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Jonathan Katzman

M.Sc. in cybersecurity governance, Leiden University in Leiden, The Netherlands

Securitization of submarine communications cables (SCCs) forms an important nexus in U.S.-Russia bilateral discussions regarding acceptable uses of cyberspace. Espionage and other activities which involve comprising the integrity of such infrastructure by both the United States and Russia is historically precedented; however, existing laws and norms as they relate to the inviolability of such infrastructure do not reflect their contemporary immeasurable importance in a world increasingly dependent on them for the conveyance of economic, social, and defense data & communications. Furthermore, existing laws and norms as they relate to SCCs largely regulate the protection of such infrastructure under wartime conditions or within territorial state boundaries, and thereby do not reflect current non-traditional modes of undeclared conflict which could serve to compromise the integrity of SCCs, nor the fact that the majority of SCC infrastructure is located in the high seas outside of state legal jurisdiction. In response, the two states seek varying solutions. While both the United States and Russia seek the securitization of informational infrastructure such as SCCs through the creation of a set of global norms by which attacks on such infrastructure are deemed unacceptable, Russia furthermore seeks a more internalized approach, characterizing information and related infrastructure as possessing a sovereign character inextricably linked with the state. The internalization and domestic development of informational infrastructure is sought to decrease Russia’s dependence on and thereby strategic liability in regard to SCC infrastructure they view as largely monopolized by the West.

The strategic significance of the tapping of SCCs should not be viewed as a unitary strategy in the event of conflict between the U.S. and Russia; rather, it should be viewed as a significant component of greater dialogues regarding interstate behavior and conflict in cyberspace. The preceding discussion demonstrated a lack of congruent international law or norms limiting state action taken against the integrity of SCCs. Thereby, this opaque regime in part justifies both American and Russian concerns regarding the viability of SCCs as a secure mode of communication, explaining trends of digital internalization in Russia. However, lack of relevant norms presents a unique opportunity for the United States and Russia to cooperate on the bilateral level in establishing norms recognizing SCCs as essential infrastructure and a common good upon which both states mutually rely upon. In this sense, opportunities for further cooperation and securitization of such infrastructure are theoretically possible.

Submarine communications cables (SCCs) are essential to all contemporary forms of global communications. SCCs are more reliable and able to transfer larger amounts of data compared to other communications media such as satellites, and are thereby the demonstrably preferred global medium for communications data transfer [1]. By the early 2010s, more than 95% of global data transfers were facilitated by SCCs; by the end of the decade, this figure has increased to approximately 99% [2, 3]. Additionally, not only do SCCs convey data which underpin global economies and societies, they furthermore form an important medium for confidential state and military communications. Because of the essential role that SCCs play in facilitating various forms of vital communication, the securitization of such infrastructure is inherently perceived as a matter of state security. Furthermore, the global SCC network is rather fragile, whereby only around 400 SCCs scattered among the world’s oceans carry 97% of all submarine data [4]. As a result of both the fragility and the strategic importance of this essential global communications network, its securitization forms a significant part of wider U.S.-Russia dialogues in regard to justifiable offensive and defensive strategic actions taken in cyberspace.

Just as reliance on SCCs for global communications has increased in the past decades, so have military capabilities designed to disrupt such structures. British and American military observers note that Russian submarine military activity has been increasing steadily since the turn of the millennium [5]. Furthermore, they assert that Russian naval forces possess an increased capacity for cable-tapping, thereby posing a potential threat to the continued integrity of SCC-reliant information and communications [6]. More importantly, any violations of the integrity of data transferred by SCCs are increasingly being perceived as justification for a concrete military response; current U.K. Chief of the Defence Staff Admiral Tony Radakin noted that any attempt to violate the integrity of SCCs, particularly by Russia, could constitute an act of war due to the significant importance of global SCC-dependent communications & data networks for military activities [7]. The perception that violations of cyberspace-derived communications justify a real-world military response is likewise supported by Admiral (ret.) James Foggo III, former Commander of United States Naval Forces Europe-Africa, who notably annunciated SCCs as being as strategically relevant as other forms of sea lines of communication, including maritime routes, ports, and other types of maritime physical infrastructure [8]. Therefore, it is evident that both Russian intelligence and military operations against such infrastructure are an increasing strategic concern for Western powers, thereby supporting the salience of this issue in regard to the contemporary state of the strained U.S.-Russia diplomatic relationship.

