The Sea of Straits Proper as Long-Standing Internal Waters

in 1938,⁷⁶⁴ the British Foreign Office made certain protests in its memoran-dum⁷⁶⁵ of June 5^th, 1939 against some of the provisions of the Estonian Neutral-ity Act. The Estonian Ministry of Foreign Affairs replied to the British Foreign Office on October 2^nd, 1939 by stating inter alia that

“The Estonian Government wishes to point out that the rules of international law which regulate neutrality often comprise only a minimum of obligations neces-sary for safeguarding neutrality. It is quite clear in such cases that a neutral State is entitled, within the limits of its sovereignty, to issue, at its own discretion and for the protection of its interests, more extensive rules than those prescribed by international law.

In the sphere of neutrality law, new situations may arise for the regulation of which no precedent producing recognised principles of international law and practice can be invoked. In cases where neither any precise international rules nor the generally accepted principles of international law give direct guidance, every particular State has to decide for itself in which way and by which means its position as a neutral should most appropriately be maintained.”⁷⁶⁶

These passages in the Estonian reply, just like most of the others, were identical to the ones in the prior responses made by the Nordic countries to the British protest. Also, as a standard reply to the British Foreign Office with regard to its comments on the Nordic definition of internal waters, the Estonian Ministry of Foreign Affairs explained that

“The Estonian Government has adopted for the definition of the interior waters the principles embodied in the Neutrality Rules of 1912 of the Scandinavian States. The Estonian Government has, in consequence, introduced into their leg-islation no innovation unknown to the international practice.”⁷⁶⁷

764 ERA.957.14.563, p. 5.

765 An analogous memorandum was presented by the British Foreign Office to the govern-ments of all the northern countries that adopted the neutrality act in 1938, including Finland, Latvia, Lithuania and Sweden. Ibid, pp. 5–6. See also ERA.957.14.768, pp. 1–5.

766 ERA.957.14.590, pp. 5–6.

767 Ibid, p. 7.

This reply followed mutatis mutandis the words of inter alia the Swedish and Finnish responses to the British Foreign Office,⁷⁶⁸ which also referred to the 1912 Declaration by Denmark, Norway and Sweden of Neutrality and Rules of Neutrality. Yet the Estonian response included also an exceptional clause, according to which,

“At the same time, it should be realised that the interior waters as defined by this law do not in practice extend beyond the limits of the Estonian territorial waters.”⁷⁶⁹

Notably, the breadth of the Sea of Straits exceeded the 8 miles breadth of the territorial sea of Estonia as provided in the 1938 Waterways Act and measured from the opposite coasts of the Sea of Straits. Ants Piip noted in 1926 that the coastal State has the same rights over its straits that apply to its coastal sea (i.e.

territorial sea), which implies that if the breadth of a strait is narrower than the double breadth of the territorial sea, it is wholly a coastal sea (i.e. territorial sea).⁷⁷⁰ According to this rule, the central area of the Sea of Straits would have been high seas which would not have been covered by the initial 3-miles-wide or, as of 1938, the 4-miles-wide territorial sea. It follows from this that in terms of section 2(3) of the Neutrality Act, Estonia’s internal waters could neither have covered this central maritime area. However, as discussed above, section 3 of the 1938 Waterways Act provided that the waters of the Sea of Straits are part of the territorial sea of Estonia.

The neutrality acts of 1938 did not provide for a specific limit for the breadth of the coastal State’s internal waters. However, an early draft of the 1938 Esto-nian Neutrality Act included handwritten amendments to its section 2(3), according to which the limit of the internal waters would have been “up to four nautical miles.”⁷⁷¹ Most likely, this proposal for the modification of section 2(3) was abandoned in order to maintain the uniform wording of the definition of internal waters with the Nordic neutrality rules. However, it might have also been wise since, as confirmed by the Estonian Ministry of Foreign Affairs in its afore-referred reply to the British Foreign Office, the internal waters of Estonia did not extend beyond the limit of its territorial sea.

Namely, the limit of the breadth of the Estonian territorial sea in the Sea of Straits differed from the usual 4 miles and was instead up to 5 miles. If section 2(3) of the Neutrality Act would have stipulated as the limit of the width of Estonia’s internal waters 4 miles, then it would have resulted in the exclusion of the possibility to consider the whole maritime area of the Sea of Straits as inter-nal waters. Under section 2(3) of the Neutrality Act, the whole maritime area of the Sea of Straits may be considered as internal waters due to its deeply indented coastline that encloses the Sea of Straits and the presence of hundreds

768 See the Swedish and Finnish replies in: Ibid, pp. 36–38 and 53–54.

769 ERA.957.14.590, p. 7.

770 Piip 1926, op. cit., p. 11.

771 ERA.957.14.590, p. 11.

of islands which extend in many sections even to the most distant maritime areas in the centre of the Sea of Straits.⁷⁷²

In the Northern Baltic Sea, the Article 35(a)-exception of the LOSC thus applies to the Sea of Straits in Estonia, but most likely also to the multiple straits in the Åland region of Finland, both areas of which are part of the inter-nal waters of the coastal State under the Nordic neutrality rules of 1938. It is also likely that it applies to the narrow Kalmarsund in Sweden. Albeit Gunnar Alexandersson regarded Kalmarsund as an international strait,⁷⁷³ it may not be considered as such since its waters, which are in many sections not more than 2 miles wide, may potentially be considered as falling under the definition of internal waters under section 2 of the 1938 Nordic neutrality rules.

In particular, the Swedish 1938 Neutrality Act⁷⁷⁴ included in its section 2 a definition of internal waters which was identical with the one provided in the Estonian Neutrality Act, except for a clause according to which the Swedish waters in Øresund are not internal waters, save for the ports and entrances to the ports in Øresund.⁷⁷⁵ It did not provide for any exception with regard to Kalmar-sund, the waters of which are even narrower (in many sections approx. 2 miles or less) as compared to the waters of Øresund. In contemporary legal literature it is usually understood that under Article 38(1) of the LOSC, the above-referred Messina clause should apply to Kalmarsund.⁷⁷⁶ Yet in light of the fore-going, under section 2 of its 1938 Neutrality Act, it might be possible for Swe-den to exclude, in accordance with Article 35(a) of the LOSC, the right of transit and innocent passage in the strait altogether.

The above-referred conclusion on the application of the LOSC Article 35(a)-exception to the Sea of Straits is further confirmed by the fact that already on May 2^nd, 1923, a high-level Estonian Government commission (comprised of representatives of the Ministries of Foreign Affairs, War and Interior as well as the Maritime Administration) composed a map of the outer limits of the Esto-nian maritime zones upon the request of the Parliament and the decision of the Government (dated March 21^st, 1923) in which they declared that “the Muhu

772 By contrast, e.g. the waters north of Ruhnu Island cannot meet the conditions of section 2(3) of the Neutrality Act. See map 3 in Annex 1. It depicts the outer limit of the Estonian 3-miles-wide territorial sea (incl. in the Gulf of Riga). The outer limit of the Estonian pre-1940 internal waters may have in some instances nearly overlapped with that line (particularly in regards to the Abruka archipelago but to a great extent also in connection with the Kihnu archipelago). Generally, the rest of the maritime area north of Ruhnu Island would not be covered by the Article 35(a)-exception and would be subject to the regime of transit passage. In case of the Latvian maritime area, where there are no islands and the coastline is smooth, the spatial extent of the transit passage regime has even lesser constraints.

773 G. Alexandersson. The Baltic Straits. The Hague/Boston/London: Martinus Nijhoff 1982, p. 69.

774 Innefattande vissa neutralitetsbestämmelser (Neutrality Act). 1938, No. 187, 27.05.1938, section 2(2).

775 ERA.957.14.590, p. 29. ERA.957.14.583, p. 31.

776 López Martín, op. cit., p. 95. Alexander 1991, op. cit., p. 101. Platzöder, op. cit., p. 148.

Strait [at the time, this was the common name used for Väinameri since the term

“Väinameri” was adopted only in the latter part of the 1930s⁷⁷⁷ – A. L] stays completely within the internal waters of Estonia”, while “the Estonian Republic permits innocent passage through it for all ships”.⁷⁷⁸ At the same time, it is unclear on what legal basis the commission declared the whole Sea of Straits as internal waters. Since the width of the Estonian territorial sea was 3 miles in the 1920s,⁷⁷⁹ it would have been clearly insufficient for covering the whole mari-time area of the Sea of Straits. Nevertheless, the decision of this commission and its accompanying map (presented to the Government and the Parliament) shows clearly Estonia’s intent to regard the Sea of Straits as wholly comprising internal waters.

