This chapter debates the relationship between maritime industrial projects and hybrid threats. It examines an incident between Russian research vessels and the Estonian Coast Guard in the Estonian eez. The chapter also debates the restrictions that were imposed by Estonia to the laying of the Nord Stream submarine pipelines in the Viro Strait.
12.1 Link between Industrial Projects and Maritime Security
The previously discussed 2007 Vironia incident concerned the Russian Federation’s discriminatory navigational restrictions against an Estonian-flagged commercial ship sailing between the Estonian and Finnish ports. The operator of the ferry line failed to receive a permission for its ship to navigate through the Russian Federation’s territorial sea. The Russian Federation refused to consider the request any further in the aftermath of the so-called Bronze Soldier incident in April 2007 that led to civil unrest among the Russian-speaking minority in Tallinn and widespread cyber-attacks against the Estonian civil and State institutions that were launched from the Russian Federation. Consequently, the ferry line was closed in autumn 2007, at least partly because of the hybrid conflict between the two States in 2007.
At the same time, the Russian Federation was seeking the Estonian government’s positive reply to a request submitted by the Nord Stream consortium to conduct a seabed survey in the Estonian eez in the Viro Strait for the laying of submarine pipelines that by now connect the Russian and German mainland coasts and enable the transportation of Russian natural gas to the EU market. The Estonian government rejected the application in September 2007, because of which the seabed surveys were conducted and the pipelines were laid instead in the Finnish eez in the Viro Strait.1
By April 2012, two 1224-km-long submarine gas transmission pipelines had been laid on the seabed of the Baltic Sea between Vyborg in the Russian
The Nord Stream extension project’s shareholder Gazprom (the Russian Federation) and its financial investors that include Uniper and Wintershall dea (Germany), Shell (the Netherlands/UK), omv (Austria) and the French Engie supported the extension of the Nord Stream project in 2012.3 In June 2021, President Putin announced that the installation of the first pipeline of the Nord Stream 2 had been successfully completed and that it was ready to be used for gas shipments.4 The laying of the second set of pipelines of Nord Stream 2 was completed in September 2021.5
The Nord Stream project has a transboundary impact on the coastal States of the Baltic Sea: Denmark, Germany, Poland, Russia, Lithuania, Latvia, Estonia, Finland, and Sweden. Distinct from the landfall of the initial set of Nord Stream pipelines that is located close to Finland’s land boundary near Vyborg, the extension project’s landfall on the Russian coast is in the western side of the Kurgalsky Peninsula in the southern coast of the Gulf of Finland and borders Estonia. This raises numerous environmental issues, since the Kurgalsky Peninsula is a Ramsar wetland site of international importance as well as a coastal and marine Baltic Sea protected area. However, the Ramsar Convention’s Secretariat established in its 2020 report that the effects of the laying of the Nord Stream pipelines in the Kurgalsky nature reserve does not amount to a significant adverse impact on its environment.6
Based on the example of the Nord Stream project, major energy infrastructure undertakings may also pose a direct security risk for the coastal States
Should Russia attempt to use energy as a weapon or commit further aggressive acts against Ukraine, Germany will take action at the national level and press for effective measures at the European level, including sanctions, to limit Russian export capabilities to Europe in the energy sector, including gas, and/or in other economically relevant sectors. This commitment is designed to ensure that Russia will not misuse any pipeline, including Nord Stream 2, to achieve aggressive political ends by using energy as a weapon.9
Against this background, members of the German Government cautioned the Russian Federation in December 2021 that its invasion of Ukraine would mean that the second set of Nord Stream pipelines would not become operational.10 In the wake of the Russian invasion of Ukraine in February 2022, the German