Likewise, the integrity of SCCs is also a strategic concern for Russia. In the 2016 Presidential Decree “On the approval of the Information Security Doctrine of Russia,” reliance on foreign communications systems, such as those comprised of and facilitated by SCCs, is noted to be a potential threat to Russia [9]. This, the decree asserts, is the result of the potential for espionage by foreign powers of data belonging to Russia and its citizens through the exploitation of informational infrastructure such as SCCs. Furthermore, the fact that ownership and control of SCCs is unproportionally distributed among states considered hostile to Russia is considered to pose a geopolitical threat to the state, due to the fact that access to such infrastructure could be intentionally limited by Western adversaries in the event of conflict [10]. This notion is supported by General-Major Aleksandr Vladimirov, who opined that the American monopoly on information dissemination and related processes poses a distinct threat to Russia [11]. As a result, Russia seeks to securitize domestic telecommunications facilities, infrastructure, and information through the development of domestic resources which can be substituted for foreign-based infrastructure and thereby be more easily protected from foreign intrusion [12].

Many of the SCCs ultimately connecting to Russia route through NATO-allied and Western-friendly states such as those in Western Europe, Japan, Singapore, etc. (source: TeleGeography 2021).

Furthermore, those SCCs not routing through Western-allied or -friendly states nonetheless route through waters in which adversarial naval assets have the ability to effect operations in order to tap, damage, or destroy such cables (Source: Federalnoe gosudarstvennoe unitarnoe predpriyatie “Morsviazsputnik.”)

There is a demonstrable mutual concern shared by both the United States and its allies and Russia in regard to the securitization of informational infrastructure such as SCCs, due to the essential activities which rely on the dependability of such infrastructure. The following sections will discuss current normative and legal regimes, as well as historical precedents, as they relate to the protection of SCCs and their applicability to modern threats.

A brief note on SCCs & espionage: Continuity or change?

As for the U.S.-Russia bilateral relationship, espionage involving SCCs has significant precedence. The United States engaged in the tapping of Soviet SCCs located in the Sea of Okhotsk and the Barents Sea during the Cold War, gaining significant intelligence regarding Soviet military and political intentions [13]. However, a key distinction between the espionage of the Cold War and espionage today relates to the preponderance of SCCs in the modern age. Whereas most secure military communication took place via satellite in the late 20th century, most confidential information today is conveyed via SCCs. Furthermore, Soviet SCCs were state infrastructure used exclusively for military communications. Conversely, the vast majority of secure state and military communications today take place over privately-owned SCCs carrying consumer data simultaneously [14]. As a result, state efforts to compromise SCCs in the modern era are made more complicated by the fact that SCCs are dual-use technologies, whereby the targeting of such infrastructure has far more significant implications for civilian populations than past manifestations of SCC-related espionage activities. As a result, differing legal obligations may exist for the United States and Russia in terms of espionage activities achieved through the compromise of SCCs than in the past. These legal obligations will be discussed hereafter.

SCCs and international legal & normative regimes

Since the introduction of SCCs in the mid-nineteenth century, numerous international multilateral agreements have been ratified by both the United States and Russia (including its predecessor states) in regard to international obligations towards maintaining the integrity of SCCs.

The 1884 Convention for the Protection of Submarine Telegraph Cables, ratified by both the United States and the Russian Empire, provided for civil penalties for the willful destruction of submarine cables facilitating communication [15]. However, such penalties do not apply to submarine cables located within a state’s territorial waters [16]. Furthermore, Article 15 of the Convention states that “It is understood that the stipulations of this Convention shall in no wise affect the liberty of action of belligerents.” Acts of sabotage, such as the willful destruction of SCCs, are considered a form of belligerency under prevailing notions of international law [17]. As a result, this convention is ineffective in preventing the modes of potential sabotage of SCCs feared by the United States and Russia. This is due to the fact that the provisions of this treaty do not accurately reflect the offensive state-initiated actions by which the integrity of SCCs could be compromised. Furthermore, the 1907 Hague Conventions asserted the right of belligerent states to seize or destroy SCCs in cases of “absolute necessity,” justifying SCCs as legitimate military targets. Of important note, the 1907 Conventions serve as the only international agreements to date which explicitly define SCCs as being legitimate military targets.

