The Impact of the 1994 Agreement on the Estonian

The primary aim of both States Parties to the 1994 Agreement was to ensure free passage through the Gulf of Finland. The Estonian foreign minister explained at the Parliament that this was “a completely voluntary political self-limitation.”⁴⁵⁹ This was interpreted in Estonia as a concession to the Russian Federation.⁴⁶⁰ The foreign minister of Estonia noted during the reading of the Maritime Boundaries Act draft in the Parliament that “There is no legal limita-tion, no legal factors that would commit us to it. I repeat, we do it on the basis of a voluntary decision.”⁴⁶¹ The explanatory note of the Maritime Boundaries Act adds that the boundary of the Estonian territorial sea in the Gulf of Finland

“reflects Estonia’s geopolitical position.”⁴⁶² Founding the territorial sea bound-ary in the Gulf of Finland on such political arguments did not coincide well with popular sentiments in Estonia, which had only recently regained its inde-pendence. This was further aggravated by the lack of legal arguments on behalf of the Estonian politicians for the establishment of the EEZ corridor in the Gulf

457 See more specifically on the high seas freedoms in the Gulf of Finland in A. Lott. Marine Environmental Protection and Transboundary Pipeline Projects: A Case Study of the Nord Stream Pipeline. – 27 Utrecht Journal of International and European Law 2011, pp.

56–61.

458 Explanatory Note to the 1993 Maritime Boundaries Act of Estonia, op. cit., pp. 2–3.

459 The oral explanations by the Estonian foreign minister in the Minutes of the first reading of the draft Maritime Boundaries Act in the Estonian Parliament. The stenographic record of the VII Riigikogu, 21.01.1993. Accessible in Estonian at: http://

stenogrammid.riigikogu.ee (14.09.2016).

460 Ibid.

461 Ibid.

462 Explanatory Note to the 1993 Maritime Boundaries Act of Estonia, op. cit., p. 2.

of Finland during the drafting of the Maritime Boundaries Act, its passing in the Parliament and thereafter.⁴⁶³

At the same time, the Parliament’s defence committee had presented a com-peting draft act – the Territorial Sea Act. The 1993 draft Territorial Sea Act would have extended Estonia’s territorial sea up to 12 miles in the Gulf of Fin-land and thus abolished the EEZ corridor.⁴⁶⁴ The extension of the width of the Estonian territorial sea was also proposed in another draft act from 2007.

According to the 2007 draft act, the EEZ corridor in the Gulf of Finland comprises approximately 1250 km² of Estonian maritime area that should instead be declared Estonia’s territorial sea.⁴⁶⁵ This proposition had been sup-ported in 2005 inter alia by the recent Prime Minister of Estonia Juhan Parts, renowned Estonian scholar on the international law of the sea Heiki Lindpere, Member of the Parliament professor Igor Gräzin and the former mayor of Tal-linn Hardo Aasmäe.⁴⁶⁶ The authors were primarily motivated by the aim of pre-venting the laying of the Nord Stream transboundary pipeline in the Gulf of Finland due to security and environmental considerations.⁴⁶⁷ Particularly, in case the EEZ corridor in the Gulf of Finland would have been abolished by Estonia and Finland prior to the establishment of the Nord Stream submarine pipeline, then the States behind that project would not have enjoyed the freedom of laying submarine cables and pipelines in this maritime area, as stipulated in Article 58(1) of the LOSC.

The extension of the width of the Estonian territorial sea would have brought to the fore the likely non-conformity of the Estonian domestic law on the right of innocent passage with the LOSC and potential conflict with other States, as the 2007 draft act did not propose to annul the requirement of prior notification for a foreign military vessel or other foreign vessel used for national non-com-mercial purposes to sail through the Estonian territorial sea in the Gulf of Fin-land (Section 13(2) of the State Border Act). The draft act proceeded from the misconception that “pursuant to the [law of the sea] convention, foreign war-ships must ask for a permission from the coastal State to exercise the right of innocent passage.”⁴⁶⁸ This misconception was employed even though it had been stressed in the Estonian legal literature that a possible expansion of the territorial sea in the Gulf of Finland to the median line should be coupled with

463 As will be subsequently analysed, there were numerous legal arguments that could have been advanced in favour of the establishment of the EEZ corridor.

