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TRANSBOUNDARY TRANSIT PIPELINES: REFLECTIONS ON THE BALANCING OF RIGHTS AND INTERESTS IN LIGHT OF THE NORD STREAM PROJECT

Published online by Cambridge University Press:  05 September 2014

David Langlet*
Affiliation:
Associate Professor at the Faculty of Law, Stockholm University (on leave), Research Fellow at the Faculty of Law, University of Oxford, david.langlet@juridicum.su.se.

Abstract

The Nord Stream project, which comprises two natural gas pipelines in the Baltic Sea, eminently illustrates several of the ambiguities that pertain to the ability of coastal States to regulate the laying and operation of transit pipelines in their exclusive economic zone and, conversely, the extent of the right of other States to carry out such activities. A highly significant issue is how seabed surveys undertaken in preparation for the laying of pipelines should be characterized, and thus regulated, under the United Nations Convention on the Law of the Sea. What is to be considered a ‘reasonable measure’ by a coastal State is another crucial issue which, together with the extent of the requirement for consent by the coastal State for any specific pipeline route, are decisive for defining the balance between potentially competing interests relating to submarine transit pipelines.

Type
Shorter Articles and Notes
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 eg Norpipe and Europipe I, which both transport gas from the Norwegian CS to Germany.

2 eg the Turkey–Greece gas pipeline and the Trans-Mediterranean Pipeline, the latter of which—in its submarine part—connects Tunisia to Sicily and then to mainland Italy.

3 CCS denotes a set of techniques and methods that allows CO2 generated by combustion to be sequestered and thus prevented from reaching the atmosphere. See generally Metz, B and others (eds), IPCC Special Report on Carbon Dioxide Capture and Storage, prepared by Working Group III of the Intergovernmental Panel on Climate Change (CUP 2005)Google Scholar.

4 On pipelines for transport of carbon dioxide see ibid 29–31. Such a development would entail a need to employ industrial sized transport networks for pressurized carbon dioxide, often in a transboundary setting.

ibid

5 On the technical aspects see generally Miesner, TO and Leffler, WL, Oil & Gas Pipelines in Nontechnical Language (PennWell Books 2006)Google Scholar. The political dimensions will be briefly addressed below.

6 See eg Roggenkamp, MM, ‘Petroleum Pipelines in the North Sea: Questions of Jurisdiction and Practical Status’ (1998) 16 JERL 92Google Scholar, 95.

8 Crowley, J, ‘International and Coastal State Control over the Laying of Submarine Pipelines on the Continental Shelf – The Ekofisk-Emden Gas Pipeline’ (1987) 56 NordJIntlL 39Google Scholar, 40. A similar conclusion is drawn in Roggenkamp (n 6) 106.

n 6

9 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397 (UNCLOS).

10 Regarding the different points of criticism directed towards the project see Langlet, D, ‘Nord Stream, the Environment and the Law: Disentangling a Multijurisdictional Energy Project’ (2014) 59 ScandStudL 80Google Scholar.

11 See Koivurova, T and Pölönen, I, ‘Transboundary Environmental Impact Assessment in the Case of the Baltic Sea Gas Pipeline’ (2010) 25 IJMCL 151–81Google Scholar. See also Wolf, S, Unterseeische Rohrleitungen und Meeresumweltschutz: Eine völkerrechtliche Untersuchung am Beispiel der Ostsee (Springer 2011) 323ffGoogle Scholar.

12 Such pipelines are generally exempted from the limitations of the coastal State's jurisdiction that are discussed in this article by UNCLOS (n 9) art 79(4), which holds that ‘[n]othing in this Part affects the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction’. Although the coastal State does not have jurisdiction over those parts of the pipeline that are outside its territory it nonetheless enjoys considerable influence on pipelines that enter its territory or territorial sea since the design and technical details are the same for the whole pipeline. Lagoni, R, ‘Cable and Pipeline Surveys at Sea’ in Hestermeyer, HP et al. (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum, vol 1 (Brill 2012) 933Google Scholar, 949.

n 9

13 The gas travels the full distance thanks to pressures of up to 220 bar generated by a land-based compressor station in Portovaya, Russia. General Background Paper on Nord Stream (5 November 2012) 5 <https://www.nord-stream.com/press-info/library/>.