The laying of the four Nord Stream pipelines in the Baltic Sea enables the Russian Federation to cut off Ukraine from the transit of Russian natural gas to Europe and, consequently, facilitates economic intimidation in potential future conflicts. Chancellor Angela Merkel had announced in 2018 that Germany supports the Nord Stream 2 project on the condition that Ukraine will not be side-lined as a transit country for the transportation of Russian natural gas to Europe.12 Despite this, President Putin issued threats of cutting off Ukrainian transit when he was celebrating the completion of the first pipeline of Nord Stream 2 at the St Petersburg International Economic Forum together with the Austrian chancellor Sebastian Kurz and former chancellor of Germany Gerhard Schröder, now acting as the chairman of the board of Nord Stream ag and the Russian energy company Rosneft.13
The laying of transboundary submarine pipelines raises potential threats also for the Baltic Sea coastal States.14 The Nord Stream extension project’s two additional trans-Baltic pipelines cross the maritime areas of Finland, Sweden, and Denmark and eventually land on the German coast near Greifswald. The course of the Nord Stream pipeline runs along the territorial seas of the Russian Federation, Germany and Denmark15 and the eez-s of Sweden and Finland in addition to the eez-s of the three aforementioned States (see Map 11). Under Article 58(1) of losc, the freedom to lay submarine pipelines in the coastal State’s eez, subject to certain limitations, is granted along with other internationally lawful uses of the sea related to this freedom, e.g., actions associated with the operation of the pipeline. Additionally, the freedom to lay submarine pipelines on a continental shelf is granted under Article 79(1) of losc. As all the Baltic Sea
The route of the Nord Stream 2 pipelines
source: ‘map: the nord stream 2 route’, nord stream 2 ag, 2019, available
12.2 The Significance of the Viro Strait’s eez Corridor for the Nord Stream Project
It was in advantage of the Nord Stream project that due to the narrowness of the Viro Strait, the outer limit of the territorial sea of Finland and Estonia had been established with the aim to never reach closer than 3 nm to the maritime boundary between the two States.17 Thereby the territorial sovereignty of either of the States in that area was excluded and instead a six-mile wide eez corridor was created to maintain free passage. This has a particular importance to the Nord Stream project as otherwise its construction would have been subject to the explicit consent of either of the coastal States and the respective domestic regulations.18 Therefore, free passage in the Gulf of Finland remains
The Viro Strait serves as the primary channel for the export of Russian oil and gas. While oil is shipped mostly by tankers, the flow of Russian gas to the EU is dependent on submarine pipelines that run through the Viro Strait and head via the Finnish, Swedish, and Danish eezs to Germany. In the past two decades, the Russian Federation has invested heavily into its gas and oil export facilities in the Gulf of Finland. The inauguration of the currently second-biggest Russian commercial port Ust-Luga in 2001 and its on-going development complemented with the construction of the Nord Stream pipelines ten years ago and the current laying of the second set of Nord Stream’s twin-pipeline system demonstrate the importance for the Russian Federation’s economy of maintaining stability in the Baltic Sea region.
In 2007 and 2012, Estonia rejected Nord Stream’s application to conduct marine scientific research in its eez in the Viro Strait for the laying of the submarine pipelines.19 This calls for an examination of whether coastal States have the right to decline issuing such authorisations. In the context of marine scientific research, this chapter takes next a closer look at an incident between Estonian and Russian vessels concerning unauthorized seabed surveys in the Estonian maritime area of the Viro Strait.
12.3 Marine Scientific Research in the Context of Seabed Studies on the Pipeline Route
[Seabed studies] must be viewed as an “internationally lawful use” of the sea related to the exercise of high-seas freedoms in the eez, such as
those “associated with submarine cables and pipelines,” as provided for in Article 58(2) losc.20
Accordingly, it is suggested that research in the context of a right to lay pipelines should be distinguished from the general concept of marine scientific research as without the right to conduct seabed studies the freedom to lay pipelines cannot be carried out.
However, traditionally marine scientific research is understood as including all forms of scientific investigations.21 Moreover, it may be subdivided into four categories: physical oceanography, chemical oceanography, marine biology, and, finally, marine geology and geophysics.22 The marine environment studies in relation to the Nord Stream project may be classified as falling mostly under the latter category as they are primarily concerned with sediments and topography of the seabed, including its physical properties.