464 Second reading of the draft Territorial Sea Act. Stenographic record of the Parliament, 10.03.1993. Accessible in Estonian at: http://stenogrammid.riigikogu.ee (14.09.2016).

The Parliament rejected the draft Act with a narrow margin, as examined previously (36 for, 38 against, 2 neutral).

465 Explanatory Note to the 1993 Maritime Boundaries Act of Estonia 3 SE. Tallinn 2007, p. 2. Accessible in Estonian at: http://www.riigikogu.ee/?op=ems&page=eelnou&eid=

61bf6a3e-fe48-9195-b305-944e25f26bf7& (14.09.2016).

466 H. Aasmäe, I. Gräzin, H. Lindpere, J. Parts. Eesti merepiiri tuleb nihutada. Eesti Päevaleht, 28.12.2005.

467 Ibid.

468 Explanatory Note to the 2007 Maritime Boundaries Act, op. cit., p. 3.

the amendment of section 13(2) of the Estonian State Border Act, so as to aban-don the requirement of prior notification or authorisation for innocent pas-sage.⁴⁶⁹

By comparison, the Finnish legislators were more elaborate in their reasons on the legal necessity for establishing the EEZ corridor in the Gulf of Finland.

Finland established its 3-miles-wide EEZ corridor in the Gulf of Finland in 1995 in the course of amending the Act on the Delimitation of the Territorial Waters of Finland. The aim of the Act was to ensure its conformity with the LOSC, which had entered into force in the previous year. In its section 5, the breadth of the Finnish territorial sea was extended from 4 miles to 12 miles.

Sweden had already established a 12-miles-wide territorial sea in 1979,⁴⁷⁰ whereas Finland had thus far refrained from doing so to avoid a common terri-torial sea boundary with the Soviet Union in the Gulf of Finland.⁴⁷¹ Yet in the aftermath of the dissolution of the Soviet Union and the restoration of Estonia’s independence, Finland considered it necessary to extend its territorial sea in order to enhance the effectiveness of its coast guard, particularly against smuggling.⁴⁷²

Exceptions to the 12-miles-wide territorial sea were stipulated in section 5a of the Act on the Delimitation of the Territorial Waters of Finland. In particular, its section 5a(2) guaranteed that in the Gulf of Bothnia and in its southern and northern parts, in the Åland Sea and in the northern part of the Baltic Sea, no point of the outer limits of the territorial sea overlaps with the Swedish maritime zones as agreed upon in bilateral treaties. Additionally, its section 5a(1) pro-vides that in the Gulf of Finland, the outer limits of the territorial sea consist of a line which runs at a distance of at least 3 miles from the median line and every point of which is located north of channels customarily used for international navigation. Thus, section 5a(1) corresponds to the 1994 agreement between Estonia and Finland.

The explanatory note of the amendments to the Act on the Delimitation of the Territorial Waters of Finland refers to the 1979 agreement between Den-mark and Sweden concerning the delimitation of the territorial waters between Denmark and Sweden⁴⁷³ as an example for the 1994 agreement between Finland

469 H. Lindpere. Maritime Zones and Shipping Laws of the Republic of Estonia: Some Selected Critique. – R. Värk (ed). Estonian Law Reform and Global Challenges: Essays Celebrating the Tenth Anniversary of the Institute of Law, University of Tartu. Tartu:

Tartu University Press 2005, p. 21.

