulatory standards, enforcement capacity, and political incentives. Open registries and flags of convenience may lack effective oversight, while even capable flag states may be reluctant to investigate or prosecute incidents involving complex technical evidence or politically sensitive circumstances. Third states affected by cable damage generally lack authority to intervene directly, investigate vessels, or compel cooperation unless a recognised exception to exclusive flag-state jurisdiction applies (Kraska, 2011).

Unlike piracy, there is no generally accepted universal jurisdiction regime for intentional damage to subsea data cables. Nor does UNCLOS provide boarding or seizure powers comparable to those applicable in cases of piracy or unauthorised broadcasting. The absence of such exceptions means that even clear evidence of interference may not translate into lawful enforcement action by states other than the flag state. The high seas thus represent a space where subsea data cables are legally protected in principle but operationally vulnerable, with accountability dependent on a jurisdictional model poorly suited to contemporary security threats.

Read as a whole, the allocation of jurisdiction by maritime zone reveals a systematic pattern. Legal authority decreases as cables move further from territorial sovereignty, precisely as practical vulnerability increases. This spatial mismatch lies at the heart of jurisdictional gaps in subsea data cables and frames the enforcement and accountability challenges examined in the subsequent sections.

5. Jurisdictional Bases and Why They Fail in Cable Incidents

5.1 Coastal state jurisdiction

Coastal state jurisdiction over subsea data cables reaches a clear doctrinal ceiling once cables extend beyond the territorial sea. The exclusive economic zone and the continental shelf are governed by a functional allocation of rights rather than by territorial sovereignty. UNCLOS exhaustively lists the heads of jurisdiction available to the coastal state in these zones, centring them on natural resource exploitation, marine scientific research, and environmental protection. General authority to regulate or enforce protection of subsea data cables does not appear among these enumerated competences (Rothwell and Stephens, 2016).

This omission is not accidental. The Convention reflects a deliberate rejection of residual coastal jurisdiction in the EEZ. Coastal states may act only within the scope of rights expressly conferred upon them, while all other activities remain governed by high seas freedoms. Submarine cables fall squarely within this latter category. The right of all states to lay and maintain cables in the EEZ and on the continental shelf is framed as a freedom that persists even in areas subject to coastal resource rights. As a consequence, cable protection cannot be inferred as an implied extension of coastal authority unless it can be linked to a specific functional competence recognised by UNCLOS, such as pollution prevention or resource management (Tanaka, 2019).

The practical consequence is significant. When foreign nationals or foreign-flagged vessels damage a subsea data cable beyond the territorial sea, the coastal state whose economy or security is affected may lack enforcement jurisdiction altogether. It may be unable to board the vessel, initiate criminal proceedings, or compel cooperation, even if the damage occurred directly above its continental shelf. This creates a legal discontinuity between physical proximity and legal authority, leaving coastal states dependent on the willingness of other jurisdictions to act. In operational terms, cable incidents in the EEZ often fall into a zone of legal ambiguity where no state possesses both the incentive and the competence to enforce accountability (Kraska, 2011).

5.2 Flag state jurisdiction

In the absence of coastal enforcement competence, responsibility for regulating and prosecuting cable damage shifts primarily to flag states. UNCLOS establishes this allocation through a combination of general principles and specific provisions. Article 113 obliges states to adopt laws and regulations providing for the punishment of wilful or negligent breaking or injury of submarine cables by ships flying their flag or by persons subject to their jurisdiction. This obligation applies on the high seas and, through the cross-referencing structure of the Convention, extends to cable activities in the EEZ and on the continental shelf (Churchill and Lowe, 1999).

Article 97 further reinforces flag-state primacy in matters of penal jurisdiction arising from incidents of navigation. Where cable damage results from navigational conduct, criminal proceedings may be instituted only by the flag state or the state of nationality of the person involved. Although originally designed to prevent overlapping criminal claims in maritime collisions, this provision can also limit coastal or third-state attempts to assert jurisdiction over cable incidents framed as navigational accidents (Rothwell and Stephens, 2016).

Despite its centrality, flag-state jurisdiction suffers from structural weaknesses that undermine its effectiveness in practice. One problem arises from the prevalence of flags of convenience and registries with limited enforcement capacity. States that derive economic benefit from vessel registration may lack the institutional resources or political will to investigate technically complex subsea incidents occurring far from their territory. Even where laws criminalising cable damage exist on paper, enforcement may be minimal or absent (Kraska, 2011).