The former refers to scientific research intended to add to the sum of human knowledge about the world, regardless of its application, whereas the latter refers to research undertaken primarily for specific practical purposes. Marine scientific research in principle covers both kinds of scientific research.23
Thus, applied scientific research includes physical seabed investigations carried out for, inter alia, military or commercial purposes,24 e.g., the laying of submarine pipelines, even when it is conducted without the intent of publishing the results.25 Hence, with due respect to differing views, one may argue
The question whether a coastal State has the right to deny a permit to foreign vessels to conduct marine scientific research in its eez is addressed next. In addition, the matter of a coastal State’s right to refuse to grant permit for conducting marine scientific research in its eez is taken under scrutiny. For this purpose, focus is subsequently shifted to two incidents that occurred, respectively in 2005 and 2007, in the Estonian eez in relation with the Nord Stream project.
12.4 The Incident between the Estonian Coast Guard and Russian Research Vessels in the Viro Strait’s eez Corridor
In 2005, the Russian 65-metre-long research ship Pjotr Kotsov, commonly used for seabed mapping (currently owned by the State corporation for nuclear energy rosatom),26 was found by the Estonian Coast Guard conducting marine scientific research in a maritime area north of Tallinn without Estonia’s prior authorisation.27 The ship neglected the orders given to it by the Coast Guard.28 The crew of the Pjotr Kotsov responded to the Estonian Coast Guard that they are conducting marine scientific research. This was confirmed on site by the Estonian Coast Guard ship and plane.29 The Estonian Coast Guard ordered the Pjotr Kotsov to sail to a near-by anchorage area and wait for the orders following the Estonian procedure in cases of non-compliance with the regulations on marine scientific research. After initially setting the course to the anchorage area, the Pjotr Kotsov soon afterwards changed its course for leaving the Estonian maritime area. The ship’s crew did not comply with the orders issued by the Estonian Coast Guard.30 The Estonian Coast Guard decided not to use coercion for detaining the Pjotr Kotsov and the ship sailed out of the Estonian maritime area.31
In particular, would the legal classification of the incident have been any different if the law enforcement operation against the State-owned ship would have been carried out instead by an Estonian warship (analogously to the practice of numerous other coastal States) that, hypothetically, had required the ship to comply with the orders or face the consequences of non-compliance? The use of coercive maritime enforcement measures or a mere threat of using such coercive measures in a geopolitically sensitive context risks the possibility of an initially planned law enforcement operation to spiral into military activities. That risk is greater where the coastal State’s Navy is exercising maritime law enforcement tasks. This is illustrated by the facts of the Guyana v. Suriname arbitration.
The Tribunal accepts the argument that in international law force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary. However in the circumstances of
the present case, this Tribunal is of the view that the action mounted by Suriname on 3 June 2000 seemed more akin to a threat of military action rather than a mere law enforcement activity. This Tribunal has based this finding primarily on the testimony of witnesses to the incident, in particular the testimony of Messrs Netterville and Barber. Suriname’s action therefore constituted a threat of the use of force in contravention of the Convention, the UN Charter and general international law.34
Mr Edward Netterville, the Rig Supervisor on the C.E. Thornton, described the incident in these terms in his witness statement:
Shortly after midnight on 4 June 2000, while this coring process (drilling for core samples) was underway, gunboats from the Surinamese Navy arrived at our location. The gunboats established radio contact with the C.E. Thornton and its service vessels, and ordered us to “leave the area in 12 hours,” warning that if we did not comply “the consequences will be yours.” The Surinamese Navy repeated this order several times. I understood this to mean that if the C.E. Thornton and its support vessels did not leave the area within twelve hours, the gunboats would be unconstrained to use armed force against the rig and its service vessels.
Mr. Netterville made the following observations on this incident:
In my experience, Suriname’s threat to use force against the C.E. Thornton is unprecedented. I have been employed for over forty years in the marine and oil industry during which time I have served aboard oil rigs throughout the world. I have never experienced, nor heard of, any similar instance in which a rig has been evicted from its worksite by the threat of armed force. Nor, in discussions with others in the industry after June 2000, has anyone told me of a similar incident.
