Overseeing the Ties that Bind
By Ravi Nayyar
Holding the Indo-Pacific Together is about the weird and wonderful world of submarine communications cables in the Indo-Pacific, with a focus on Australia and India. I will refer to these cables as ‘submarine cables’.
Part I of this series set the scene, detailing the threat environment in which submarine cables and their infrastructure operate.
Part II (this piece) gets into the nitty gritty of Australian and Indian regulatory frameworks attaching to these cables and their infrastructure.
Please note that this is by no means a comprehensive analysis, especially because I lack a specialisation in telecommunications law. Oh, and this ain’t legal advice.
Caveats aside, let’s get cracking.
Regulatory Frameworks
International Law
Australia and India’s regulatory frameworks for the protection of submarine cables and their infrastructure are based on international law, namely four treaties: Convention for the Protection of Submarine Telegraph Cables (‘1884 Convention’); Convention on the High Seas (‘Geneva Convention’); Convention on the Continental Shelf; and United Nations Convention on the Law of the Sea (‘UNCLOS’).
Before we get into the provisions of these treaties that pertain to submarine cables, let’s use Figure 1 to understand the limits of the maritime zones that these provisions deal with, particularly the: territorial sea (as defined by UNCLOS pt II s 2); exclusive economic zone (UNCLOS art 57); and continental shelf (UNCLOS art 76).
The treaties provide that all states can lay submarine cables on the seabed in international waters, including in their exclusive economic zones and beyond their continental shelf, but must ‘have due regard’ to existing cables, in particular, ‘possibilities of repairing [them]’: Geneva Convention arts 2(3), 26; UNCLOS arts 58(1), 79(5), 87(1)(c), 112.
International law also allows states to lay submarine cables on their continental shelf but bars them from impeding the laying or maintenance of submarine cables thereon, though that prohibition is subject to their right to ‘take reasonable measures’ to explore their continental shelf or exploit their natural resources: UNCLOS arts 79(1)-(2); Convention on the Continental Shelf art 4.
The treaties include provisions for the establishment by states of regulatory regimes for the landing of submarine cables on their territory. The 1884 Convention art III mandates the establishment of safety regimes. UNCLOS states the right of contracting states to regulate: innocent passage through their territorial waters with respect to the protection of submarine cables (article 21(c)); and (in the case of coastal states) the installation and operation of submarine cables entering their territory or territorial waters (article 79(4)).
Finally, the treaties require contracting states to make the damaging of a submarine cable a punishable offence and prosecute conduct which damages a cable as such, unless the conduct was done by sailors to save their lives or their ship as a last resort: 1884 Convention arts II, IX, XII; Geneva Convention art 27; UNCLOS art 113.
Having provided the lay of the land in terms of international law, let’s hone in on Australia and India’s national laws.
Starting with Australia’s framework.
Australia
Australia’s domestic regulatory regime has two components: the Submarine Communications Cables and Pipelines Protection Act 1963 (Cth) (‘1963 Act’), and the Telecommunications Act 1997 (Cth) (‘Telecommunications Act’).
The 1963 Act applies only to (part of) submarine cables: beneath international waters or in Australia’s exclusive economic zone; and that are not regulated by schedule 3A to the Telecommunications Act: 1963 Act s 5. The 1963 Act criminalises conduct which causes an Australian- or Australian Territory-registered ship to break or damage a submarine cable: section 7. It makes the owner of a submarine cable liable for the cost of repairing any break or injury to that cable during the course of laying or repairing that cable: section 8.
The Telecommunications Act sch 3A cls 1–2, on the other hand, covers the installation and protection of submarine cables that lie beneath Australian waters and connect to places in Australia. I will refer to the Telecommunications Act sch 3A as ‘Schedule 3A’.
As some further context, here are some definitions.
The Telecommunications Act s 7 defines a ‘line’ to include a cable ‘used, or for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy’. This definition would thus include a submarine cable.
Telecommunications Act s 30 defines a ‘line link’ (see Figure 2).
Therefore, a submarine cable would qualify as a line link.
Schedule 3A cl 2 defines a ‘submarine cable’ as either a ‘domestic submarine cable’ or an ‘international submarine cable’ (see Figures 3–4). Though both categories are described by the provision as being situated in Australian waters and ’connected to a place in Australia’, the differentiator is mainly in terms of whether they were laid to connect one place in Australia with another place in Australia (domestic submarine cables) or with a place outside Australia (international submarine cables).
Having set the scene, let’s get into the specifics of Schedule 3A which was introduced in 2005 and amended in 2014.
Part 2 of Schedule 3A creates a regime under which the Australian Communications and Media Authority (‘the ACMA’) — Australia’s communications and media services regulator — can declare ‘protection zones’ around (proposed) submarine cables of ‘national significance’ in Australian waters. There are two protection zones off the east coast of Australia at Sydney and one off the west coast at Perth. Most submarine cables landing in Australia do so within these protection zones.