A more serious weakness emerges in cases of state-backed or state-tolerated interference. If a cable incident is linked to strategic objectives or hybrid operations, the flag state of the vessel involved may have little incentive to prosecute, or may itself be implicated in the conduct. International law provides no effective mechanism to compel a flag state to act in such circumstances, short of invoking state responsibility, which itself requires attribution and proof that are difficult to establish in the maritime domain. Flag-state exclusivity thus becomes a shield against accountability rather than an enforcement vehicle.

5.3 Port state jurisdiction

Port state jurisdiction offers a potential, but narrowly confined, avenue for mitigating jurisdictional gaps in subsea data cable incidents. When a vessel suspected of damaging a cable enters a foreign port, the port state may exercise jurisdiction over matters connected to port entry, safety, and compliance with applicable regulations. This can create opportunities to inspect vessels, preserve evidence, and investigate related offences such as falsification of records or violations of port regulations (Guilfoyle, 2015).

However, port state jurisdiction remains situational and derivative. It does not displace the primary allocation of criminal jurisdiction under UNCLOS, which continues to favour flag states for conduct occurring on the high seas or in the EEZ. Port states generally lack authority to prosecute the underlying act of cable damage unless domestic law provides a clear extraterritorial basis or the conduct falls within a recognised exception. Their powers are therefore often limited to ancillary measures rather than direct enforcement of cable protection norms.

For this reason, port state jurisdiction should be understood as a gap-mitigation tool rather than a solution. It can assist in evidence gathering, delay further harmful activity, and increase the costs of non-compliance, but it cannot substitute for a coherent allocation of jurisdiction over cable incidents. Its effectiveness depends on chance port calls and cooperative domestic legislation, making it an unreliable foundation for systematic accountability.

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6. Accountability After Damage

6.1 Criminal accountability

Criminal accountability for damage to subsea data cables illustrates the difference between formal treaty obligation and effective enforcement. UNCLOS Article 113 requires states to adopt laws and regulations providing for the punishment of wilful or negligent breaking or injury of submarine cables by ships flying their flag or by persons subject to their jurisdiction. This provision establishes a duty of legislative action rather than a self-executing criminal norm. It does not define offences, prescribe penalties, allocate investigative authority, or create any supervisory mechanism to assess compliance. As a result, implementation varies widely across states, both in substance and in practice (Churchill and Lowe, 1999).

The absence of an enforcement architecture has predictable consequences. Many states have enacted minimal or outdated provisions that technically satisfy Article 113 but are rarely applied. Others rely on general maritime or property offences that were not designed to address complex subsea infrastructure damage. There is no international reporting requirement, no monitoring body, and no dispute-settlement trigger specific to under-implementation of cable protection laws. Unlike environmental treaties or safety conventions that incorporate inspection regimes or compliance committees, UNCLOS leaves criminal enforcement entirely to domestic discretion (Rothwell and Stephens, 2016).

This design weakness is amplified by the jurisdictional structure discussed earlier. Even where a state has criminalised cable damage, its laws apply primarily to vessels flying its flag or to nationals under its jurisdiction. Incidents involving foreign vessels in the EEZ or on the high seas, therefore, depend on flag-state willingness to investigate and prosecute. Empirical practice suggests that prosecutions are rare, particularly where incidents occur far from national territory, involve technical evidence, or lack immediate political salience. The treaty obligation exists, but it does not translate into systematic accountability, leaving criminal law as a largely symbolic safeguard in many cable incidents (Kraska, 2011).

6.2 Civil accountability

Civil accountability for subsea data cable damage is even more fragile than its criminal counterpart. International law does not allocate civil jurisdiction explicitly, leaving the issue to domestic courts applying national law and private international law doctrines. Outside territorial waters, many coastal courts have been reluctant to assert jurisdiction over damage occurring in the EEZ, particularly where the conduct does not fall within an exclusive or sovereign-rights competence recognised under UNCLOS. The functional nature of coastal rights in the EEZ has been interpreted by some courts as precluding general civil jurisdiction over foreign actors whose conduct does not relate to resource exploitation or environmental protection (Guilfoyle, 2015).