15 Barcelona Traction, Light & Power Co Ltd (Belg v Spain), Second Phase, ICJ Reports (1970) 3.

16 Roggenkamp (n 6) 98. The Finnish Government's decision regarding the laying of the pipeline in the Finnish EEZ explicitly refers to Switzerland as the applicant's domicile and notes that the country is party to UNCLOS. Consent to Exploit Finland's Exclusive Economic Zone (5 November 2009) 678/601/2009 (unofficial translation provided by the Ministry of Employment and the Economy) 22 <http://www.envir.ee/orb.aw/class=file/action=preview/id=1105159/Soome_val_luba_NS.pdf>.

n 6

17 For a definition of diplomatic protection see ILC's: Articles on Diplomatic Protection, annexed to GA Res 62/67 6 December 2007, art 1.

18 See on this matter Crawford, J, Brownlie's Principles of Public International Law (8th edn, OUP 2012) 527CrossRefGoogle Scholar.

19 UNCLOS (n 9) art 311. Convention on the Continental Shelf (adopted 29 April 1958, entered into force 10 June 1964) 499 UNTS 311.

n 9

20 Decision No 1364/2006/EC laying down guidelines for trans-European energy networks and repealing Decision 96/391/EC and Decision No 1229/2003/EC, OJ 2006 L 262/1, art 8. A main priority for the EU with respect to trans-European gas networks is to develop natural gas networks in order to meet the EU's natural gas consumption needs and to control its natural gas supply systems. Ibid art 4(3).

Ibid

21 See eg B Solum Whist, Nord Stream: Not Just a Pipeline (FNI Report 15/2008, 2008) ch 4.

22 See instead Götz, R, ‘The Nord Stream Pipeline: The Energy Policy Background’ (2009) 52 GYIL 233Google Scholar; Vinogradov, S, ‘Challenges of Nord Stream: Streamlining International Legal Frameworks and Regimes for Submarine Pipelines’ (2009) 52 GYIL 241Google Scholar; and Solum Whist (n 21).

n 21

23 See eg Russia Shuts off Gas to Ukraine, BBC NEWS (1 January 2009) <http://news.bbc.co.uk/2/hi/europe/7806870.stm>.

24 General Background Paper on Nord Stream (November 2013) 4 <https://www.nord-stream.com/press-info/library/?pk=10>.

25 Nord Stream Extension Project Information Document (PID), March 2013, Document No N-GE-PER-REP-000-PID00000-A, 15.

26 Götz (n 22) 238. The EU Commission has also referred to the desirability of diversification of energy supply routes. EU Commission, Green paper: ‘A European Strategy for Sustainable, Competitive and Secure Energy’ (8 March 2006), COM(2006) 105 final, 18.

n 22

27 Solum Whist (n 21) 18ff; Wolf (n 11) 55ff. The then Polish defence minister Sikorski even held in 2006 that the project echoed the 1939 Molotov–Ribbentrop Pact. Nord Stream ‘a Waste of Money’, says Poland, Euractiv (11 January 2010, updated 31 August 2011) <http://www.euractiv.com/energy/nord-stream-waste-money-poland/article-188727>.

n 21
n 11

28 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 26.

29 Redgwell, C, ‘Contractual and Treaty Arrangements Supporting Large European Transboundary Pipeline Projects: Can Adequate Human Rights and Environmental Protection Be Secured?’ in Roggenkamp, MM et al. (eds), Energy Networks and the Law: Innovative Solutions in Changing Markets (OUP 2012) 111Google Scholar. This may be compared to oil and gas pipelines in the North Sea, which are mostly subject to bilateral treaties between ‘sending’ and ‘receiving’ States. Roggenkamp (n 6) 100. See, as an example, the 1973 Agreement Relating to the Transmission of Petroleum by Pipeline from the Ekofisk Field and Neighbouring Areas to the United Kingdom (1973 Ekofisk Treaty).

n 6

30 On the application of general principles of jurisdiction to submarine pipelines, see Roggenkamp (n 6) 96ff.

n 6

31 UNCLOS (n 9) art 87(1).

n 9

32 ibid art 112.

ibid

33 ibid art 87(1). Even pipelines that are laid on the bed of the high seas beyond the CS are subject to one provision of Part VI, namely the requirement of art 79(5) to have due regard to cables or pipelines already in position.

ibid

34 ibid arts 113–14.

ibid

35 ibid art 115.

ibid

36 ibid art 58(2).

ibid

37 Where geography allows the coastal State may claim a territorial sea that stretches 12 nm from the baseline. Here the coastal State in most respects exercises sovereignty in a way similar to what applies on its land territory. ibid arts 2–3.