Mr. Graham Barber, who served as Reading & Bates Area Manager for the project and had overall responsibility for its rig and shore-based operations, gave similar testimony. He stated that:
After midnight on 3 June 2000, during the jacking-up process, two gunboats from the Surinamese Navy approached us and shined their
search lights on the rig. A Surinamese naval officer informed us by radio that we “were in Surinamese waters” and that we had 12 hours to leave the area or “face the consequences.” He repeated this phrase, or variations of it, several times. … Faced with these threats from the Surinamese Navy, in the early morning hours of 4 June 2003, I convened a meeting with other persons in authority aboard the C.E. Thornton. We decided that we had no alternative other than to evacuate the rig from the Eagle location. Major J.P. Jones, Commander Staff Support of the lumar (the Suriname Air Force and Navy), recorded this exchange between himself and the drilling platform:
This is the Suriname navy. You are in Suriname waters without authority of the Suriname Government to conduct economic activities here. I order you to stop immediately with these activities and leave the Suriname waters. The answer to this from the platform was: “we are unaware of being in Suriname waters”. I persisted saying that they were in Suriname waters and that they had to leave these waters within 12 hours. And if they would not do so, the consequences would be theirs. They then asked where they should move to. I said that they should retreat to Guyanese waters. He reacted by saying that they needed time to start up their departure. I then allowed them 24 hours to leave the Suriname waters. We then hung around for some time and after about one hour we left for New Nickerie.
Major Jones added:
If the platform had not left our waters voluntarily, I would definitely not have used force. I had no instructions to that effect and anyhow I did not have the suitable weapons to do so. I even had no instructions to board the drilling platform and also I did not consider that.35
The Guyana v. Suriname arbitration shows how important it is for the crew on board the vessel enforcing the coastal State’s laws to be careful in issuing their orders to the ship that is suspected of violating the coastal State’s laws and regulations. Such orders and the consequences that the unlawful activities bring about need to be clearly understandable to the persons against whom the law enforcement operation is directed.
In the case of the Estonian-Russian incident, the Russian officials afterwards confirmed its vessels’ (Pjotr Kotsov and Jakov Smirnitski) research activities on
Under Part xiii of losc, the general right to conduct marine scientific research is provided in Article 238. This right is further confirmed in Article 242(1) of losc which calls in this field for international co-operation for peaceful purposes. Additionally, Article 242(2) of losc provides that States shall offer to other States a reasonable opportunity to obtain information which is necessary to prevent and control damage to the health and safety of persons and marine environment.
However, coastal States have under Article 56(1)(b)(ii) of losc exclusive jurisdiction with regard to marine scientific research in their eez which is subject to specific rules set forth in Article 246 of losc. Thus, Article 246(2) of losc provides the ‘overriding rule’38 according to which marine scientific research in the eez and on the continental shelf is always subject to the consent of the coastal State. Hence, under Part xiii of losc the Russian Federation’s vessels’ marine scientific research activities in 2005, conducted in the Estonian eez, were in breach of the law of the sea as no prior consent from the Estonian authorities was sought. The Russian Federation’s authorities’ contention that the research activities in the Estonian eez were lawful as the vessels were situated outside the territorial sea of Estonia is in that regard not grounded.
12.5 Permit-Based Marine Scientific Research in an eez: Estonia’s Decision to Deny Seabed Surveys
In 2007, the Finnish authorities requested the Nord Stream consortium to conduct surveys on the Estonian side of the Viro Strait for the possible re-routing of the pipeline due to geological and environmental considerations.39 The course of the Nord Stream pipeline in the Finnish eez follows its outermost sections, thus closely bordering Estonia’s eez in the strait. Hence the
The government of Estonia rejected the application in 2007 and made the same decision in 2012 (in respect of the Nord Stream extension project). These decisions were not challenged by the States most interested in the project, i.e. the Russian Federation and Germany. Instead, they received the consent from the government of Finland to use its eez for the pipeline route.40 Nevertheless, the lawfulness of the Estonian government’s decision should be analysed further in light of losc.