470 Section 4 of the Act concerning the Territorial Waters of Sweden (with amendments No.

959 enacted on 18 December 1978, and No. 1140, on 20 December 1979). Adopted 03.06.1966, e.i.f. 01.07.1966. Accessible: http://www.un.org/depts/los/

LEGISLATIONANDTREATIES/PDFFILES/SWE_1979_Act.pdf (14.09.2016).

471 HE 114/1994, op. cit.

472 Ibid.

473 Exchange of Notes Constituting an Agreement between Denmark and Sweden concerning the Delimitation of the Territorial Waters between Denmark and Sweden.

Stockholm/Copenhagen 25.06.1979, e.i.f. 21.12.1979. Accessible: http://www.un.org/

depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/DNK-SWE1979TW.PDF (14.09.2016).

and Estonia on the establishment of the EEZ corridor in the Gulf of Finland.⁴⁷⁴ Likewise, it should be noted that Denmark and Germany have limited their ter-ritorial sea in the Femer and Kadet straits so as to guarantee a 4-miles-wide channel through their EEZ which links the Great Belt and the Little Belt with the Baltic Sea proper.⁴⁷⁵

With respect to the Danish Straits, for maintaining the freedom of passage subsequent to the extension of their territorial sea to 12 miles, Sweden and Denmark limited their territorial sea in the channels between the Swedish coast and the Danish coast at Skagen, as well as at Laeso, Anholt and Bornholm so that on both sides of the median line there is an area of high seas at least 3 miles wide.⁴⁷⁶ Both States agreed to make it possible for foreign vessels and aircraft to transit the high seas in Øresund.⁴⁷⁷ Under the 1944 Chicago Convention,⁴⁷⁸ for-eign aircraft would not have had the freedom of overflight in the absence of such a corridor. The corridor was also necessary for safeguarding passage rights since at the time both Denmark and Sweden required a notification from foreign warships or other government ships operating for non-commercial purposes prior to exercising innocent passage.⁴⁷⁹

474 HE 114/1994, op. cit.

475 See section 1 of the Proclamation by the Government of the Federal Republic of Germany concerning the extension of the breadth of the German territorial sea. Adopted 11.11.1994, e.i.f. 01.01.1995. Accessible: http://www.un.org/depts/los/

LEGISLATIONANDTREATIES/PDFFILES/deu_1994_territorial_proclamation.pdf (14.09.2016). See also R. Lagoni. Straits Used for International Navigation: Environmental Protection and Maritime Safety in the Danish Straits. – B. Öztürk, R. Özkan (eds). The Proceedings of the Symposium on the Straits Used for International Navigation. Istanbul:

Turkish Marine Research Foundation 2002, p. 161. R. Platzöder. Bridges and Straits in the Baltic Sea. – R. Platzöder, P. Verlaan (eds). The Baltic Sea: New Developments in National Policies and International Cooperation. The Hague/London/Boston: Martinus Nijhoff 1996, pp. 148–149. B. Kwiatkowska. Economic and Environmental Considerations in Maritime Boundary Delimitations. – J. I. Charney, L. M. Alexander (eds). International Maritime Boundaries, vol. 1. Dordrecht, Boston, London: Martinus Nijhoff 1993, p. 100.

476 The 1979 Danish-Swedish Agreement, op. cit., p. 1.

477 Ibid.

478 Convention on International Civil Aviation. Chicago 06.12.1944, e.i.f. 04.04.1947.

479 LOSC: Declarations made upon signature, ratification, accession or succession or anytime thereafter, op. cit. – Denmark; Sweden. Accessible: http://www.un.org/depts/

los/convention_agreements/convention_declarations.htm# (14.09.2016). See Royal Ordinance No. 73 Governing the Admission of Foreign Warships and Military Aircraft to Danish Territory in Time of Peace. Adopted 27.02.1976, e.i.f. 27.02.1976. Sweden later waived this requirement and Denmark loosened the conditions in 1999 by requiring prior notification only in case of simultaneous passage of the Great Belt, Samsoe Belt or the Sound of more than three warships to the same nationality or in case of passage through Hollaenderdybet/Drogden or the Little Belt and, in connection therewith, the necessary navigation by the shortest route through internal waters between Funen, Endelave and Samsoe. Ordinance Governing the Admission of Foreign Warships and Military Aircraft to Danish Territory in Time of Peace. Adopted 16.04.1999, e.i.f.