This judicial caution creates a significant accountability gap. Cable operators affected by damage in the EEZ may find that no coastal forum is willing to hear their claims, even when the economic impact is substantial, and the physical location of the cable is closely connected to the coastal state. Litigation may then be redirected to the courts of the flag state, the state of incorporation of the operator, or other jurisdictions with tenuous links to the incident. Each option introduces procedural complexity, increased costs, and uncertainty regarding applicable law.

In rem actions against vessels offer a theoretical alternative. Where a vessel suspected of causing damage enters a port, claimants may seek to arrest the vessel as security for civil claims. Such actions can provide leverage and, in some cases, compensation. However, they are practically prohibitive as a systematic deterrent. They depend on fortuitous port calls, require rapid mobilisation of legal resources, and often involve complex evidentiary burdens. They also do little to address intentional or state-tolerated interference, where the responsible actors may structure operations to avoid exposure to civil enforcement. Civil remedies, therefore, exist in principle but fail to provide a reliable or predictable pathway to accountability for cable damage beyond territorial sovereignty (Tanaka, 2019).

6.3 Regulatory duties: who must protect and maintain cables?

Regulatory responsibility for subsea data cables reveals a pronounced normative asymmetry. Cable operators and owners are subject to a range of private-law and regulatory obligations relating to maintenance, repair, and continuity of service. Contracts governing cable consortia typically allocate responsibilities for funding repairs, coordinating maintenance vessels, and compensating other users for service interruptions. These duties are detailed and enforceable, reflecting the commercial necessity of operational resilience (Burnett and Beckman, 2019).

By contrast, public-law duties to protect cables against external interference are weakly articulated. UNCLOS emphasises the obligation of states to respect cables and to criminalise their damage, but it does not assign any state a clear, proactive duty to protect cables or to monitor activities in their vicinity. Coastal states are limited by the functional scope of their jurisdiction in the EEZ, while flag states bear responsibility without corresponding incentives or oversight. The result is a regulatory environment in which operators shoulder the costs of vulnerability, while perpetrators face diffuse and uncertain accountability.

This asymmetry has broader systemic implications. Subsea data cables are critical to the functioning of the global economy and international security, yet their protection relies heavily on private risk management rather than coordinated public authority. Where damage occurs, regulatory responses tend to focus on restoring service rather than on attributing responsibility or preventing recurrence. The absence of clearly allocated public-law protection duties thus reinforces the jurisdictional gaps in subsea data cables and perpetuates a cycle in which resilience substitutes for accountability rather than complementing it.

7. The Hard Cases: Sabotage, Hybrid Operations, and Attribution

7.1 Intentional damage vs. “regular marine activity” assumptions in UNCLOS cable provisions

The most difficult legal problems surrounding jurisdictional gaps in subsea data cables arise when damage is intentional rather than accidental. The cable-related provisions of UNCLOS were drafted on the assumption that interference would occur primarily as a by-product of ordinary maritime activities such as fishing, anchoring, or navigation. Article 113 addresses “wilful or negligent” injury to cables, yet its structure and context reflect a regulatory logic focused on preventing careless conduct rather than addressing coercive or strategically motivated acts. The provision does not distinguish between isolated incidents and systematic interference, nor does it contemplate campaigns of disruption designed to exert political or economic pressure (Churchill and Lowe, 1999).

This assumption of normal maritime behaviour becomes legally problematic in cases of sabotage or hybrid operations. Intentional cable damage conducted as part of a broader strategy of pressure or destabilisation does not fit easily within the conventional categories of maritime law. It may fall below the threshold of armed conflict, making the law of naval warfare inapplicable, while also exceeding the conceptual scope of ordinary criminal or navigational offences. The absence of a tailored legal framework for such conduct leaves states reliant on general provisions that were never designed to address persistent, covert interference with critical infrastructure (Kraska, 2011).

The mismatch between treaty assumptions and contemporary practice produces enforcement paralysis. States may hesitate to characterise an incident as intentional sabotage without incontrovertible evidence, while the legal consequences of doing so remain uncertain. As a result, even where strategic intent is widely suspected, responses tend to be cautious, fragmented, and legally defensive. This structural hesitation reinforces jurisdictional gaps in subsea data cables by allowing deliberate interference to be treated as anomalous rather than as a foreseeable risk requiring dedicated legal tools.

