More questions than answers on the pipeline project
It has been known for some time now that Russia and Germany would proceed with an undersea gas pipeline project linking the two countries directly. But what does this really mean to other Baltic Sea states? The discussion which has arisen in past months over the Russian-German gas pipeline, has still not articulated a clear vision of why and how the states affected by the gas pipeline project should impede or seek to direct it. A number of factors may be relevant.
The International Maritime Organization has declared the Baltic Sea to be an extremely dangerous maritime area. Though the sea is relatively small, its shipping traffic is one of the most dense in the world, especially in respect of oil transportation.
Then there is the Helsinki Convention. The purpose of the Helsinki Convention, to which Russia and Germany are also parties, is to protect the maritime environment of the Baltic Sea from any pollution and to provide the highest possible support for its ecological reconstruction. The convention directs the parties to follow the precautionary principle.
But what does following the precautionary principle mean? It means examining thoroughly the risks resulting from use of the maritime environment; it means the use of the best obtainable equipment; it means cooperative creation of action plans for potential pollution cases; and it means avoidance of pollution risks even if the exact impact to the environment is unknown. This is not an obligation binding only upon the "acting persons" but also upon the "watchers."
The Helsinki Convention is also supported by the "bible" of international maritime law 's the United Nations Convention on the Law of the Sea, which provides similar norms for regulation of activities in the bottom of the sea.
Against this legal backdrop, a number of international law observers are finding it hard to avoid criticism of the unilaterally imposed pipeline plans of Russia and Germany. The pipeline planning states may wish to use a liberal interpretation of international law, but a number of the smaller surrounding EU member states who are influenced by the project have concerns about not being treated as equal partners as custodians of the Baltic Sea. Heightening the sense of unease is the lack of any informed international public discussion about the risks of this project or any explanation as to why the project has been shrouded in secrecy from the outset.
One can only speculate at this stage about the risks involved in possible chemical leaks, gas leaks, existing communication and electric cable configurations crossing paths during construction of the pipeline, dense shipping traffic, not to mention as of yet undetonated WWII bombs and mines.
What is to be done? In posing the question we must not forget the positive aspect of this gas pipeline: the possibility to create a gas supply circle for Europe. In the future even Norway might join this circle, thus granting a more sound gas supply for the whole of Europe.
For Estonia, the situation is complicated, as the gas pipeline shall not pass through its territorial waters; therefore we have no grounds for seeking a prohibition directly of the planned pipeline activities. As a border contract with Russia has not been ratified bilaterally, it is pointless to speculate whether it would have granted a possibility to restrict the construction in some narrower spots of the gulf. There is an agreement between Estonia and Finland by which the two republics withdrew the outline borders of their territorial seas by three nautical miles from the centreline of the Baltic Sea, thus creating a corridor with legal regulation of an exclusive economic zone.
Although the Convention on the Law of the Sea is aimed above all at the freedom of pipeline construction, such freedom cannot be absolute. The restrictions are adopted for environmental protection. The Convention on the Law of the Sea is intended to provide a coastal country with some marginal rights to speak out in respect of the scheme and direction of such projects as the pipeline project.
What is being done? The Helsinki Convention has established a special commission that is authorized to evaluate all activities in the Baltic Sea from the aspect of environmental damages and to provide suggestions for gaining the optimal result. As this matter is definitely within the sphere of interest of Estonia and other states of the Baltic Sea, such interested states should direct the gas pipeline matter to this commission for discussion. Estonia as a EU member state should also make more efforts focused on formulating a joint standpoint in respect of participation rights of the affected states and regarding legal correctness, which in the meaning of international law, from the perspective of some legal observers, is basically absent in this project.
Leon Glikman is attorney at law Teder, Glikman & Partners; Paul Keres is a student at TU Institute of Law