ibid

38 ibid art 57. For a definition of ‘baseline’ see ibid, arts 5 and 7.

ibid
ibid

39 ibid art 56(1)(a).

ibid

40 ibid art 56(1)(b).

ibid

41 Lagoni, R, ‘Pipelines’ in Wolfrum, R (ed), Max Planck Encyclopedia of Public International Law (e-resource, OUP 2008, updated April 2011)Google Scholar para 10; Wolf (n 11) 191.

n 11

42 The freedom pertains to States, not individuals. But in practice the activities covered by the freedom of the high seas are overwhelmingly exercised by private parties. Wiese, W, Grenzüberschreitende Landrohrleitungen und Seeverlegte Rohrleitungen im Völkerrecht (1997) 210Google Scholar.

43 UNCLOS (n 9) art 58(1).

n 9

44 There are two types of baselines, normal and straight, which are defined in ibid, arts 5 and 7, respectively.

ibid

45 In legal terms the CS of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. ibid art 76 (1). The CS may extend even further under certain conditions which, however, are beyond the preview of this analysis.

ibid

46 ibid art 77(3). In the words of the ICJ the CS is an ‘inherent right’. North Sea Continental Shelf Cases (FRG/Den; FRG/Neth), ICJ Reports (1969) 3, para 19.

ibid

47 As the ICJ has succinctly noted: ‘Although there can be a continental shelf where there is no exclusive economic zone, there cannot be an exclusive economic zone without a corresponding continental shelf.’ Continental Shelf (Libya/Malta), ICJ Reports (1985) 13, para 34.

48 UNCLOS (n 9) art 78.

n 9

49 ibid art 79(2).

ibid

50 Nelson, LDM, ‘Submarine Cables and Pipelines’ in Dupuy, RJ and Vignes, D (eds), A Handbook on the New Law of the Sea, vol 2 (Springer 1991) 977Google Scholar, 984.

51 The main arguments are accounted for in Kwiatkowska, B, The 200-Mile Exclusive Economic Zone in the New Law of the Sea (Martinus Nijhoff 1989) 6ffGoogle Scholar.

52 Attard, DJ, Exclusive Economic Zone in International Law (OUP 1987) 138Google Scholar; Orrego Vicuña, F, The Exclusive Economic Zone: Regime and Legal Nature under International Law (CUP 1989) 68Google Scholar.

53 Attard (n 52) 139; Orrego Vicuña (n 52) 70 with further references.

n 52
n 52

54 The ICJ concluded already before the entry into force of UNCLOS that ‘even though the present case relates only to the delimitation of the continental shelf and not to that of the exclusive economic zone, the principles and rules underlying the latter concept cannot be left out of consideration. As the 1982 Convention demonstrates, the two institutions – continental shelf and exclusive economic zone – are linked together in modern law’. Continental Shelf (Libya/Malta), ICJ Reports (1985) 13, para 33.

55 Wolf (n 11) 84.

n 11

56 Miesner and Leffler (n 5) 136.

n 5

57 Wiese (n 42) 198; Wolf (n 11) 85 and 104.

n 42
n 11

58 Lagoni (n 12) 933.

n 12

59 Vinogradov (n 22) 261.

n 22

60 Cabinet meeting decides to deny Nord Stream AG's request to conduct marine investigations in Estonia's exclusive economic zone, Government Communication Unit (6 December 2012) <http://valitsus.ee/et/uudised/pressiteated/majandus-ja-kommunikatsiooniministeerium/73717>.

61 Except for the technical necessity of surveying the seabed in order to optimise the construction of the pipeline it is also hard to see how a coastal State could dispense with its obligation to protect the marine environment without the knowledge generated by a seabed survey. This obligation is further discussed below.

62 UNCLOS (n 9) art 238.

n 9

63 ibid art 246(2).

ibid

64 ibid art 246(3).

ibid

65 Soons, AHA, ‘The Legal Regime of Marine Scientific Research: Current Issues’ in Nordquist, MH et al. (eds), Law, Science & Ocean Management (Brill 2007) 139CrossRefGoogle Scholar, 151.

66 Jacobsson, M, ‘The Sea, Science and the Human Dimension’ in Vidas, D and Schei, PJ (eds), The World Ocean in Globalisation (Brill 2011) 53CrossRefGoogle Scholar, 59.

67 Lagoni (n 12) 936.

n 12

68 Nordquist, MH, Rosenne, S and Yankov, A (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, vol IV (Martinus Nijhoff Publishers 1990)Google Scholar, Commentary to article 238, 440ff.

69 ibid and Soons (n 65) 124.

ibid
n 65

70 UNCLOS (n 9) art 246(3). Italics added here.

n 9

71 Lagoni (n 12) 935ff.

n 12

72 This balance is evident eg in UNCLOS (n 9) arts 56(2), 58(3), 59, 78(2), 79(2) and 300.

n 9

73 For, as Vinogradov notes, without surveys ‘the freedom to lay submarine pipelines cannot be realised in principle’. Vinogradov (n 22) 284. Wiese similarly finds that ‘Der Kustenstaat kann für die Verlegung einer Rorleitung erforderligen Undersuchungen grundsätzlich nicht verhindern, da dadurch die Verlegung selbst entgegen Art 79 Abs. 1 SRÜ ausgeschlossen werden würde.’ [‘The coastal State cannot in principle prevent surveys necessary for the laying of a pipeline since that would preclude the laying itself contrary to UNCLOS art 79(1).’] Wiese (n 42) 261.

n 22
n 42

74 Dörr, O and Schmalenbach, K, ‘Article 31. General Rule of Interpretation’ in Dörr, O and Schmalenbach, K (eds), Vienna Convention on the Law of Treaties: A Commentary (Springer 2012) 521CrossRefGoogle Scholar, 539–40.

75 Lagoni (n 12) 936ff.

n 12

76 ibid 938–9.

ibid

77 Wolf (n 11) 86.

n 11

78 Vinogradov (n 22) 284.

n 22

79 UNCLOS (n 9) art 79(2).

n 9

80 ibid art 79(3).

ibid

81 Churchill, RR and Lowe, AV, The Law of the Sea (MUP 1999) 174Google Scholar; Kwiatkowska (n 51) 218.

n 51

82 Churchill and Lowe cite Cape Verde and São Tomé e Príncipe. Churchill and Lowe (n 81) 174. A pertinent example, not mentioned by Churchill and Lowe, is the Swedish Continental Shelf Act (1966: 314), which in section 15(a) stipulates that the laying of both submarine cables and pipelines requires a permit. However, the preparatory works to section 15(a) make it clear that the issuing of permits must be compatible with UNCLOS art 79 and that this means that there can be no total rejection of an application to lay cables or pipelines. However, a permit may be denied for a particular proposed route if laying along that route would threaten any of the interests listed in UNCLOS, art 79(2). Proposition 1995/96:140 sida 176 (Government Bill 1995/96:140, 176). On the situation under German law see Wurmnest, W, ‘The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The German Perspective’ (2011) 25 Ocean Yearbook 311Google Scholar, 328.

n 81

83 ‘Denmark: Continental Shelf’ (Article 67 RSNT II) [1977], reproduced in Platzöder, R (ed), The Third United Nations Conference on the Law of the Sea: Documents, vol IV (Oceana Publications 1990) 470Google Scholar.

84 For a more thorough account of the Danish position see Crowley (n 8) 49.

n 8

85 Wiese (n 42) 214 with further references.

n 42

86 Roggenkamp (n 6) finds that ‘[b]asically, all conditions which relate to infrastructures such as the route of the pipeline, safety and the environment seem to be acceptable under international law’ 106. See also Vinogradov (n 22) 264.

n 6
n 22

87 Koivurova and Pölönen (n 11) 179.

n 11

88 UNCLOS (n 9) art 1(4).

n 9

89 Hollo, EJ, ‘The Baltic Sea and the Legal Order on Placing Energy Pipelines’ in , B, Egelund Olsen and Tegner Anker, H (eds), Festskrift til Ellen Margrethe Basse (Djøf Forlag 2008) 179Google Scholar, 190. It is, however, wholly conceivable that the importance of the pipeline to other States than the coastal State could become a factor in the weighing up of opposing interests, as foreseen most explicitly in UNCLOS, art 59, but the logic of which arguably characterizes the EEZ and CS regimes in total.

