The Passages to the Sea of Straits Proper as Long-Standing

Some parts of the Estonian maritime area were already declared internal waters in 1918. Pursuant to Article 2 of the 1918 Estonian Temporary Administrative Laws, the cannon-shot rule was used for delimiting bays and their inner parts over which it was possible to exercise complete dominion from the coast. These waters formed the internal waters of Estonia. This regulation was in force until 1938 when it was replaced with the Waterways Act which, however, did not distinguish bays (formerly internal waters) from the territorial sea.

However, in the autumn of 1938, the Neutrality Act was passed by the Esto-nian Parliament. It provided in section 2(3) that the EstoEsto-nian internal waters shall be deemed to include ports, entrances to ports, gulfs and bays, and the waters between those Estonian islands, islets and reefs which are not constantly submerged, and between the said islands, islets and reefs and the mainland.

Internal waters of Estonia, as well as of Finland (incl. its Archipelago Sea),⁷⁴⁵

742 The authors have not taken the Latvian EEZ in the Gulf of Riga into account, which is why this categorisation is not correct in any case, since the Sea of Straits would prima facie fall under the regime of transit passage.

743 Caminos, Cogliati-Bantz, op. cit., p. 166.

744 See US Navy Judge Advocate General’s Corps. – Estonia, op. cit.

745 See Article 2(2) of Suomen puolueettomuutta koskevia määräyksiä (Neutrality Act), 17/1938. Accessible in Finnish at: https://www.finlex.fi/fi/sopimukset/sopsteksti/

thus comprised maritime areas that were strongly connected to the coast due to the location of bays⁷⁴⁶ or islands. The Neutrality Act was proclaimed by the Estonian President on December 3^rd, 1938.⁷⁴⁷

The explanatory note of the draft law underlines that the Neutrality Act of Estonia was drafted on the basis of the neutrality acts that were adopted in 1938 by Denmark, Finland, Norway and Sweden, all of which had been harmonised between those States.⁷⁴⁸ Although the explanatory note does not refer to Iceland, it was also a signatory State to the Declaration between Denmark, Finland, Ice-land, Norway and Sweden for the Purpose of Establishing Similar Rules of Neutrality.⁷⁴⁹ On the basis of the Scandinavian rules of neutrality, as stipulated in the 1938 Declaration,⁷⁵⁰ the above-referred countries adopted domestic legislation on neutrality which pertained prima facie to the law of the sea from the perspective of the coastal State’s maritime security in times of war.

Estonia took the Swedish Neutrality Act as an example and made only few modifications so that its Neutrality Act would better suit its needs.⁷⁵¹ With the aim of establishing a harmonised legal framework in the coastal States of the Baltic Sea, the Estonian Government sent its draft law on neutrality to the Lat-vian and Lithuanian governments a couple of days after its referral to the Esto-nian Parliament on October 1^st, 1938.⁷⁵² On November 18^th, 1938, the foreign ministers of Estonia, Latvia and Lithuania signed in Riga a protocol which had

1938/19380017 (14.09.2016). See also ERA.957.14.627, p. 2. Article 2(2) of the said Act provided analogously to the Estonian above-referred provision that

”Suomen sisäisillä aluevesillä tarkoitetaan tässä asetuksessa Suomen satamia, satama-väyliä, lahtia ja lahdelmia sekä niitä osia Suomen aluevedestä, jotka ovat Suomelle kuuluvien saarien, luotojen ja ainakin ajoittain vedenpinnalla näkyvien karien sisä-puolella tai välissä.”

746 E.g. Tallinn Bay along the line between the islands of Aegna and Naissaar, as well as Paldiski Bay along Pakri Islands and Pärnu Bay taking also into account with the islands of Manilaiu, Sorgu and Kihnu. This also included Matsalu and Haapsalu bays in the Sea of Straits.

