해저케이블 부설에 대한 연안국 사전승인 관행의 국제법적 한계: 유엔해양법협약상의 적절한 고려의무를 중심으로 한 해법 모색을 중심으로

In the twenty-first century, submarine cables have become one of the most critical infrastructures enabling international communications, financial transactions, and the global exchange of information. Today, more than 95 percent of global data traffic is transmitted through submarine fiber-optic cable networks, rendering their stable operation an international public good that transcends the interests of any State and is directly linked to global prosperity. Recognizing this significance, the United Nations Convention on the Law of the Sea (UNCLOS) expressly guarantees the freedom to lay submarine cables for all States in maritime zones beyond the territorial sea, including the exclusive economic zone (EEZ), the continental shelf, and the high seas, notably through Articles 58, 79, and 87. Despite this clear legal framework, a growing number of coastal States—including China, Malaysia, India, and Poland—have adopted domestic legislative practices that effectively require prior authorization or consent for the determination of submarine cable routes. As illustrated by delays in the Singapore–Japan SJC2 cable project, such practices can significantly hinder the development of international communications networks and undermine the balance envisaged by UNCLOS between coastal State jurisdiction and the freedoms of cable-laying States. Against this backdrop, this article examines the legal nature of the freedom to lay submarine cables and the limits of coastal State authority, and seeks practical solutions for reconciling competing rights. The main findings and conclusions are as follows. First, an analysis of the text and drafting history of UNCLOS confirms that the freedom to lay submarine cables in the EEZ and on the continental shelf does not require the express consent of the coastal State. Coastal State jurisdiction is confined to “reasonable measures” aimed at specific purposes, namely the exploration and exploitation of the continental shelf and the prevention of pollution from pipelines. International law provides little basis for regulatory measures extending beyond these narrowly defined objectives. Second, the practice of certain coastal States, including China, Malaysia, India, and Poland, of exercising consent requirements under domestic law for the laying and routeing of foreign submarine cables in the EEZ and on the continental shelf gives rise to tensions with the freedom to lay submarine cables guaranteed under Article 79 of UNCLOS. Such requirements for prior approval or route consent may entail certain constraints on the manner in which the freedom to lay submarine cables is exercised. In particular, given that Article 79(3) expressly requires coastal State consent only for the delineation of the course of pipelines, while remaining silent with respect to submarine cables, the imposition of consent requirements for cable routeing raises questions as to its consistency with the text of UNCLOS. Third, in order to overcome the tension between unilateral regulation and unrestricted freedom, this study proposes a “procedural cooperation model” grounded in the doctrine of due regard, as articulated in the Chagos MPA arbitration. The core of this model is the replacement of prior-authorization regimes with procedures based on prior notification and time-bound consultation. This approach affords coastal States an opportunity to monitor activities in their maritime zones and raise legitimate concerns, while ensuring that cable-laying States can exercise their rights without undue delay. In conclusion, this article argues that submarine cables should be understood not as objects for the expansion of exclusive coastal State control, but as international infrastructure warranting collective protection. Coastal States should align their domestic legislation with international standards, while cable-laying States should institutionalize good-faith consultation practices that respect legitimate coastal interests. Only through such structured cooperation can legal uncertainty be reduced and a stable international communications order be secured.