International Criminal Law
102
of the 1884 Convention and extended it to cover also submarine pipelines and high-
voltage power cables. Significantly, Art 113 of UNCLOS features an additional
sentence, whereby it penalises not only wilful commission and negligence, but also
‘conduct calculated or likely to result in such breaking or injury’.
51
Unlike piracy
jure gentium,
which too, is an offence committed on the high seas,
judicial jurisdiction for injuries to submarine cables underArt 8 of the 1884 Convention
and, indeed, customary law, is not universal but belongs to the Flag State, or that of
the nationality of the offender, in cases where the Flag State is unable to act.
52
The same
is true with respect to Art 113 of UNCLOS. Article 10(2) of the 1884 Convention makes
a minor departure from the rule of exclusive enforcement jurisdiction of the Flag State
on the high seas, by granting the limited right to other States parties to approach but
not board suspected vessels in order to determine their nationality.
53
Both the British
Submarine Telegraph Act 1885,
54
and the US Submarine Cable Act 1888,
55
enacted to
implement the 1884 Convention, reproduce almost verbatim the elements of the
offence, as well as its jurisdictional clause under the Convention. The light penalties
provided in the British and US statutes, which have remained the same since their
enactment, may well account for the lack of criminal prosecutions and reluctance to
engage in costly financial litigation with little benefit on the horizon.
In time of armed conflict, although it is permissible to sever the adversary’s
submarine cables,
56
it is prohibited to seize or destroy submarine cables connecting
an occupied territory with a neutral State, except in situations of absolute necessity.
57
In a case tried by a British-American Claims Arbitral Tribunal in 1923, a British
corporation claimed compensation for repairs incurred in repairing the Manila-Hong
Kong and the Manila-Cadiz submarine telegraph cables cut by the US naval
authorities during the Spanish-American War in 1898. The tribunal dismissed the
claim by stating that not only was the cutting of cables not prohibited by the rules of
international law applicable to warfare at sea, but ‘such action may be said to be
implicitly justified by that right of legitimate defence which forms the basis of the
rights of any belligerent nation’.
58
Protection and prosecution of cases involving injury to submarine cables and
pipelines is dependent on each individual State, both by application and adaptation
of domestic statutes to contemporary exigencies, as well as by international co-
operation and rigid police enforcement action. State action has unfortunately proven
51
InaSupplementaryDeclarationtothe1884Convention,signedin1886,thepartiestotheformerconstrued
the term ‘wilfully’ contained in Art 2(1) of the 1884 Convention as not imposing penal responsibility ‘to
cases of breaking or of injuries occasioned accidentally or necessarily in repairing a cable, when all
precautions have been taken to avoid such breakings or damages’. Reprinted in 1 Bevans 112.
52
MS McDougal and WT Burke,
Do'stlaringiz bilan baham: