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Legal eye: Under the sea

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The 1980s witnessed two important events in sea lore. More widely celebrated was Disney’s release of “The Little Mermaid” in 1989. Less known, but of greater geo-political significance, was the United Nations’ adoption of the Convention on the Law of the Sea in 1982.

When it comes to pipelines in the Baltic and access to Poland’s ports, we must look to the Convention. It doesn’t have any catchy songs, but it does have a history filled with enough nautical archaisms to make a salty dog’s day.

Freedom of the seas

The Nord Stream pipeline feud may leave you with the impression that anything goes in the Baltic. Well, actually, your impression is not far from the mark. Freedom of the seas was pretty much the state of the law up until mid-20th century.

While the general principle was each country for itself on the high seas, certain accepted customary rules developed over the centuries. With the rise of naval power, for example, came the “cannon-shot rule” from the 18th century. In other words, coastal countries claimed rights over that strip of the sea that was within a cannon shot to their coast.

Apparently, this was one league (about three nautical miles).

On the basis of the rule, they could regulate the passage of foreign ships through this strip of land. Since then, numerous other contentious issues have arisen, including fishing rights and the mining of minerals on the ocean floor.

The Law of the Sea

These earlier rules were based on tradition. The United Nations Convention on the Law of Sea (1982), meanwhile, attempted to create rules for contemporary issues, such as pollution, oil drilling, and (of particular importance) the laying of submarine pipelines. Both Poland and Germany have ratified this Convention.

Pipeline rules

When it comes to pipelines, the Convention primarily affirms the rights of countries to put them on the sea floor. Specifically, everyone is allowed to put pipelines on the floor of the high sea, subject to certain considerations, such as not endangering existing pipelines or cables.

In the shallower areas of continental shelves (where coastal states claim territory), other countries may also lay down pipelines. There are a few more exceptions to this rule. Most importantly, a coastal state may set conditions for the pipelines on its continental shelf, but it may not impede the placement of another’s pipeline except for concerns about pollution or obstacles to its own exploitation of the natural resources in the area.

Based on my admittedly sketchy understanding of marine geography, it appears that the Nord Stream pipeline is lying on Germany’s continental shelf, and not Poland’s. Thus, Poland cannot directly place conditions on the pipeline placement; it can only ask that Germany take into consideration its reservations. For this reason, it appears that Poland is appealing to another basic tenet of the Convention.

Neighborly passage

All coastal states, such as Poland and Germany, must allow foreign ships to pass through their territorial waters for innocent purposes, such as commercial shipping traffic. This passage, however, may be restricted to specified sea lanes.

Furthermore, coastal countries are supposed to be good neighbors. One coastal country may not exercise its rights in a manner that infringes or “unjustifiably interferes” with another country’s rights.

Poland is arguing that the Nord Stream pipeline will prevent larger ships from reaching the Świnoujście port through the current sea lanes. Unfortunately for Poland, it appears that the German authorities are taking the view that no unjustified interference has occurred because regular ships will be able to get to the port and Germany could create a new sea lane for the larger ones.

Source: Judith Gliniecki, Warsaw Business Journal, 16th May 2011

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