The ACMA can prohibit activities listed by clause 10 of Schedule 3A in these zones. These activities include:
- the use of ‘trawl gear that is designed to work on or near the seabed’ (cl 10(4)(a)(i));
- the use of ‘a fishing line that is designed to catch fish at or near the seabed (cl 10(4)(a)(iii));
- ‘lowering, raising or suspending an anchor from a ship’ (cl 10(4)(d)); and
- ‘any activity that involves a serious risk that an object will connect with the seabed, if a connection between the object and a submarine cable would be capable of damaging the cable’ (cl 10(4)(g)).
The ACMA can restrict activities listed by clause 11. These activities include:
- the use of a net which is above the seabed at all times (cl 11(3)(a)(i));
- ‘fishing using a line’ (cl 11(3)(c));
- ’installing, maintaining or removing an electricity cable’ (cl 11(3)(d)); and
- ‘any activity that involves a risk that an object will connect with the seabed, if a connection between the object and a submarine cable would be capable of damaging the cable’ (cl 11(3)(g)).
Schedule 3A pt 2 div 4 criminalises conduct which damages submarine cables as well as conduct in protection zones which constitutes prohibited (see clause 10) or restricted activities (see clause 11). Schedule 3A cls 40(d), 41(d) create exceptions to these offences for work done to maintain or repair submarine cables by telecommunications companies that are licensed by the ACMA under the Telecommunications Act s 56 (‘Australian carriers’) — or agents of the Australian carriers — and that own or operate those cables. Schedule 3A cls 40(e), 41(e) do the same regarding work to install submarine cables, which is done by Australian carriers or their agents if they hold a protection zone installation permit granted by the ACMA.
Speaking of installation, part 3 of Schedule 3A creates the regulatory regime for the installation of submarine cables in Australian waters.
Per clause 51, Australian carriers need to apply to the ACMA for a protection zone installation permit, that is, permission to install cables in a protection zone or international submarine cables that are located in a protection zone but are not in coastal waters of an Australian State or the Northern Territory.
Before the ACMA makes a decision on an application from a carrier, it must consult the Secretary of the Commonwealth Attorney-General’s Department (‘AGD Secretary’), that of the Commonwealth Department of Home Affairs (‘Home Affairs Secretary’) and ‘any other persons the ACMA considers relevant’: clause 55A(1). If the Home Affairs Secretary provides a written direction to the ACMA not to grant permission because doing otherwise would be ‘prejudicial to security’, the agency must comply with that direction: clauses 57A(1)-(2)). Every permit is subject to conditions specified in clause 58A.
Schedule 3A pt 3 div 3 regulates the granting of ‘non-protection zone installation permits’ for the installation of cables outside protection zones and outside coastal waters of an Australian State or the Northern Territory. The ACMA has consultation obligations under clause 70(1) similar to thus under clause 55A(1). Clause 71 defines matters for the ACMA to consider when granting or refusing to grant permission, including the ‘objective of facilitating the supply of efficient, modern and cost‑effective carriage services to the public’, a submission made by the AGD Secretary or the Home Affairs Secretary, and ‘any relevant technical and economic aspects of the installation’. Clauses 72A(1)-(2) echo clauses 57A(1)-(2). Each permit is subject to conditions specified in clause 73A.
Schedule 3A pt 3 div 4 imposes additional obligations on Australian carriers in relation to their installation of submarine cables, including those to: take reasonable steps to minimise detriment, inconvenience and damage (clause 78); comply with ‘good engineering practice’ and industry standards (clauses 80–1); and ensure that the installation of the cables complies with Australia’s international treaty obligations (clause 82).
Schedule 3A cls 84, 84A criminalise the installation of international and domestic submarine cables without a permit from the ACMA.
Besides, note that an Australian carrier, which operates a submarine cable and/or infrastructure like a cable landing station (where the cable lands and is connected to a domestic telecommunications network; here’s a technical definition), operates a ‘facility’ under the Telecommunications Act and thus faces additional obligations under the Telecommunications Act pt 14 (also known as the ‘Telecommunications Sector Security Reforms’ and which commenced in 2018).
A submarine cable would qualify as a ‘facility’ under Telecommunications Act s 7 because it is ‘part of the infrastructure of a telecommunications network’ or a line (see Telecommunications Act s 7) which is ‘used… in… a telecommunications network’. Similarly, a cable landing station, or at least equipment within it, would qualify as a ‘facility’ because of the first limb of the definition of a facility.