7.2 Cyber operations and remotely enabled interference

Cyber operations add an additional layer of complexity to cable-related incidents by transforming jurisdictional questions into multidimensional problems. Modern subsea data cables are not only physical objects but also nodes within global information systems. Interference may involve remote manipulation of network management systems, exploitation of landing station vulnerabilities, or coordinated cyber-physical operations that blur the line between digital and physical attack. Each element may occur in a different jurisdiction, multiplying the number of potentially applicable legal regimes (Schmitt, 2017).

This fragmentation has direct consequences for enforceability. Even where the physical damage to a cable is clearly identifiable, the chain of causation may extend across multiple states and involve actors operating through anonymised or proxy systems. Evidentiary standards for attribution become difficult to satisfy, particularly where technical data is classified, commercially sensitive, or controlled by private operators. The cross-border nature of cyber-enabled interference can render otherwise clear legal rules ineffective, as no single state possesses comprehensive jurisdiction over all relevant elements of the conduct (Heintschel von Heinegg, 2020).

Cyber operations, therefore, function as a jurisdictional multiplier. They do not merely add complexity; they amplify existing enforcement gaps by exploiting the decentralised structure of both the internet and the law of the sea. Legal authority remains compartmentalised along territorial, flag, and nationality lines, while harmful effects propagate globally and instantaneously. In this environment, jurisdictional gaps in subsea data cables are not only legal deficiencies but operational vulnerabilities that can be deliberately leveraged.

7.3 Evidentiary and investigative jurisdiction

Effective accountability for subsea data cable incidents depends on a clear distinction between different forms of jurisdiction, each of which operates under separate legal constraints. Jurisdiction to prescribe offences concerns the authority of a state to define conduct as criminal or unlawful under its domestic law. UNCLOS Article 113 addresses this level by obliging states to criminalise cable damage committed by vessels flying their flag or by persons under their jurisdiction. This prescriptive authority, however, does not automatically entail enforcement capacity.

Jurisdiction to board, search, or seize vessels is far more limited. Outside territorial waters, such powers are generally reserved to the flag state unless a recognised exception applies. Cable damage does not attract an enforcement exception comparable to piracy, unauthorised broadcasting, or slave trading. As a result, even where a state has prescribed offences relating to cable damage, it may lack the authority to board or detain a suspect vessel on the high seas or in the EEZ of another state (Tanaka, 2019).

Jurisdiction to investigate seabed incidents and preserve evidence presents an additional challenge. Investigating cable damage requires access to the seabed, specialised equipment, and timely intervention to prevent loss of evidence. UNCLOS does not allocate investigative primacy for such incidents beyond territorial waters, nor does it establish cooperative mechanisms to coordinate evidence preservation. Coastal states may face limits on investigative action in the EEZ, while flag states may lack proximity or technical capability. The absence of an explicit, cable-specific enforcement or investigation regime thus leaves critical evidentiary steps legally and practically uncertain.

Together, these jurisdictional layers reveal why sabotage and hybrid interference represent hard cases for the law of the sea. Legal authority to define offences exists, but powers to investigate, attribute, and enforce are fragmented and incomplete. The lack of a dedicated enforcement exception comparable to piracy boarding powers ensures that jurisdictional gaps in subsea data cables persist precisely where the need for decisive legal action is greatest.

8. Can Sabotage Be Treated as Piracy or Trigger Universal Jurisdiction?

8.1 The doctrinal test under UNCLOS Article 101

Attempts to close jurisdictional gaps in subsea data cables by treating sabotage as piracy encounter substantial doctrinal obstacles. UNCLOS Article 101 defines piracy through a cumulative set of elements that reflect a narrow and historically grounded conception of maritime violence. The act must involve illegal violence or detention, be committed for private ends, and be directed against another ship or persons or property on board such a ship, occurring on the high seas or in areas beyond national jurisdiction. Each of these elements creates friction when applied to intentional interference with subsea data cables (Churchill and Lowe, 1999).

