The Significance of Islands and Domestic Law on the Internal

In general, the strait State’s domestic law on its internal waters does not have the potential of altering the legal regime of a particular strait. Under Part III of the LOSC, transit or non-suspendable innocent passage would also be appli-cable in a strait if the relevant maritime area is entirely included within the sys-tem of straight baselines and forms internal waters of the strait State. This fol-lows from Article 35(a) of the LOSC which stipulates that the right of transit passage or non-suspendable innocent passage is applicable in those internal waters, including straits where the establishment of a straight baseline has the effect of enclosing as internal waters areas which had not previously been con-sidered as such. However, its practical application inter alia in the Canadian and Russian Arctic as well as its legal criteria as referenced in the legal litera-ture has caused some confusion. In this connection, the Sea of Straits in the Estonian western archipelago provides a notable example for testing the mean-ing and application of Article 35(a) of the LOSC.

The Sea of Straits comprises internal waters which are wholly included within the Estonian system of straight baselines. It links the Estonian as well as the Finnish and Swedish EEZ in the Baltic Sea proper with the Latvian EEZ in the south-eastern part of the Gulf of Riga. Nevertheless, the domestic law of Estonia does not recognise the right of transit passage of foreign ships and air-craft in the Sea of Straits as well as in parts of its internal waters leading to the Sea of Straits (e.g. in the Gulf of Riga). Neither does the Estonian legal frame-work fully recognise the right of innocent passage in the Sea of Straits. In

effect, Estonia does not consider the Sea of Straits as an international strait subject to Part III of the LOSC. Its compatibility with the international law of the sea is dependent on whether the Sea of Straits meets the criteria of Article 35(a) of the LOSC. This is a narrowly construed exception for the inapplica-bility of the legal regime of transit or non-suspendable innocent passage in a particular strait on the basis of the strait State’s domestic law on its internal waters.

Article 35(a) of the LOSC has been interpreted differently in legal literature, causing misconceptions about its meaning. In this connection, the test to be applied in respect of the Sea of Straits, as with other straits and maritime areas that potentially fall under the scope of Article 35(a) of the LOSC, is whether its waters had been considered as internal waters before the establishment of the straight baselines. In case they had not been considered as such, the right of transit passage would prima facie apply to foreign ships in the Sea of Straits pursuant to Article 35(a) of the LOSC (which would be in practice, however, replaced with the regime of non-suspendable innocent passage under the Mes-sina exception as stipulated in Article 38(1) of the LOSC, see below). In the opposite instance, the regime of internal waters would apply absent of any exceptions under Part III of the LOSC on the legal regime of international straits. This creates a direct link between the domestic law of the strait State on its internal waters and the strait’s legal regime.

Estonia established straight baselines upon regaining its independence. Prior to its annexation in 1940, only normal baselines were used for limiting the 4-mile breadth of the Estonian territorial sea. In addition, the 1938 Waterways Act provided that straits which are used for passage between two parts of the high seas and the coasts of which are both situated in the territory of Estonia are regarded as territorial sea, unless the breadth of the strait exceeds 10 miles. This exception only applied to the Sea of Straits which was declared the territorial sea of Estonia in its entirety. The right of innocent passage was not applicable in this maritime area, with the exceptions of a prior agreement to the contrary or a prior permission by the Estonian authorities granted for such passage. However, since the regime of territorial sea was applicable to the Sea of Straits pursuant to the 1938 Waterways Act and this law did not establish the legal framework of internal waters, it is not of direct relevance in light of the exception as stipulated in Article 35(a) of the LOSC.

Significantly, Estonia had established its internal waters shortly after the passing of the Waterways Act under the 1938 Nordic Neutrality Rules. The 1938 Neutrality Act of Estonia followed the suit of the neutrality acts adopted in the same year by Denmark, Finland, Iceland, Norway and Sweden. These neu-trality acts were adopted on the basis of the Scandinavian rules of neuneu-trality as stipulated in the 1938 Declaration. They primarily regulated matters of the law of the sea for strengthening the coastal State’s maritime security during war.

Estonia’s Neutrality Act was drafted on the basis of the Swedish law. Further-more, as agreed in the November 1938 Riga Protocol between the Baltic States,

the Estonian law served subsequently as the model for the neutrality acts of Latvia and Lithuania.