Some of the key obligations of such Australian carriers under Telecommunications Act pt 14 include:
- doing their ‘best’ to prevent the facilities being abused to commit offences under Australian law (section 313(1));
- doing their ‘best’ to protect the facilities from unauthorised interference or access to ensure the confidentiality of communications carried on them, as well as the availability and integrity of the facilities (section 313(1A));
- ‘maintain[ing] competent supervision of, and effective control over’ the facilities (section 313(1B));
- notifying the Commonwealth of any change to a telecommunications system or service which ‘is likely to have a material adverse effect on the capacity of the [Australian] carrier to comply with’ section 313(1A) (sections 314A(1), (3));
- complying with directions from the Commonwealth Minister for Home Affairs to not, or cease to, use or supply telecommunications services in order to preserve national security (sections 315A(1), (5));
- complying with directions from the Commonwealth Minister for Home Affairs to do or refrain from doing a specified act or thing in order to preserve national security (sections 315B(1)-(2), (12)); and
- complying with a requirement to provide information which has been requested by the Home Affairs Secretary (sections 315C(1)-(3)).
It goes without saying that the above regulatory framework is of the utmost importance to Australia’s national security, given the nature of submarine cables and their supporting infrastructure like cable landing stations as critical infrastructure. In the Explanatory Memorandum for the Telecommunications Legislation Amendment (Submarine Cable Protection) Bill 2013 (Cth), the Commonwealth Parliament went as far as stating:
Submarine cables are an important component of Australia‘s national infrastructure. They carry the bulk of Australia‘s international voice and data traffic, and provide a vital link between Australia and other countries. As an island nation, the Australian economy is especially dependent on submarine cables.
Apart from the ACMA’s acting as a regulator of the installation and protection of submarine cables, Australia’s civilian maritime security framework is run by Maritime Border Command (‘MBC’). MBC is an interagency task force within Australian Border Force (‘ABF’). It is led by a Rear Admiral from the Royal Australian Navy who is a sworn ABF officer, which enables MBC to draw on assets from both the ABF and Australian Defence Force.
Under the Guide to Australian Maritime Security Arrangements, MBC coordinates Australia’s response to civil maritime security threats and incidents affecting maritime infrastructure, which extends to the protection of submarine cables within Australia’s maritime domain. MBC would be the Australian counterpart to India’s Multi-Agency Maritime Security Group (more on that in the next section).
Speaking of India, let’s talk about its regulatory framework.
India
Like Australia, there are multiple pieces of legislation that make up India’s regulatory framework for submarine cables and their infrastructure.
The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976 (India) s 6(7) bars the Indian government from ‘[impeding] the laying or maintenance of submarine cables… on the continental shelf by foreign States’ subject to India’s ‘full and exclusive sovereign rights in respect of its continental shelf’ (section 6(2)) and the Indian government providing consent ‘for the delineation of the course for the laying of such cables’. Section 7(8) applies section 6(7) in relation to the seabed of India’s exclusive economic zone. This harks back to UNCLOS arts 58(1), 79(1)-(2) and the Convention on the Continental Shelf art 4 (see the opening section on international law).
Next, we have the International Telecommunication Access to Essential Facilities at Cable Landing Stations Regulations 2007 (India) (‘2007 Regulations’). This regulatory instrument governs access by telecommunications companies (‘Indian carriers’) — as authorised by licences from the Indian government under the Indian Telegraph Act 1885 (India) s 4 or the Indian Wireless Telegraphy Act 1933 (India) s 5 — to submarine cables connected to places in India at ‘cable landing station[s]’ (2007 Regulations regs 2(f), 3(a)).
A cable landing station is defined by the 2007 Regulations reg 2(f) (see Figure 5):
Note that a ‘backhaul circuit’ is what connects the cable landing station ‘to the infrastructure or equipment of the eligible Indian [carrier]’: 2007 Regulations reg 2(e).
The establishment of cable landing stations is regulated primarily by the Indian Department of Telecommunications, which sits within the Indian Ministry of Communications. This is because the Department of Telecommunications issues the necessary ‘Cable Station Landing License’. Note, though, that concurrence of the National Coastal Zone Management Authority and the Indian Ministry of Environment and Forests is required for the establishment of the cable landing station as well. This is in contrast with the regime for the installation of submarine cables in protection zones in Australian waters, given that Schedule 3A cl 63 exempts Australian carriers, with permits, from the law of an Australian State or Territory law on, for instance, environmental assessment, heritage protection and local government.
The Department of Telecommunications has also promulgated Guidelines and General Information for Setting up of Submarine Cable Landing Stations for International Gateways for Internet (‘Guidelines’).
Per paragraph [13] of the Guidelines, cable landing stations cannot be established ‘in security sensitive areas’ including (when the Guidelines were published) the state of Punjab, the Union Territory of Jammu and Kashmir, Eastern states of India, border areas of the state of Rajasthan, the Andaman and Nicobar Islands, as well as coastal areas of the states of Gujarat and Tamil Nadu.