In fact, although Estonia generally granted permission to foreign ships for exercising the right of innocent passage in the Estonian territorial sea,⁷⁸⁰ in at least one instance it refused to grant permission and this concerned in particular the Sea of Straits. On June 14^th, 1934, the German Embassy in Tallinn sent a Verbal Note to the Estonian Ministry of Foreign Affairs requesting permission for its cruiser Königsberg to enter Tallinn port, for its first minesweeper flotilla (comprised of five minesweepers accompanied by a torpedo boat) to enter Narva port as well as the right for them to stay in Tagalaht (bay on the north-west coast of Saaremaa) and transit the Soela Strait, Kassari Bay, Muhu Strait, Gulf of Riga and Irbe Strait as well as for its second torpedo boat flotilla to transit the Muhu Strait and the Irbe Strait.⁷⁸¹

As usual, the Estonian Ministry of Foreign Affairs requested the position of the Estonian Defence Forces Board on the German request. The Defence Forces Board was not against the entrance of the German cruiser into Tallinn port nor the stay of minesweepers in the Tagalaht and their transit through the Irbe Strait, but found the potential entrance of the minesweepers into Narva port unacceptable since it would create a precedent which might be followed by similar requests by other States, including the Soviet Union (it also noted that the River Narva is not sufficiently deep for the minesweepers). The Defence Forces Board also deemed the requested right of transit through the Soela Strait, Kassari Bay and Muhu Strait as unacceptable, since it may be followed by anal-ogous counterclaims by the Soviet Union.⁷⁸² A corresponding Verbal Note by the Ministry of Foreign Affairs was sent to the German Embassy in Tallinn on

777 Eesti Entsüklopeedia, vol. 10, op. cit., Väinameri, p. 548.

778 ERA.957.12.389, p. 11. See also map 3 in Annex 1.

779 See map 3 in Annex 1.

780 See ERA.957.14.85, pp. 1–61, ERA.957.14.347, pp. 1–36, ERA.957.14.617, pp. 17–27, ERA.957.14.618, pp. 1–4.

781 ERA.957.14.85, pp. 17–18.

782 Ibid, p. 19.

June 26^th, 1934.⁷⁸³ Notably, the ministry did not refer to any legal basis for its refusal.⁷⁸⁴

The Defence Forces Board also noted, however, that foreign warships have previously transited the Muhu Strait, including German torpedo boats in 1927.⁷⁸⁵ It also referred to the 1920 Riga Agreement,⁷⁸⁶ concluded in the Buldur Conference between Estonia, Finland, Latvia and Poland, according to which the Finnish, Latvian and Polish navies may use the Muhu Strait for innocent passage, which they, indeed, repeatedly made use of.⁷⁸⁷ It thus follows from the foregoing that due to the apparent absence of an applicable domestic law, the Estonian authorities’ refusals from granting the right of innocent passage in the Sea of Straits to foreign warships was based on custom, rather than on any legal basis derived from international law. It seems that Germany did not protest against this decision.

However, as will be examined below, Germany was one of the two States (the other being the United Kingdom) that filed a protest against the extension of the Estonian territorial sea up to 4 miles in 1938 under the Waterways Act.

The existence of the EEZ in the Gulf of Riga might thus have a significant effect for Estonia as it resulted potentially in the application of the right of transit passage in the Sea of Straits for States that may uphold their protest against the 1938 Neutrality Act and Waterways Act. It thus necessitates further scrutiny on whether the transit passage regime may be applicable in the Sea of Straits to the ships and aircraft of such States.

783 Ibid, p. 20.

784 Procedurally, the right to such refusal was most likely based on the Välisriikide sõja-laevade külaskäikude kord (Reglement Concernant la Visite de Batiments de Guerre Etrangers en Estonie). Adopted 18.10.1922, e.i.f. 18.10.1922. For the French version of the text, see ERA.957.3.30, pp. 2–5.

785 See ERA.957.14.85, p. 19.

786 Proposal adopted in the joint session of political and military commissions on the freedom of passage of foreign warships in the waters of the contracting States. Riga 04.09.1920. For the versions of the proposal in Estonian and Russian, see ERA.957.11.383, pp. 9–10. The proposal was affirmed by the Latvian Government on October 10^th, 1920 and by the Estonian Government on October 31^st, 1924. Ibid, pp. 3, 7.

787 ERA.957.14.85, p. 19. See also ERA.957.14.617, pp. 24–27. The 1920 Riga Agreement (originally concluded in Russian) comprises two sections. Its first section regulates the use of ports by the contracting States’ warships whereas the second section provides for

“complete freedom of navigation for training purposes” for the warships of Estonia, Finland, Latvia and Poland in their territorial waters. As the result of the 1938 Neutrality Act, the Sea of Straits became part of the Estonian internal waters, which is why the second section of the 1920 Riga Agreement should not be considered applicable to this maritime area anymore and therefore not, in any case, as falling under the exception of Article 35(c) of the LOSC.

5. The Applicability of the Messina