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Legal Protection of Submarine Cables in Latin America

Issue 45 of Submarine Telecoms Forum contains an article by Dr Andrés J Fígoli Pacheco, a Senior Legal Counsel with Telefónica International Wholesale Services (TIWS) in Montevideo, Uruguay. He has been engaged in improving the legal framework protecting submarine cables in Latin America.

Since early 2008, Telefónica International Wholesale Services (TIWS) has been engaged in a plan designed to improve the legal framework protecting submarine cables in many Latin American countries. Despite laws to dissuade this, local fishermen caused serious cable cuts in Uruguay in 2007. The high market price of the catch was so substantial that they were willing to risk damaging cables, and applicable laws were not enough to prevent this.

These cable cuts proved that national authorities needed to be informed of the importance of higher economic penalties for fishing companies. To this end, several interviews with regulatory authorities took place, especially with Navy authorities, the natural watch-keepers of the sea.

Under the advice of the International Cable Protection Committee, Telefónica has suggested to local authorities that the ideal regulation is the Australian 2005 legal framework (summarised in the Protection of Submarine Cables and Other Measures Bill 2005) which is considered the best model legislation for protecting submarine cables. The main points of this framework are establishing corridor systems between cable systems where certain fishing activities are prohibited and high penalties of up to US$300,000 and six years imprisonment.

Some of the legal changes that Telefónica is proposing do not require a draft bill, and so they focused on informing policy makers about the major risks telecommunications companies are facing and about the need to implement quick changes in administrative regulations. Some countries have also decided to adopt harsher criminal penalties for those who disrupt the telecommunication system performance, as Uruguay did with the amendment to its 1934 Criminal Code. Unfortunately, this amendment only allowed punishing willful misconducts and not negligent acts, which are the main reason for cable faults.

During 2008, several legal initiatives were presented before Latin American national governments, including requests to change the regulation to increase administrative penalties against those responsible for cable cuts, even if they act negligently and not intentionally.

Telefónica believes that high economic sanctions and civil proceedings requiring third parties to compensate for cable damage are the best dissuasive measures to avoid these incidents. Despite the fact that cable awareness has proved to be a strong dissuasive measure against risky cable-damaging activities, the best result obtained so far was by raising the authorities’ awareness of the serious damage this can cause to national economies unless immediate actions are taken.

Since 95% of international communications are conducted by submarine cables, the need to guarantee the integrity of these assets is essential to avoid interrupting/delaying Internet traffic, affecting cell phone/fixed line calls, and the international traffic of the whole continent. It is not only the carrier’s public image that is affected by these disruptions but also the end users.

Let us consider even the idea of having banking systems and hospitals restricted to manual transactions: the breakdown of emergency systems has a major impact on economies and societies. That is why these same societies must increase the awareness of governments, industries, and people regarding the importance of fibre-optic networks.

In Argentina, Chile, Brazil, Peru, and Uruguay, a strong collaborative approach is continuing, which emphasises the idea that protecting cables is not only a national issue but also an international commitment. Unfortunately, some of these countries have not even ratified the United Nations Law of the Sea Convention, which specifically requires ratifying countries to enact regulations to protect cables. In addition, the Asia-Pacific Economic Cooperation Working Group for protecting Critical Infrastructure is helping governments get involved in this matter.

Telefónica’s broad legal database on these issues with other countries’ legislations meant that these issues were open to them, allowing them to share the best legal practices of other countries. For example, the obligatory implementation for the Uruguayan fishing fleet of the Vessel Monitoring System (VMS), an electronic transmitter controlled via satellite by the Navy, proved to be a good instrument for controlling their activities whenever the law enforcement controller detects by the position and speed that something prohibited is going on at sea.

This useful tool helps to detect the position of any vessel in the area when a cable fault occurs and every seaman knows the area is under surveillance. There is no point in denying it if your ship is above the cable when it breaks. What is more, the Automatic Identification System (AIS), a transponder fitted to the vessel which is connected to the ship’s GPS, transmitting over VHF, is a very helpful tool for protecting cables and providing legal evidence, and not just for avoiding collisions. Of course, it would have been better if this tool had not only been limited to ships of more than 300 tons under the International Maritime Organisation Regulations.

Sharing the seabed in harmony is something not easy to achieve but it is not an impossible task. Government representatives are realising that this is something that should be accomplished with new approaches and regulations for all ships. Otherwise, new problems to economies and societies must surely arise, as submarine cables represent today’s highways for the Information Society. Up until the present, the strong collaborative approach between TIWS and local authorities is contributing to achieve this goal of minimising the risk of cable fault incidents.

* Dr Andrés J Fígoli Pacheco has been working as a Senior Legal Counsel with Telefónica International Wholesale Services (TIWS) in Montevideo, Uruguay, since early 2002. He is responsible for TIWS regulatory issues relating to submarine cable systems and telecommunications services, and he also works in privacy and commercial issues relating contract negotiations. On a more academic basis, he is a lecturer for cable submarines in many organisations and is currently a Commercial Law Assistant Professor at Law School, Universidad de la República. The article appears by kind permission of the author and original publication.

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