The 1958 Geneva Conventions on the Law of the Sea, ratified by both the United States and the Soviet Union, further annunciated the ability for sovereign states to freely lay and maintain submarine cables [18]. Furthermore, the established norm that permitted states to take reasonable measures to protect such cables was not challenged. However, the only policing rights relating to the protection of property such as SCCs explicitly identified in the Law of the Sea are primarily concerned with piracy, an activity inherently characterized by the involvement of non-state actors [19]. As a result, the implicit prerogative of states to engage in offensive or defensive action in regard to compromising the integrity of SCCs remained unchallenged. Furthermore, states were obligated to enact legislation to punish those responsible for those willfully or negligently damaging SCCs. However, the spirit of these requirements also assumes actions by a private actor, as opposed to the contemporary threat of state actors causing action to damage such infrastructure. Similarly, The 1982 United Nations Convention on Law of the Sea, acting as the succeeding convention to the 1958 Conventions specifically annunciates both the right of the state to lay SCCs and the obligation to enact legislation to punish those who willfully or negligently damage SCCs with a similar perception that private actors are the ultimate recipients of such sanctions [20]. While acts of terrorism or crimes characterized by personal gain would benefit from such frameworks, neither of these sets of conventions serve to moderate destructive behavior taken by states against SCCs and relevant infrastructure.

Despite the importance placed on international law by the United States and Russia in regulating their bilateral relations, domestic law serves as significant justification in regard to the surveillance of undersea cables as well. Shvets (2017) proposes the synthesis of domestic legislation to compensate for the gaps in the international legal conventions to securitize such infrastructure. However, the Asia Pacific Economic Cooperation challenges the notion that threats to SCCs can be resolved through developments in domestic legislation, as SCCs are inherently transbordered infrastructure, with the majority of such infrastructure located in the high seas and falling outside the jurisdiction of any particular sovereign state except when provided for by the aforementioned conventions [21]. Furthermore, domestic legislation has been previously used to justify the violation of the integrity of SCCs, rather than to protect them. During the Cold War, the United States tapped Soviet SCCs using constitutional law as justification for such activities. The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable search and seizure by the state. However, according to Sontag & Drew (1998), “[electronic] currents emanating from buildings, homes, or cables” were not found to be considered legally-protected forms of communications data which are considered to have such privileges of privacy. Furthermore, deficits currently exist in the Criminal Code of Russia, whereby no crime relating to the willful destruction of tampering of SCCs exists [22]. As a result, developments in domestic legislation are unlikely to be helpful in tempering American and Russian concerns regarding maintaining the integrity of SCCs.

While the governance of submarine cables has historical legal precedence, norms have also played a significant role in determining state behavior when it comes to the tampering of SCCs. For example, the 2010 United Nations declaration that SCCs are “critical communications infrastructure… vitally important to the global economy and national security of all states” demonstrates the global recognition of the strategic significance of such infrastructure [23]. However, historical precedent points towards notions of SCCs as legitimate military targets as supported by the aforementioned developments in international law; the Spanish-American War, the First World War, and the Second World War saw belligerents engage in the destruction of SCCs in order to derive a tactical advantage [24]. However, it is important to note that these actions were taken during wartime, and do not give indication as to the extent to which the tampering or destruction of SCCs in peacetime would have been acceptable. Another issue concerning legal norms in regard to conflict is that typically, the destruction of infrastructure used by both military and civilian assets is generally considered acceptable as long as the damage incurred by non-combatants as a result of the destruction of such infrastructure is proportionate to a particular military objective. However, such reliance on SCCs for nearly every measure of civic and military life in contemporary times makes the civilian cost of damage to such infrastructure disproportionate to most military objectives. The evident gaps in norms relating to the interruption of data systems, such as those facilitated by SCCs in peacetime, is recognized by Russia. In the 2016 Presidential Decree “On the approval of the Information Security Doctrine of Russia,” the lack of “international legal norms” concerning state interaction in cyberspace is annunciated as a strategic threat to Russia and its informational sovereignty [25].

Looking towards the future, the United States and Russia have made concerted steps to establish a common set of cybernorms. During the 2021 Russia-United States Summit in Geneva, President Biden annunciated that cyberattacks on sixteen critical infrastructure sectors, including the communications sector, would lead to cyberspace-based retaliation [26]. The communications sector forms one of the sixteen critical sectors, and furthermore “terrestrial” and “wireline” transmission systems such as SCCs are explicitly mentioned as comprising such critical infrastructure [27, 28]. Likewise, Russia has made a concerted effort to promote cyber norms emphasizing informational sovereignty in global forums [29]. In this regard, approaches to norm formation concerning cyberwarfare and other offensive activities involving SCCs are encouraged by both sides of the bilateral relationship, but may very well derive from differing levels of governance and not necessarily within the context of the U.S.-Russia bilateral relationship itself.

