Abstract
Maritime law enforcement regarding attacks on critical underwater infrastructure remains one of the weakest parts of the legal system governing undersea infrastructure. While the UN Convention on the Law of the Sea and the 1884 Submarine Telegraphic Cable Convention require States to criminalize and penalize willful or negligent damage to submarine cables, these agreements depend heavily on national enforcement. In international waters, enforcement becomes more complicated due to the principle of exclusive flag State jurisdiction, which limits a coastal State’s ability to enforce laws in international waters. This article proposes that the legal doctrine of constructive presence provides an international law remedy for suspicious activity involving the deliberate damage or destruction of submarine communication cables and submarine pipelines. As an exception to exclusive flag State jurisdiction, the doctrine grants a coastal State the legal authority to assert both prescriptive and enforcement criminal jurisdiction over foreign-flagged ships that deliberately damage or cut offshore submarine cables and pipelines outside of the coastal State’s sovereign waters, so long as the cable or pipeline lands within its territorial sea.
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