Which makes sense especially because of the sheer number of drones — carrying contraband ranging from narcotics, firearms, ammunition, explosives and even counterfeit currency — sent by Pakistani elements into, or at least towards, Punjab (with the state government observing 133 drones along the border in the two years to February), Gujarat, Rajasthan and Jammu and Kashmir, in just the last few years. It thus wouldn’t be ideal if there was a cable landing station in the border or coastal areas of these states or Jammu and Kashmir. After all, if counter-drone defences aren’t robust enough, the station would be an easy target for grenades dropped from a drone which is piloted by the Pakistani military or a terrorist group operating within Pakistan — including one doing so with the support of the Pakistani state.
The nature of access to submarine cables at cable landing stations by Indian carriers is governed by the 2007 Regulations reg 3. The terms of that access, contained in a ‘Cable Landing Station-Reference Interconnect Offer’, must be submitted to the Telecom Regulatory Authority of India (‘TRAI’) for approval: 2007 Regulations regs 2(d), 3(d).
Chapter III of the 2007 Regulations covers the provisioning of ‘Co-location space’ at cable landing stations for Indian carriers that have been granted access and require the space in order to access the relevant submarine cable: 2007 Regulations regs 15, 22.
Indian carriers to whom space is allocated can install ‘Co-location Equipment’ there: 2007 Regulations reg 19. The installation and maintenance of this equipment are regulated by Part V of the Schedule to the 2007 Regulations. Part V appears to give authority to the owner of the relevant cable landing station (rather than the TRAI), for instance, when it comes to determining standard operation procedures and safety protocols to be followed by the Indian carriers (2007 Regulations sch cl 1.5), conducting a final inspection and approving the installed equipment (clause 1.6), and receiving notifications of damage to the Co-location space or the ‘Co-location Facilities’ offered by the owner to the telecommunications company (clause 2.2).
‘Co-location Facilities’ are defined by the 2007 Regulations reg 2(h) as:
the facilities at a submarine cable landing station (including building space, power, environment services, security and site maintenance) which may be offered by the owner of cable landing station to the eligible Indian [carrier]… to facilitate access to the cable landing station of such owner (including installation of co-location equipment)…
As foreshadowed a few paragraphs above, India’s regulatory framework is more decentralised than Australia’s. It is spread across multiple government departments and agencies, including the Ministry of Home Affairs, Ministry of Defence, Directorate General of Shipping, Flag Officer, Offshore Defence Advisory Group, Indian Customs department, Indian National Shipowners’ Association and Port authorities.
If one seeks permission to repair a submarine cable lying in India’s territorial sea, its exclusive economic zone and on its continental shelf, one is required to navigate an array of regulatory structures in order to obtain that permission, as per Sugadev (see Figure 6).
The aforementioned regulatory framework operates within India’s civilian maritime security framework, which is overseen by the Multi-Agency Maritime Security Group (‘MAMSG’). The MAMSG is headed by the National Maritime Security Coordinator (‘NMSC’). The MAMSG first met in June 2022 and the first and current NMSC, Vice Admiral (retired) G. Ashok Kumar, was appointed in February.
The MAMSG comprises senior officials from India’s thirteen coastal states and Union Territories, the Indian Navy, the Indian Coast Guard and several federal Indian agencies handling maritime security. It functions as a coordinator, which echoes how the Indian National Security Advisor (’NSA’), Ajit Doval, defined the NMSC as ‘the focal point for creating synergy in maritime security and fostering coordination [of the members of the MAMSG] in different areas, including operational action’. The MAMSG’s work touches on matters like submarine cables, particularly since the first meeting of the MAMSG saw discussion on ‘security of… coastal infrastructure’, which can include submarine cables running through Indian waters and the cable landing stations where they connect to Indian telecommunications networks.
The MAMSG and NMSC, or at least entities like them, were first envisioned by a Group of Ministers appointed in 2000 by the Indian Government to review India’s national security architecture and lessons from the 1999 Kargil War with Pakistan. That review recommended the establishment of ‘an apex body for the management of maritime affairs’.
The terrorist attacks against Mumbai in 2008 — in which at least 174 people were killed, including four Mumbai Police officers, two operators from the National Security Guard and two Australians — also contributed to the genesis of the MAMSG and NMSC. NSA Doval referred to these attacks during the inaugural meeting of the MAMSG. After all, the point of entry for the ten Pakistani terrorists into Mumbai from Karachi was the coastline.
Thus, part of why the Indian state established the MAMSG and appointed an NMSC was arguably to avoid a scenario where malicious actors, like terrorists, can freely roam in India’s maritime zones — especially coastal areas like in the case of the Mumbai attacks — and sabotage submarine cables and cable landing stations therein.
One of the areas of cooperation that Australia and India should especially work on.
Areas that I will explore in Part III, the final instalment of Holding the Indo-Pacific Together.