747 Rahvusraamatukogu. Meie parlament ja aeg: VI Riigikogu (Riigivolikogu ja Riiginõukogu) 17.04.1938 – 05.07.1940. Accessible in Estonian at: https://www.nlib.ee/

html/expo/p90/p1/38.html (14.09.2016).

748 ERA.957.14.561, p. 3. On the minor variations between the otherwise identical acts see N. J. Padelford. The New Scandinavian Neutrality Rules. – 32 The American Journal of International Law 1938 (4), pp. 789–790.

749 Declaration between Denmark, Finland Iceland, Norway and Sweden for the Purpose of Establishing Similar Rules of Neutrality. Stockholm 27.05.1938. Accessible:

http://www.histdoc.net/history/nordic1938_en.html (14.09.2016). For the text of the Declaration see also: Denmark-Finland-Iceland-Norway-Sweden: Declaration Regarding Similar Rules of Neutrality. – 32 The American Journal of International Law 1938 (4), pp. 141–163.

750 The Scandinavian Neutrality Rules were drafted on the basis of meetings of the foreign ministers in April 1937 (Helsinki), September 1937 (Stockholm) and in April 1938 (Oslo). See ERA.957.14.627, p. 20(verso).

751 ERA.957.14.561, pp. 3–4.

752 ERA.957.14.563, p. 3.

been discussed earlier by experts of the three Baltic States in Tallinn on November 3^rd, 1938.⁷⁵³

The protocol – essentially a counterpart to the 1938 Scandinavian declara-tion – stipulated the neutrality rules of Estonia, Latvia and Lithuania and included the text of the rules. The rules were drafted on the basis of the Esto-nian Neutrality Act.⁷⁵⁴ Upon the Estonian proposal,⁷⁵⁵ the Protocol foresaw prior consultations between the three Baltic States in case any of them should decide to introduce any modifications to their domestic Neutrality Act diverging from the Baltic neutrality rules as agreed between them in the text of Loi portant réglementation de la neutralité.⁷⁵⁶ Latvia and Lithuania thereby adopted the definition of internal waters as provided in the Estonian Neutrality Act.⁷⁵⁷ In broader terms, all the northern countries – Denmark, Finland, Iceland, Sweden, Norway and the three Baltic States – adopted an identical general definition of internal waters in 1938.⁷⁵⁸

As examined below,⁷⁵⁹ it appears that only the United Kingdom explicitly objected to the adoption of this definition of internal waters in the Estonian Neutrality Act (as it did also with the other Nordic States). Yet, as noted by Estonia and the other Nordic States in their replies to the United Kingdom’s protest,⁷⁶⁰ this particular definition had already been settled in the 1912 Scandinavian Rules of Neutrality in the spirit of the 1907 Hague Convention XIII.⁷⁶¹ Section 1(c) of the 1912 Scandinavian Rules of Neutrality stipulated that “Interior waters include, in addition to ports, entrances to ports, roads and bays, the territorial waters situated between islands, islets, and reefs which are not constantly submerged, and between these and the mainland.”⁷⁶² This defini-tion is the same as that included in the 1938 Nordic Neutrality Rules (except

753 See a copy of the protocol in ERA.957.14.562, p. 2.

754 See the text of the Baltic neutrality rules in, ibid, pp. 3–8.

755 ERA.957.14.563, p. 7.

756 ERA.957.14.562, p. 2. Analogously, the Scandinavian neutrality rules provided that,

“And have agreed that, should any of them desire, in the light of their own experience, to modify the said Rules, as contemplated by the Convention on the Rights and Duties of Neutral Powers in Naval War, signed at The Hague on October 18^th, 1907, they shall not do so without first giving, if possible, sufficient notice to the other four Governments to permit of an exchange of views in the matter.” See the 1938 Declaration between Denmark, Finland, Iceland, Norway and Sweden, op. cit.

757 ERA.957.14.562, p. 3.

758 ERA.957.14.561, p. 3.

759 See infra section 4.3 of Part V.

760 See infra section 4.3 of Part V.

761 Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War.