An additional note: SSCs as a public-private nexus

Shvets (2020, p. 232) notes that current international legal regimes regarding SCCs generally address state activity and associated rights and obligations. However, the majority of cables today are laid and maintained by private corporate actors. This notion is supported by Harbin (2021, p. 356), who notes that 95% of all U.S. Department of Defense international communications are routed through commercially-owned SCCs. Historical debates exist as to the extent that states engaging in undeclared hostilities are responsible for the remuneration of damages resulting from such activities [30]. More contemporary scholarship acknowledges the right of individuals to receive compensation for damages incurred during undeclared conflict; however, the status of corporations as legal persons in regard to international law and the lack of international enforcement mechanisms by which such claims can be processed makes the moderation of U.S.-Russia cyberspace conflict effected against SCCs through legal obligations to individual non-state parties such as corporations dubious [31].

Conclusion

While the strategic significance of SCCs should not be understated, it should nonetheless be noted that land-based communications cables form a significant part of such infrastructure. As a result, the strategic significance of the tapping of SCCs should not be viewed as a unitary strategy in the event of conflict between the U.S. and Russia; rather, it should be viewed as a significant component of greater dialogues regarding interstate behavior and conflict in cyberspace [32]. The preceding discussion demonstrated a lack of congruent international law or norms limiting state action taken against the integrity of SCCs. Thereby, this opaque regime in part justifies both American and Russian concerns regarding the viability of SCCs as a secure mode of communication, explaining trends of digital internalization in Russia. However, lack of relevant norms presents a unique opportunity for the United States and Russia to cooperate on the bilateral level in establishing norms recognizing SCCs as essential infrastructure and a common good upon which both states mutually rely upon. In this sense, opportunities for further cooperation and securitization of such infrastructure are theoretically possible.

References

Asia-Pacific Economic Cooperation. “Economic impact of submarine cable disruptions.” Published December 2012. https://www.apec.org/docs/default-source/Publications/2013/2/Economic-Impact-of-Submarine-Cable-Disruptions/2013_psu_-Submarine-Cables.pdf.

Cybersecurity & Infrastructure Security Agency. “Communications sector.” Accessed February 9, 2022. https://www.cisa.gov/communications-sector.

Eagleton, Clyde and Frederick Dunn, “Responsibility for damages to persons and property of aliens in undeclared war,” Proceedings of the American Society of International Law at its Annual Meeting 32 (1938): 127-146.

Federalnoe gosudarstvennoe unitarnoe predpriyatie “Morsviazsputnik.” “Proyekt stroitelstva transarkticheckoy podvodnoy volokonno-opticheckoy linii svyazi Murmansk-Vladivostok.” Accessed February 8, 2022. https://www.marsat.ru/Polarexpress_project_description.

Foggo, James. “One decade, two continents: a discussion with the Commander of US Naval Forces Europe−Africa.” Webinar, International Institute for Strategic Studies, June 25, 2020. https://www.iiss.org/events/2020/06/discussion-commander-us-naval-forces-europe-africa.

Graf-Brugère, Anne-Laurence. “The Derogation Clause.” In The 1949 Geneva Conventions: A commentary, edited by Andrew Clapham, Paola Gaeta and Marco Sassòli, 1123-1134. Oxford: Oxford University Press, 2015.

Gosudarstvennaya Duma. “Ugolovniy Kodeks Rossiiskoi Federatsii.” Adopted May 24, 1996.

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Kiyan, Olga. “Establishing cybersecurity norms in the United Nations: The role of U.S.-Russia divergence.” Harvard International Review. Published November 26, 2021. https://hir.harvard.edu/establishing-cybersecurity-norms-in-the-united-nations-the-role-of-u-s-russia-divergence/.

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Sanger, David, Michael Shear and Anton Troianovski. “Biden and Putin express desire for better relations at summit shaped by disputes.” The New York Times. Last updated October 31, 2021. https://www.nytimes.com/2021/06/16/world/europe/biden-putin-geneva-meeting.html

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Shvets, Daria. “The experience of Russia in the legal regulation of submarine cables.” Central and Eastern European Legal Studies, no. 1 (2017): 163-199.

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1. Katheryn Young, “The economic importance of submarine cables,” Semaphore, no. 2 (2012), https://www.navy.gov.au/sites/default/files/documents/Semaphore_2012_2.pdf.

2. Ibid.

3. H. I. Sutton, “How Russian spy submarines can interfere with undersea internet cables,” Forbes, published August 19, 2020, https://www.forbes.com/sites/hisutton/2020/08/19/how-russian-spy-submarines-can-interfere-with-undersea-internet-cables/.

4. Dennis Harbin, “Targeting submarine cables: New approaches to the law of armed conflict in modern warfare,” Military Law Review 229, no. 3 (2021): 351.