The most significant barrier is the “private ends” requirement. Cable sabotage that forms part of state-directed activity, geopolitical pressure, or hybrid operations is unlikely to satisfy this criterion. Acts undertaken in pursuit of strategic or political objectives fall outside the traditional piracy paradigm, which was designed to address predatory violence for personal gain. Even where state involvement cannot be conclusively proven, the presence of plausible political motivation complicates reliance on piracy as a legal classification, as the evidentiary burden for establishing purely private ends is high (Guilfoyle, 2015).

A second obstacle arises from the object and location elements of the piracy definition. Piracy is framed around violence directed against ships and persons on board ships, not against fixed seabed infrastructure. Subsea data cables are not vessels, and interference with them often occurs without a direct confrontation between ships. Extending piracy to cover damage to stationary infrastructure would require a significant reinterpretation of the object requirement, one that risks undermining the coherence of the piracy regime as a whole (Kraska, 2011).

Expanding piracy in this manner would have far-reaching legal consequences. Piracy triggers universal jurisdiction and grants states extensive enforcement powers, including the right to board, search, and seize vessels on the high seas. These powers represent a major exception to the principle of exclusive flag-state jurisdiction and have traditionally been justified by the exceptional nature of piracy as hostis humani generis. Broadening the definition to encompass cable sabotage would therefore recalibrate the balance of jurisdiction under the law of the sea, a move likely to face strong political resistance and doctrinal caution. States have been reluctant to dilute the piracy framework by stretching it beyond its established contours, particularly where alternative legal pathways remain available, however imperfect they may be (Tanaka, 2019).

8.2 Why is there no “cable equivalent” of piracy boarding powers

The absence of a piracy-based solution highlights a deeper structural gap in the law governing subsea data cables. UNCLOS recognises several exceptions to exclusive flag-state jurisdiction, including piracy, unauthorised broadcasting, and certain safety-related interventions. Each of these exceptions is narrowly defined and accompanied by specific enforcement powers. No comparable exception exists for intentional damage to submarine cables, despite their recognised importance to international communication and economic stability (Rothwell and Stephens, 2016).

The practical result is a persistent enforcement deficit. Third states may detect suspicious behaviour near cable routes through surveillance or intelligence-sharing, yet they often lack a clear legal basis to interdict vessels, conduct boarding operations, or seize equipment. Without the ability to invoke piracy or another recognised exception, such states must defer to flag-state jurisdiction or seek consent from the flag state, a process that may be slow, politically sensitive, or ineffective in urgent situations.

This gap has operational implications. It allows potentially harmful activity to proceed unchecked in areas beyond national jurisdiction, even when the risks are widely recognised. The law of the sea thus protects navigational and communicational freedoms while offering limited tools to address deliberate interference with critical infrastructure. The absence of a “cable equivalent” to piracy boarding powers reflects a cautious approach to jurisdictional expansion, but it also underscores the mismatch between contemporary security threats and the enforcement mechanisms available under existing treaty law.

9. State Responsibility and the Use-of-Force Framework

9.1 Attribution to a state: standards and friction points

When subsea data cable interference raises suspicions of state involvement, the legal analysis shifts from individual criminal responsibility to the law of state responsibility. This transition introduces a distinct set of attribution challenges that help explain why accountability gaps persist even in cases where political or strategic intent appears evident. Attribution under international law operates on three analytically separate levels that are often conflated in public discourse but must be distinguished for legal assessment.

The first level is technical attribution. This concerns the ability to identify, through forensic, digital, or physical evidence, the immediate source of the interference. In the context of subsea data cables, technical attribution is inherently difficult. Damage occurs in remote environments, often at great depth, where evidence collection is slow, costly, and dependent on specialised vessels. Where cyber elements are involved, technical attribution may require access to proprietary network data, classified intelligence, or cross-border cooperation with private operators. Technical uncertainty alone can delay or derail any legal response (Schmitt, 2017).

The second level is evidentiary sufficiency. Even where technical indicators point towards a particular actor, international law demands a standard of proof that is persuasive and defensible in inter-state relations. States may possess intelligence assessments that support strong suspicions, yet be unwilling or unable to disclose the underlying evidence without compromising sources and methods. This creates a recurring dilemma: politically convincing attribution may fall short of legally sufficient proof capable of sustaining claims before international courts or justifying countermeasures under the law of state responsibility (Heintschel von Heinegg, 2020).