Estonia’s rejection of the Nord Stream consortium’s application to conduct seabed surveys in its eez raises the question whether its position was in conformity with Article 246(3) of losc. It stipulates that coastal States shall, in normal circumstances, grant their consent for marine scientific research projects performed by other States in their eez or on their continental shelf and such consent shall not be delayed or denied unreasonably.41 In considering whether normal circumstances apply it has to be determined, inter alia, that the research activities do not relate to the seismic or other explorations, they are in accordance with the losc, for the benefit of mankind and for peaceful purposes, carried out with appropriate scientific methods and means, have due regard for the protection and preservation of the marine environment and do not interfere unjustifiably with other legitimate uses of the sea.42
However, under Article 246(5) of losc coastal States may in their discretion withhold their consent to the conduct of such research projects if the project is related to one of the following actions which are relevant to consider in connection with the Nord Stream project. Notably, the subparagraphs of Article 246(5) of losc have to be interpreted restrictively as they constitute exceptions from the general rule.
Firstly, Article 246(5)(a) of losc provides legal basis for Estonia’s refusal on condition that the Nord Stream project is of direct significance for the exploration and exploitation of natural resources under Estonia’s jurisdiction. According to the official statement of the government of Estonia, “[b]ecause the results of drilling work on the continental shelf will give information about Estonia’s natural resources and their possible use, the Estonian government has the right to reject the research application.”43 The distinction between
Hence the question whether the submarine surveys were of direct significance for the exploration and exploitation of natural resources (either living or non-living) is at the core of the dispute in terms of Article 246(5)(a) of losc. Particularly due to the imprecise formulation of subparagraph (a) arguments in favour of both parties to the dispute may be found. However, the burden of proof lies with the coastal State.46 At first glance the authorities of the coastal State have the discretionary right in interpreting the term direct significance.47 Yet, on the contrary, the coastal State does not possess the right to determine whether a particular scientific research activity falls under the scope of the subparagraphs of 246(5): this determination has to be based on objective facts in accordance with Article 248 and 251 of losc.48 Hence in occasions when the discretion may be exercised it might fall short of legitimacy and thus constitute an abuse of rights in terms of Article 300 of losc.
[T]he results of the research in question must have their own, intrinsic value from the point of view of exploration or exploitation and that it is not enough that the research results are only remotely significant (e.g., research results which can become useful from this point of view when they are combined with other data to be collected).49
Thus, scientific studies which can “reasonably be expected to produce results permitting to locate resources, to assess them, or to monitor their status and
Significantly, under Article 264 and 297(2)(a) of losc disputes concerning the exercise by the coastal State of a right or discretion, including by withholding its consent to the conduct of a marine scientific research project, are not subject to compulsory dispute settlement. However, it has been voiced that the Russian Federation could have used under Article 297(2)(b) of losc its right to challenge the Estonian authorities’ refusal in 2007 to grant the permit to conduct hydrographic surveys in its eez.51 Yet although in essence State parties to the losc are permitted under Annex V, Section 2 to the losc to refer such disputes to compulsory conciliation, the authoritative award of the conciliation is legally non-binding.
Secondly, Article 246(5)(b) of losc provides, inter alia, the right of refusal if the project involves the introduction of harmful substances into the marine environment. However, unlike the environmental impact of the laying of the pipeline in the Baltic Sea and its operational mode, the seabed survey does not involve introducing harmful substances into the marine environment.
Thirdly, under Article 246(5)(c) of losc coastal States may withhold their consent if the project involves the construction of artificial installations and structures. However, no ad hoc artificial installations or structures were involved in the Nord Stream’s research activities.
Finally, a State’s refusal to grant permit for conducting subsea surveys in its eez would be grounded under Article 246(5)(d) of losc if the project would have been inaccurately documented in the information dossier presented. Yet, purportedly the documents provided to the Estonian government were accurate.
To conclude, whereas in 2005 the Russian Federation’s vessels conducted marine scientific research in the Estonian eez in clear violation of Article 246(2) of losc, the lawfulness of the Estonian authorities’ rejection of the Nord Stream consortium’s application to conduct scientific research in its eez in 2007 and 2012 is subject to different interpretations in light of part xiii of losc. The latter may be regarded as a consequence of the imprecise formulation of Article 246(5)(a) of losc.
A Raun, ‘Paet tõi uuringust keeldumiseks kolm põhjendust’, Postimees (20 September 2007).