The Estonian Neutrality Act stipulated analogously to the other Nordic neu-trality acts in its section 2(3) that the Estonian internal waters shall be deemed to include ports, entrances to ports, gulfs and bays, 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. This definition of internal waters was adopted by all Nordic States: Denmark, Finland, Iceland, Sweden, Norway and the three Baltic States. In this context and particularly in light of the Article 35(a)-exception of the LOSC, the problem lies in determin-ing whether the entire maritime area of the Sea of Straits met this definition of internal waters as provided for in the Estonian domestic law. Similarly, this appears to be the determinative factor in establishing also whether e.g. the Finnish Archipelago Sea comprises long-standing internal waters in terms of Article 35(a) of the LOSC.

On the basis of the State practice as well as the relevant archival materials, it is clear that the passages to the Sea of Straits – Hari Strait, Voosi Strait, Soela Strait, Big Strait and Small Strait – in addition to the rest of the maritime area of the Sea of Straits meet the conditions of the above-cited section 2(3) of the 1938 Neutrality Act. Therefore, in terms of Article 35(a), the Sea of Straits should be considered among such internal waters that were already internal waters prior to the establishment of the Estonian straight baselines. As a result, the right of transit passage (and, as a general rule, the Messina exception) does not apply in the Sea of Straits. Although Estonia has established to a limited extent the right of innocent passage under its domestic law to certain categories of vessels in the Sea of Straits, it has no obligation to extend its scope in the Sea of Straits so as to fully meet the definition and criteria of innocent passage under the LOSC.

These findings are contrary to the conclusions of authors, who have analysed the legal regime of the Sea of Straits and claim that the regime of non-suspend-able innocent passage should apply to this maritime area as it is a so-called dead-end strait. This position made by international experts seems to be shared by the United States. However, in drawing their conclusions, they apparently have not taken into account the Latvian EEZ in the Gulf of Riga, the Estonian domestic law on internal waters in terms of Article 35(a) of the LOSC nor the archival materials pertaining to this matter. Without access to such relevant materials, it is not possible to draw accurate conclusions on the legal regime of a strait which falls potentially under the Article 35(a)-exception of the LOSC.

In light of the foregoing, the Sea of Straits comprises non-international straits through which foreign ships and aircraft cannot exercise transit passage.

It was established in this study that in the Baltic Sea proper, such straits that fall under the Article 35(a)-exception of the LOSC in light of the 1938 Nordic Neu-trality Rules may also potentially include the multiple straits in the Åland region of Finland as well as the narrow Kalmarsund between the Swedish mainland coast and Öland Island.

Notably, since the strait State’s domestic law on its internal waters may have a decisive impact on a strait’s legal regime, the corresponding diplomatic pro-tests may likewise have a significant effect as the protesting State may conse-quently retain its particular passage rights in the relevant strait. In particular, the United Kingdom and Germany sent Verbal Notes to the Estonian Ministry of Foreign Affairs in protest against some of the sections of the Waterways Act and the Neutrality Act of 1938, just as they did with other Nordic States that adopted the uniform neutrality acts of 1938. As a result of these protests, the United Kingdom and Germany may potentially not consider the Sea of Straits as comprising entirely long-standing internal waters in terms of Article 35(a) of the LOSC.

Hence, it is not ruled out that the United Kingdom and Germany consider themselves not bound by the exclusion of the right of transit passage and inno-cent passage in the Sea of Straits in case they uphold their protests against those parts of the Estonian domestic law, which serve as the legal basis for the appli-cation of the Article 35(a)-exception of the LOSC to the Sea of Straits. More broadly, this also points to the importance of the protests made by the European Union and the United States against the Canadian and Russian straight baselines in the Northwest Passage and Northern Sea Route which also enclose as internal waters such Arctic straits that may not meet the criteria of the Article 35(a)-exception of the LOSC.

In particular, if the United Kingdom and Germany should uphold their pro-tests against the relevant Estonian domestic legal acts of 1938, their ships might be entitled to the right of non-suspendable innocent passage in the Sea of Straits. This follows from the so-called Messina exception as established in Article 38(1) of the LOSC. It provides that if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through an EEZ of similar conven-ience with respect to navigational and hydrographical characteristics. The Sea of Straits meets the geographical and functional criteria of the Messina excep-tion as stipulated in Article 38(1) of the LOSC.

Likewise, the legal regime of the Sea of Straits may differ for the Russian Federation. However, in this case the principal reason for such a particular regime of passage lies not in the opposition towards a specific domestic law of the strait State but instead in the rejection of Estonia’s State continuity. As a result, the ships of the Russian Federation may potentially have, similarly to the ships of the United Kingdom and Germany, the right of non-suspendable inno-cent passage in the Sea of Straits under the Messina exception. Notably, the concept of State continuity has also had a significant impact on the legal regime of the Estonian Straits in other respects, as explained next.

E. The Significance of Maritime Boundary Delimitation and State