The third level is legal attribution under the rules of state responsibility. Conduct must be attributable to a state through recognised criteria, such as the actions of state organs, entities exercising governmental authority, or private actors acting under the state’s direction or control. In the maritime domain, especially in hybrid operations, states may rely on proxies, deniable assets, or ostensibly civilian vessels, making it difficult to satisfy the legal tests for attribution. Even where technical and evidentiary indicators align, the absence of clear proof of state control can prevent formal attribution, preserving legal ambiguity and shielding states from responsibility (Crawford, 2013).

These layered standards explain why jurisdictional gaps in subsea data cables persist even when suspicion is widespread. International law sets a high threshold for attribution, reflecting the seriousness of inter-state accusations. In the cable context, this threshold often cannot be met, allowing harmful conduct to remain legally unattributed and reinforcing enforcement paralysis.

9.2 Countermeasures and enforcement below the armed-attack threshold

The use-of-force framework further constrains legal responses to subsea data cable incidents. Many instances of cable damage cause significant economic disruption, affect national security, and undermine essential services. Yet they may not reach the threshold of an “armed attack” under the United Nations Charter. Without qualification as an armed attack, the right of self-defence is not triggered, and forceful responses risk violating the prohibition on the use of force (Gray, 2018).

This constraint is central to understanding state behaviour. Even where a state strongly suspects hostile intent, resorting to force in response to cable interference carries legal and political risk. The absence of physical violence against persons, the covert nature of the conduct, and the difficulty of attribution all weigh against characterising such incidents as armed attacks. As a result, states are often left operating below the self-defence threshold, where available enforcement tools are limited and legally delicate.

Lawful responses nonetheless exist within this constrained space. Non-forcible countermeasures under the law of state responsibility may be available if attribution can be established and the measures are proportionate and reversible. These may include suspension of certain cooperative arrangements, targeted economic restrictions, or other measures designed to induce compliance without escalating conflict. Cooperative law enforcement responses, such as joint investigations or coordinated port state action, may also be pursued, although their effectiveness depends on political alignment and information sharing. Sanctions-like measures, adopted unilaterally or collectively, represent another avenue, but they too require a defensible evidentiary basis to withstand legal and diplomatic scrutiny (Crawford, 2013; Gray, 2018).

Across all these options, the evidentiary burden remains decisive. Without sufficiently robust attribution, even non-forcible measures risk being characterised as unlawful retaliation. This reinforces a structural imbalance: subsea data cables are vulnerable to disruptive acts that fall short of armed attack, while the legal tools available to respond are narrow, conditional, and evidence-intensive. The interaction between state responsibility and the use-of-force framework thus leaves a wide zone of strategic activity that is legally regulated in principle but weakly enforceable in practice, deepening jurisdictional gaps in subsea data cables.

10. Dispute Settlement and Why It Rarely Closes the Gap

10.1 UNCLOS dispute settlement

The dispute settlement system established under UNCLOS offers an important, yet limited, avenue for addressing jurisdictional gaps in subsea data cables. Its primary value lies in interpretive clarification rather than in direct enforcement. Through adjudication before the International Tribunal for the Law of the Sea, arbitral tribunals, or the International Court of Justice, states may seek authoritative interpretations of treaty provisions governing jurisdiction, due regard, and duties of cooperation. Such clarification can help delineate the contours of coastal and flag state authority, resolve disagreements over the scope of functional rights in the EEZ, and articulate the content of general obligations relevant to cable protection (Tanaka, 2019).

In this sense, dispute settlement can contribute to normative development. Judicial reasoning may illuminate how existing provisions apply to modern subsea data systems, even where those provisions were drafted in a different technological era. Clarification of concepts such as due regard or reasonable measures may influence subsequent state practice and inform domestic implementation. Over time, this can narrow interpretive uncertainty and promote more consistent application of the law of the sea (Rothwell and Stephens, 2016).

However, the limits of dispute settlement are equally clear. Judicial processes are ill-suited to addressing real-time or covert cable interference. Proceedings are slow, retrospective, and dependent on state consent. They cannot compel immediate investigation, preserve fragile seabed evidence, or halt ongoing interference. Even a favourable judgment does not substitute for operational enforcement capacity. Compliance ultimately depends on the willingness of states to implement decisions, and UNCLOS lacks coercive mechanisms to ensure execution beyond diplomatic pressure and reputational costs (Churchill and Lowe, 1999).

