When not in wartime, what measures can a government take against other country’s vessels in international waters? What if the vessel interferes with undersea internet cables, resulting in intercepted or interfered communications?
These are questions that are raised by the conduct of Russian intelligence vessels, such as Yantar.
Although Yantar is categorized by Russia as an “oceanographic research vessel,” most other nations consider it to be a spy or surveillance ship as it is equipped specifically for intelligence missions, with equipment such as small, deployable, deep-sea submarines. The ship allegedly conducts espionage-related missions, such as placing listening devices on undersea cables, including cables so deep underwater that they were thought to be safe from interference. Over the past few years, Russian surveillance ships have been seen operating near undersea internet cables a number of times. Some U.S. Department of Defense officials worry that due to the type of monitoring equipment Yantar is equipped with, the vessel may be searching for areas where the cables run so deep that in the event the line was severed, it would be difficult to find the damaged area and to repair it.
Surprisingly, nearly all of our online communications today are carried by 380 undersea internet cables. Operations of Russian intelligence ships in the vicinity of these cables raise many concerns about Russian interception of international communications or intentional damage of the internet cables.
If it was discovered that Yantar or another surveillance vessel was tampering with undersea internet cables, it would be difficult to determine how the United States may legally intervene. As stated above, tampering with internet cables could have drastic consequences, including interruption of worldwide communications. However, if force was deemed to be necessary to prevent interruption, the permissible measures may be limited. The United Nations Charter generally prohibits the use of force against other nations, aside from some exceptions, such as self-defense. The issue, however, is that the Charter does not clearly define the types of threat that warrant the use of force as a measure of self-defense. For example, some states, such as the United States, recognize the right to anticipatory self-defense. Additionally, self-defense is commonly expected to be used only in the event that the force used is in proportion to the initial force, the initial force would be deadly, and the minimum amount of force necessary to defend oneself is used. It is unlikely that a vessel could claim self-defense or anticipatory self-defense to use force in order to protect another vessel from tampering with internet cables. Although the result could be drastic, it is unclear how a country could intervene while claiming self-defense without escalating the conflict.
Additionally, the law of the sea, governed by the United Nations Convention on the Law of the Sea (UNCLOS III), offers many protections for ships on the high seas — waters that are not controlled by a coastal nation. Although the United States did not agree to UNCLOS III, the United States still recognizes the regulations it sets forth as international custom for measures taken while at sea. These regulations and protections also make it difficult for the United States to intervene with a vessel tampering with internet cables that are outside of the territorial seas of the nation.
As for what specific overt measures the United States could take against Russia or any other nation discovered to be tampering with internet cables, the answer is rather unclear. However, gray zone tactics are used by military forces in a manner which is beyond the accepted standard military customs of peacetime, but also not quite in a manner that escalates tensions to war. An example of such tactics is Russia’s practice of buzzing, or flying very close to, United States warships with their own military planes. While this is not a military practice customary of peacetime, the Russians claimed their right to fly uninhibited in international airspace. Although these actions may escalate tensions between the two countries, the action is not clearly illegal, and it is very unlikely that the act of buzzing warships alone would escalate tensions to a point of war.
It is unclear how the United States may intervene in the event that a country’s vessel caused significant, intentional damage to an undersea internet cable. Despite the ambiguity of international law leading to room for gray zone tactics, they can be problematic because nations struggle with determining how to respond to them, and they do raise tensions between nations. Therefore, while it may be a legal action, a gray zone tactic may not be the best solution either. It is difficult to determine how a military force can intervene with a foreign force’s activities without a serious deterioration in international relations. If internet cables were severely damaged, however, perhaps some sort of non-combative gray zone intervention may be warranted.
Author Biography: Vivian M. Overbeck is a moderator for the International Law and Policy Brief and a J.D. candidate at The George Washington University Law School. She received a B.A. in History (December 2019) and a B.A. in Economics (May 2020) from Northern Illinois University. Overbeck competed in cross country and track for Northern Illinois University and completed her eligibility in outdoor track during her 1L year at GW. Her primary interests are operational law, maritime law, and military justice.