90 This phenomenon is discussed in Solum Whist (n 21) 46–9.

n 21

91 In its decision granting consent to the Nord Stream pipelines the Finnish Government finds that it is impossible (and thus not called for) to have regard to all kinds of imaginary projects which may in the distant future be executed in the Finnish EEZ. Consent to Exploit Finland's Exclusive Economic Zone (n 16) 28.

n 16

92 See eg UNCLOS (n 9) art 208 and the Convention on the Protection of the Marine Environment of the Baltic Sea Area (adopted 9 April 1992, entered into force 17 January 2000) 1507 UNTS 167.

n 9

93 Wiese refers to the ‘Ordnungsfunktion’ [function of upholding order] of the coastal State, to describe its responsibility to take measures to prevent or reduce pollution from activities under its jurisdiction. Wiese (n 42) 230.

n 42

94 Consent to Exploit Finland's Exclusive Economic Zone (n 16), and Regeringsbeslut 15, 2009-11-05 [Decision by the Government, No 15, 5 November 2009]. On the national permit procedures and the conditions stipulated therein see Langlet (n 10).

n 16
n 10

95 Wiese finds that ‘Eine Massnahme ist also “unreasonable”, wenn sie andere Meeresnutzungen ungerechtfertigt beeinträchtigt.’ [‘A measure is therefore “unreasonable” if it unjustifiedly interferes with other uses of the sea.’] Wiese (n 42) 214–15.

n 42

96 ibid 219.

ibid

97 Lagoni (n 12) 946. For a similar reasoning see Wiese (n 42) 220 and Crowley who finds that, since ‘the circumstances involved in the laying of pipelines can vary so dramatically from one region to another, it is not surprising that little progress has been made towards a comprehensive multilateral treaty dealing with pipelines’. Crowley (n 8) 58.

n 12
n 42
n 8

98 Wiese (n 42) 222.

n 42

99 Koivurova and Pölönen (n 11) 160 and 174. The parties to the Convention on Environmental Impact Assessment in a Transboundary Context (adopted 25 February 1991, entered into force 10 September 1997) 1989 UNTS 310 (Espoo Convention) engaged much deeper than they were obliged to by the Convention's minimum requirements. Also Russia, a non-party to the Espoo Convention, agreed to apply the Convention to the extent permitted by its national legislation. It should be noted that States bordering an enclosed or semi-enclosed sea like the Baltic Sea have a particular duty to cooperate in the exercise of their rights and in the performance of their duties under UNCLOS. UNCLOS (n 9) art 123.

n 11
n 9

100 This follows generally from the Vienna Convention on the Law of Treaties (n 28) art 26, but also from UNCLOS (n 9) art 300.

n 28
n 9

101 One of the indispensable functions of this principle has been found to be that ‘[t]he conflict of equal rights must be reconciled by the application of good faith’. O'Connor, JF, Good Faith in International Law (Dartmouth 1991) 124Google Scholar.

102 In the River Meuse Case the Permanent Court of International Justice held that ‘the Court finds it difficult to admit that the Netherlands are now warranted in complaining of the construction and operation of a lock of which they themselves set an example in the past’. Diversion of Water from Meuse (Neth v Belg), 1937 PCIJ, Series A/B, No 70, para 84. See also the reasoning on the application of good faith in such situations by Franck who draws, inter alia, on the River Meuse Case. Franck, TM, Fairness in International Law and Institutions (Clarendon Press 1995) 51Google Scholar.

103 Wolf (11) 49.

104 Gabcíkovo-Nagymaros Project Case (Hungary v Slovakia), ICJ Reports (1997) 7.

105 GA Res 56/83, 12 December 2001, Annex, as corrected by UN Doc A/56/49(Vol I)/Corr 4.

106 ibid art 25(1).

ibid

107 In the words of the ILC the ‘the interest relied on must outweigh all other considerations, not merely from the point of view of the acting State but on a reasonable assessment of the competing interests, whether these are individual or collective’. ibid Commentary to art 25, para 17 (footnote not included).

ibid

108 The Chinese Working Paper held that ‘[t]he delineation of the course for laying submarine cables and pipelines on the continental shelf by foreign states is subject to the consent of the costal State’. Working Paper on Sea Area within the Limits of National Jurisdiction, A/AC.138/SC.II/L.34 (16 July 1973) 4.

109 ILC, Report of the International Law Commission on the Work of its Eighth Session (23 April–4 July 1956) UN Doc A/3159, 299. Art 70 of the ILC's Articles concerning the law of the sea reads ‘Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables on the continental shelf’ and was thus identical to art 4 in the Convention on the Continental Shelf adopted in 1958.

110 Hollo (n 89) 194ff. On alternative routes—primarily land-based ones—discussed in relation to the Nord Stream project see Solum Whist (n 21) 18ff.

n 89
n 21

111 See instead Koivurova and Pölönen (n 11) and Hollo (n 89).

n 11
n 89

112 Wolf (n 11) 255.

n 11
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