As a result, dispute settlement cannot fill the enforcement vacuum exposed by sabotage or hybrid operations. It can clarify what the law requires, but it cannot ensure that those requirements are met in urgent or politically sensitive contexts. The gap between legal articulation and practical enforcement remains largely intact.

10.2 The litigation disincentive problem

Beyond structural limitations, dispute settlement in cable-related matters is further constrained by strong disincentives to litigation. Both states and private operators often perceive adjudication as an unattractive option compared to operational or diplomatic responses. For private cable operators, litigation is costly, slow, and uncertain. It may expose commercially sensitive information, disrupt relationships within cable consortia, or create precedents that affect future operations. Repairing the cable and restoring service is frequently prioritised over pursuing legal accountability (Burnett and Beckman, 2019).

States face parallel disincentives. Initiating formal proceedings may require public disclosure of intelligence, technical assessments, or strategic vulnerabilities. It may escalate political tensions or invite reciprocal claims. In cases involving suspected state involvement, litigation risks hardening positions and reducing diplomatic flexibility. Even where legal arguments are strong, states may judge that the political and security costs of adjudication outweigh its potential benefits (Gray, 2018).

These preferences for secrecy, pragmatism, and diplomacy perpetuate legal ambiguity. Without cases being brought, courts and tribunals have limited opportunities to clarify how UNCLOS applies to contemporary cable incidents. The law remains under-litigated, and interpretive gaps persist. This dynamic reinforces jurisdictional gaps in subsea data cables by depriving the legal system of the iterative clarification that arises from contentious practice, leaving enforcement challenges to be managed through ad hoc, non-transparent means rather than through settled legal doctrine.

11. Reform Options That Do Not Depend on Reopening UNCLOS

11.1 Domestic implementation uplift: making Article 113 real

The most immediately available avenue for reducing jurisdictional gaps in subsea data cables lies in strengthening domestic implementation of existing treaty obligations, particularly UNCLOS Article 113. The provision requires states to criminalise wilful or negligent damage to submarine cables, but its open-textured design has allowed minimalistic and uneven implementation. A meaningful uplift in domestic law does not require new international instruments; it requires states to take Article 113 seriously as a basis for operational enforcement rather than symbolic compliance.

Model domestic provisions would include clearly defined offences tailored to subsea data cables, with penalties calibrated to reflect the scale of economic and security harm caused by interference. Investigative powers must be explicit and technologically informed, enabling authorities to gather digital, navigational, and seabed-related evidence. Corporate liability is also essential, given that cable damage may result from decisions taken at the organisational rather than the individual level. Extraterritorial jurisdictional hooks tied to flag, nationality, or corporate control can further reduce enforcement gaps by extending domestic reach beyond territorial waters, provided they are exercised consistently with international law (Rothwell and Stephens, 2016).

Equally important are fast cooperation channels embedded in domestic legislation. These include obligations to share evidence, respond promptly to requests from other states, and facilitate joint investigations. Without such mechanisms, even robust criminal laws risk remaining dormant in practice. Domestic implementation uplift, therefore, represents a realistic and legally orthodox method of strengthening accountability without altering the treaty framework.

11.2 A cable “registration” concept to anchor jurisdiction

A second reform option addresses the structural ambiguity created by consortium ownership and diffuse control. One way to reduce this ambiguity is to develop a cable “registration” concept that functions as a jurisdictional anchor. This would not involve creating a new treaty regime or altering the legal status of cables under UNCLOS. Instead, it would rely on coordinated domestic or regional practices that associate each cable system with a primary registering state for specific regulatory and enforcement purposes.

The logic is analogous to ship registration, without equating cables to vessels. Registration would not confer sovereignty over the cable or alter freedoms to lay and maintain it. Its function would be narrower: to identify a lead jurisdiction responsible for coordinating protection, investigation, and international cooperation. Such a mechanism could clarify which state is best placed to initiate enforcement action, liaise with flag states, and act as a focal point for evidence preservation and dispute management (Burnett and Beckman, 2019).

This approach would also reduce uncertainty for private operators. A clearly identified regulatory anchor could streamline reporting obligations and reduce fragmentation in legal responses. While registration would not eliminate jurisdictional gaps entirely, it could mitigate the most destabilising effects of consortium complexity by aligning functional responsibility with legal competence.