The Hague 18.10.1907, e.i.f. 26.01.1910.

762 Declaration by Norway, Denmark and Sweden relative to the Establishment of Uniform Rules of Neutrality. Stockholm 21.12.1912. See also Rules of Neutrality established by order of H. M. the King of Norway. 18.12.1912, section 1(c). Both accessible: Declar-ation by Norway, Denmark and Sweden Relative to the Establishment of Uniform Rules of Neutrality. – 7 The American Journal of International Law 1913(3), pp. 187–191.

some minor differences in wording) as well as in section 2(3) of the Estonian Neutrality Act.

It appears that in the course of this nearly three decades long timeframe, the United Kingdom was the principal and seemingly the only protesting State against the neutrality rules (incl. the definition of internal waters). On this basis, it may be concluded that generally, other States tacitly accepted the definition of internal waters as included first in the 1912 Scandinavian Rules of Neutrality and repeated in the 1938 Neutrality Acts. The Estonian Neutrality Act falls into this broader context.

As examined below, even the content of the United Kingdom’s protest against the Estonian Neutrality Act overlapped with those protests made against the other Nordic States. Likewise, Estonia’s reply to the United Kingdom’s protest was almost a verbatim copy of its Nordic counterparts’ responses. As the Estonian archival materials include no indication that any other State aside the United Kingdom protested against the 1912 Scandinavian Rules of Neutrality and its 1938 counterpart, it is reasonable to suggest that States tacitly acqui-esced to the definition of internal waters as included inter alia in the 1938 Esto-nian Neutrality Act.

The passages to the Sea of Straits – Hari Strait, Voosi Strait, Soela Strait and Big Strait, as well as Small Strait – meet the conditions of the above-cited sec-tion 2(3) of the 1938 Neutrality Act. They are narrow passages with a width of no more than 2.5 miles – although the absolute width of the Hari Strait and the Big Strait is slightly greater, their width in terms of section 2(3) of the 1938 Neutrality Act should be measured on the basis of the maximum distances between the islands that are located in the strait (incl. the islets of Viirelaid (hist. Pater Noster), Kesselaid (hist. Sköld/Schildau) and Harilaid (hist. Hares)).

Thus, the passages to the Sea of Straits proper satisfy the criteria of section 2(3) of the 1938 Neutrality Act and should be considered in terms of Article 35(a) of the LOSC as such internal waters that were internal waters also prior to the es-tablishment of straight baselines by Estonia. Hence, the right of transit passage does not apply in the Sea of Straits.

The current Estonian domestic legal framework on passage rights in the Sea of Straits is thus generally in conformity with the LOSC. This follows also from the teleological interpretation of Article 35(a) of the LOSC since, as the transit passage does not apply in the passages to the Sea of Straits, then even if such a right would potentially exist in small maritime pockets in the Sea of Straits proper, e.g. in some sections of the Hiiu Strait⁷⁶³ or Muhu Strait, it would be void of any practical meaning because, in any case, foreign ships and aircraft would not have the right of transit passage for reaching these small maritime areas.

763 In the 1920s and 1930s as well as in the 19^th century, this maritime area was commonly known as Kassari Bay. Since section 2(3) of the Neutrality Act refers explicitly to bays as internal waters, this maritime area should, following the literal interpretation, also be considered as internal waters. See maps: ERA.T-6.3.1249, p. 1, ERA.T-6.3.1250, p. 1, ERA.T-6.3.1251, p. 1, ERA.T-6.3.1302, p. 1.

Due to the above-mentioned reasons, the passages in the Sea of Straits should not be considered international straits. Instead, they are non-international straits in terms of LOSC Article 35(a) through which foreign ships and aircraft cannot exercise transit passage. Likewise, as will be examined next, the Sea of Straits proper (in addition to its passages) also meets the criteria of Article 35(a) of the LOSC.

4.3. The Sea of Straits Proper as Long-Standing Internal Waters