01.05.1999, Articles 3(2) and 4(2). Accessible: https://www.un.org/depts/los/

LEGISLATIONANDTREATIES/PDFFILES/DNK_1999_Ordinance.pdf (14.09.2016).

Similarly, at the time of the conclusion of the 1994 bilateral Agreement, both Finland and Estonia required a prior notification from a foreign warship or another government ship operating for non-commercial purposes that was about to exercise its innocent passage in the Estonian or Finnish territorial sea.⁴⁸⁰ The Finnish legislators noted that if Estonia and Finland were to expand their territo-rial sea up to 12 miles in the Gulf of Finland, then foreign ships would have no other option but to sail through the territorial sea of either of the coastal States in order to reach the other side of the passage through the Gulf of Finland and thus foreign warships or other government ships operating for non-commercial purposes and sailing to or from e.g. St Petersburg or Kronstadt would have to give a prior notification to the coastal State.⁴⁸¹ The legislators noted that such an extension of the territorial sea would have also closed the international corridor for overflights.⁴⁸² The explanatory note of the amendments to the Act on the Delimitation of the Territorial Waters of Finland states that the aim of the EEZ corridor in the Gulf of Finland is to guarantee an unhindered passage for ships and aircraft to St Petersburg and Kronstadt.⁴⁸³

The above-mentioned arguments for the establishment of the EEZ corridor would be relevant if the strait States’ assumption on the general applicability of the regime of non-suspendable innocent passage to the Viro Strait under Article 45(1)(b) of the LOSC was correct. If, instead, the regime of transit passage (Article 37 of the LOSC) would have been applicable to ships and aircraft transiting the Viro Strait, then the establishment of the EEZ corridor would not have been necessary for the purposes of safeguarding the freedoms of naviga-tion and overflight in the strait. Therefore, it is examined next whether the Gulf of Finland proper (excl. the Viro Strait) falls entirely under the territorial sea of its coastal States. In case an EEZ would exist in the Gulf of Finland proper (to the east of Vaindloo Island), then it would have profound implications to the passage regime of the Viro Strait, as studied above in the example of the Irbe Strait in the Gulf of Riga.⁴⁸⁴

480 Section 13(2) of the State Border Act of Estonia. Section 9 of the Asetus Suomen alueen valvonnasta ja sen alueellisen koskemattomuuden turvaamisesta (Decree on Surveillance of Finnish Territory and Protection of Finland’s Territorial Integrity). Adopted 01.12.1989, e.i.f.

01.01.1990. Accessible in Finnish and Swedish at: http://www.finlex.fi/fi/laki/alkup/

1989/19891069 (14.09.2016). Due to mounting international pressure Sweden annulled the requirement of prior notification in January 1995 after the entry into force of the LOSC (Article 17) and Finland followed its suit on May 1st, 1996. See Ordinance concerning the admission to Swedish territory of foreign naval vessels and military aircraft (as amended 27.10.1994). Adopted 03.06.1966, e.i.f. 03.06.1966. See 1996 Proposal of the Finnish Government. – 2.1. Aluemeri. op. cit. See also US Navy Judge Advocate General’s Corps. – Sweden. Summary of Claims, April 2014. Accessible: http://www.jag.navy.mil/organization/

documents/mcrm/Sweden2014.pdf (14.09.2016).

481 HE 114/1994, op. cit.

482 Ibid.

483 Ibid.

484 See supra sections 4.2 and 5 of chapter 1 in Part III.

3. The Inapplicability of Article 45(1)(b) of the LOSC to the Viro Strait