11.3 Operational cooperation instruments

Beyond domestic reform, practical cooperation instruments offer a further means of narrowing enforcement gaps. Bilateral and regional arrangements can be developed within the existing UNCLOS framework to address operational deficiencies without reopening treaty negotiations. Such instruments can focus on procedures rather than jurisdictional reallocations, making them politically and legally more feasible.

Key elements include structured incident reporting mechanisms that ensure timely notification to affected states and operators; joint investigation protocols that clarify roles, access rights, and evidentiary standards; and agreed methods for preserving seabed evidence before repair operations commence. Rapid repair access and permitting alignment are particularly important. Administrative delays in granting access to cable routes, ports, or repair zones can amplify economic harm and complicate investigations. Coordinated procedures can reduce these delays while respecting coastal state regulatory interests (Kraska, 2011).

These cooperative instruments do not create new legal obligations under international law, but they operationalise existing ones. Their effectiveness depends on trust, technical capacity, and political alignment, yet they offer tangible improvements in resilience and accountability where formal jurisdiction remains fragmented.

11.4 Interpretive evolution without formal amendment

Finally, incremental interpretive evolution offers a way to adapt the law of the sea to contemporary cable risks without formal amendment. Scholarly and state practice has increasingly emphasised the potential for strengthened flag–coastal cooperation pathways, particularly in the EEZ. While coastal states lack residual jurisdiction, nothing in UNCLOS prevents enhanced coordination, information sharing, and consent-based enforcement actions where flag states are willing to cooperate (Tanaka, 2019).

Narrowly tailored readings of existing provisions may also reduce enforcement dead-ends. Interpretations that emphasise duties of due regard and cooperation can support more proactive engagement between states when cable incidents occur, even if they do not expand formal jurisdiction. Such approaches must remain cautious to avoid undermining the balance of freedoms and rights embedded in the Convention.

Piracy analogies require particular restraint. While extending piracy concepts to cable sabotage could unlock powerful enforcement tools, it carries systemic risks to the coherence of the law of the sea. A cautious interpretive stance recognises the appeal of such analogies while resisting their wholesale adoption, favouring instead incremental adjustments grounded in existing legal categories (Guilfoyle, 2015).

Together, these reform options demonstrate that jurisdictional gaps in subsea data cables are not immutable. Meaningful progress can be achieved through domestic implementation, institutional coordination, and careful interpretive development, all without reopening UNCLOS or destabilising its foundational architecture.

12. Conclusion

The analysis demonstrates that the central problem governing subsea data cables is not an absence of applicable law, but a legal architecture structured around freedoms and exclusivity that is poorly aligned with contemporary risk. UNCLOS and related instruments provide a dense normative framework protecting the freedom to lay and maintain cables and allocating primary authority through flag-state jurisdiction. What they do not provide is a correspondingly robust allocation of protective duties, investigative competence, or enforcement authority once cables extend beyond territorial seas. In the exclusive economic zone and on the high seas, jurisdiction fragments along functional and personal lines, leaving no actor with both the incentive and the legal capacity to ensure accountability for intentional or strategically motivated interference. The result is a predictable pattern of enforcement failure that becomes most acute precisely where subsea data cables are most exposed.

This structural imbalance explains why accountability gaps persist even when the strategic importance of cables is widely recognised. Coastal states are constrained by the absence of residual jurisdiction in the EEZ. Flag states retain formal authority but often lack enforcement incentives or capacity. Third states may be affected but remain legally sidelined. The absence of a cable-specific enforcement exception comparable to piracy boarding powers reinforces this fragmentation, ensuring that deliberate interference below the armed-attack threshold can exploit jurisdictional seams without triggering decisive legal response.

For professionals engaged in maritime security, digital infrastructure governance, or international legal design, the practical takeaway is clear. Effective protection of subsea data cables depends on aligning three elements that currently operate in isolation: robust domestic criminalisation paired with real investigative capacity; structured cross-border cooperation that enables evidence preservation and coordinated response; and a clearer jurisdictional anchor for privately owned cable systems that operate beyond territorial sovereignty. Without this alignment, resilience will continue to substitute for accountability, and jurisdictional gaps in subsea data cables will remain a systemic vulnerability rather than a solvable legal problem.

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