5. PA Media, “UK military chief warns of Russian threat to vital undersea cables,” The Guardian, published January 8, 2022, https://www.theguardian.com/uk-news/2022/jan/08/uk-military-chief-warns-of-russian-threat-to-vital-undersea-cables.

6. Harbin, “Targeting submarine cables,” 349.

7. PA Media, “Russian threat to vital undersea cables.”

8. James Foggo, “One decade, two continents: a discussion with the Commander of US Naval Forces Europe−Africa” (webinar, International Institute for Strategic Studies, June 25, 2020). https://www.iiss.org/events/2020/06/discussion-commander-us-naval-forces-europe-africa.

9. Prezident Rossiiskoi Federatsii, “Ob utverzhdenii doktriniy informatsionnoy bezopasnosti Rossiiskoi Federatsii,” Administratsiya Prezidenta Rossii, published December 5, 2016, http://static.kremlin.ru/media/acts/files/0001201612060002.pdf.

10. Prezident Rossiiskoi Federatsii, “Ob utverzhdenii doktriniy informatsionnoy bezopasnosti Rossiiskoi Federatsii.”

11. Aleksandr Vladimirov, “Bolshaya amerikanskaya voina,” Voyenno-promyshlennyi Kuryer 254, no. 38 (2008).

12. Prezident Rossiiskoi Federatsii, “Ob utverzhdenii doktriniy informatsionnoy bezopasnosti Rossiiskoi Federatsii.”

13. Sherry Sontag and Christopher Drew, Blind Man’s Bluff: The Untold Story of American Submarine Espionage (New York: Public Affairs, 1998).

14. Harbin, “Targeting submarine cables,” 356.

15. National Bureau of Asian Research, “Submarine cables,” accessed February 8, 2022, https://www.nbr.org/publication/submarine-cables/.

16. Ibid.

17. Anne-Laurence Graf-Brugère, “The Derogation Clause,” in The 1949 Geneva Conventions: A commentary, eds. Andrew Clapham, Paola Gaeta and Marco Sassòli (Oxford: Oxford University Press, 2015): 1127.

18. National Bureau of Asian Research, “Submarine cables.”

19. International Law Commission, “Articles concerning the Law of the Sea with commentaries,” United Nations, 1956, https://legal.un.org/ilc/texts/instruments/english/commentaries/8_1_8_2_1956.pdf.

20. United Nations Convention on the Law of the Sea, Art. 112-114.

21. Asia-Pacific Economic Cooperation. “Economic impact of submarine cable disruptions.” Published December 2012. https://www.apec.org/docs/default-source/Publications/2013/2/Economic-Impact-of-Submarine-Cable-Disruptions/2013_psu_-Submarine-Cables.pdf.

22. Daria Shvets, “The experience of the Russian Federation in the legal regulation of submarine cables,” Central and Eastern European Legal Studies, no. 1 (2017): 183-184.

23. Harbin, “Targeting submarine cables,” 354.

24. Ibid., 364-365.

25. Prezident Rossiiskoi Federatsii, “Ob utverzhdenii doktriniy informatsionnoy bezopasnosti Rossiiskoi Federatsii.”

26. David Sanger, Michael Shear and Anton Troianovski, “Biden and Putin express desire for better relations at summit shaped by disputes,” The New York Times, last updated October 31, 2021, https://www.nytimes.com/2021/06/16/world/europe/biden-putin-geneva-meeting.html.

27. Office of the Press Secretary, “Presidential Policy Directive - Critical infrastructure security and resilience,” The White House, published February 12, 2013, https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil.

28. Cybersecurity & Infrastructure Security Agency, “Communications sector,” accessed February 9, 2022, https://www.cisa.gov/communications-sector.

29. Olga Kiyan, “Establishing cybersecurity norms in the United Nations: The role of U.S.-Russia divergence,” Harvard International Review, published November 26, 2021, https://hir.harvard.edu/establishing-cybersecurity-norms-in-the-united-nations-the-role-of-u-s-russia-divergence/

30. Clyde Eagleton and Frederick Dunn, “Responsibility for damages to persons and property of aliens in undeclared war,” Proceedings of the American Society of International Law at its Annual Meeting 32 (1938): 127-146.

31. Elke Schwager, “The right to compensation for victims of an armed conflict,” Chinese Journal of International Law 4, no. 2 (2005): 417-439.

32. Justin Sherman, “Cord-cutting, Russian style: Could the Kremlin sever global internet cables?” Atlantic Council, last updated February 4, 2022, https://www.atlanticcouncil.org/blogs/new-atlanticist/cord-cutting-russian-style-could-the-kremlin-sever-global-internet-cables/.


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