CBC news reported this morning that an application for judicial review has been filed in the Federal Court in Halifax, and the application has some interesting TCL aspects. The application was filed by Tele Greenland, Greenland's largest telecommunications company, which says it has had to repair breaks in its undersea cables that connect Greenland to Newfoundland (and ultimately Canada). It earlier asked Canada's Department of Fisheries & Oceans (DFO) for information about the breaks, which took place "off the coast of Newfoundland", and which according to the company arose from contact with "fishing gear." DFO responded with some documents, but the longitude and latitude of the breaks and information about vessel monitoring in the area was redacted.
Tele Greenland is alleging (the application can be viewed on the CBC link above) that DFO has breached the Access to Information Act under which the request was made. DFO apparently feels that providing the information would breach the Act. No defence has yet been filed.
Why is this of interest to readers of this blog? Well, any writing about the suppression conventions upon which TCL is based often begins with the assertion that inter-state cooperation criminal matters is actually not new or modern, and one of the touchstones underpinning that statement is the 1884 Convention for the Protection of Submarine Telegraph Cables. Under this treaty, to which Canada is a party, states agree to criminalize the breaking of "submarine cables," "whether wilfully or by culpable negligence." They also agree to enforce this law and to cooperate with the other treaty partner states in certain respects regarding prosecutions.
The Convention is supplemented by certain provisions of the UN Convention on the Law of the Sea (UNCLOS), and it is administered by the International Cable Protection Committee (I am not making this up; the Committee's website is here). Any mild humour on my part is counterbalanced by the fact that these cables are what keeps the internet running, and therefore this is a major piece of legal infrastructure. Here is a paper that lays out the details.
This legal regime is designed to balance the protection of cables with the needs of the fishery. The party states are obligated to exercise criminal jurisdiction over the breaking of cables by anyone within their territorial waters; or where the break happens in their EEZs or on the high seas, over any vessel with the state's flag or where the state's nationals are responsible. While I have not researched it in any detail, I suspect this regime constitutes customary international law obligations.
So what about this case? On an international law level, Tele Greenland has no standing to assert any rights under either of the treaties, so this particular application does not invoke Canada's international law obligations. If the government of Greenland itself asks for information, however, that will be a different matter because Canada is obliged to provide exactly this kind of assistance. Moreover, the failure to provide Tele Greenland with the information it has requested does make one wonder whether there has been an investigation into these breaks and a determination of whether they fall under Canada's criminal jurisdiction. Or any prosecutions. Or, perhaps, a failure to do either, which would breach the treaty.
That said, Canada tends to be a good international legal citizen and deliberate flouting of these laws seems unlikely. The upshot of the whole thing is that, whether or not the treaty is in play here, TCL enthusiasts the world over will be positively gleeful to even have such a matter arise. I will attempt to track this case and any TCL developments. Watch this space.