European Parliament, ‘At a glance: The Nord Stream 2 pipeline project’, 2016, available
Nord Stream 2, ‘Shareholder & Financial Investors’, available
A Rettman, ‘Russia threatens to cut Ukraine gas over Donbas war’, euobserver (7 June 2021).
Nord Stream, ‘Last Nord Stream 2 Pipe Has Been Welded in the Baltic Sea’, Press Release (6 September 2021).
helcom, ‘166, Kurgalsky Peninsula’, available
J Niinistö, ‘Itämeren geostrateginen merkitys kasvussa’, Centrum Balticum (2 March 2017).
H Foy, N Astrasheuskaya, ‘Why Nord Stream 2 is at heart of US warnings to Putin over Ukraine’, Financial Times (9 December 2021).
Joint Statement of the United States and Germany on Support for Ukraine, European Energy Security, and our Climate Goals, 21 July 2021, 2, available
Anonymous, ’Nord Stream 2: German minister warns Russia over Ukraine’, Deutsche Welle (18 December 2021).
G Traufetter, ‘Bundesregierung stoppt umstrittene Gaspipeline Nord Stream 2’, Der Spiegel (22 February 2022).
T Buck, R Olearchyk, ‘Merkel warns Nord Stream 2 must protect Ukraine role’, Financial Times (10 April 2018).
Rettman, op. cit.
See, e.g., Savolainen, Gill et al., op. cit., 17–18.
Nord Stream had to by-pass the disputed area close to Polish border. Thus, Denmark offered the use of its territorial sea. See S Vinogradov, ‘Challenges of Nord Stream: Streamlining International Legal Frameworks and Regimes for Submarine Pipelines’ (2009) 52 German Yearbook of International Law, 286. The Nord Stream 2 pipelines do not cross the Danish territorial sea. In 2019, Denmark allowed the Nord Stream consortium to use a 147-km-long route in its eez south-east of Bornholm Island. See Nord Stream 2, ‘Approved Danish Route Stretches South-East of Bornholm’, Press Release (2019).
Oude Elferink 1994, op. cit., 169.
Vinogradov, op. cit., 276.
The Estonian Government Office, ‘Valitsus otsustas kabinetinõupidamisel mitte rahuldada Nord Stream AG taotlust mereuuringuteks Eesti majandusvööndis’, Press Release (6 December 2012).
Vinogradov, op. cit., 284.
AHA Soons, Marine Scietific Research and the Law of the Sea (Kluwer, Deventer, 1982), 121–124. The travaux préparatoires of the 1982 losc indicate that States either did not include in its proposals for the definition of ‘marine scientific research’ any indication of the nature of the research or excluded merely activities aimed directly at the exploitation of marine resources which are not designed to increase man’s knowledge and not conducted for peaceful purposes.
Ibid., 6.
Ibid.
Except resource exploration as it is governed by a different legal regime.
Soons, op. cit., 7. In that context it is noteworthy that the Nord Stream consortium published the results of the research activities which were included in the project’s transboundary environmental impact assessment.
A Staalesen, ‘A major oil exploration is going on in Russia’s East Arctic waters’, The Barents Observer (24 August 2021).
P Paleri, Coast Guards of the World and Emerging Maritime Threats (Ocean Policy Studies, Tokyo, 2009), 165.
R Kagge, T Sildam, ‘Vene laev tabati Eesti vetest uurimistöölt’, Postimees (11 November 2005).
Anonymous, ‘Vene uurimislaev Pjotr Kotsov eiras Eesti piirivalve korraldusi’, Eesti Päevaleht (10 November 2005).
Ibid.
Ibid.
Annex vii Arbitral Tribunal, Guyana v. Suriname Award, op. cit., paras. 150–151.
Ibid., para 488.
Ibid., para 445.
Ibid., paras. 433–437.
T Sildam, ‘Venemaa tunnistas Eesti majandusvetes uurimist’, Postimees (28 November 2005).
Paleri, op. cit., 185.
T Stephens, DR Rothwell, ‘Marine Scientific Research’, in Rothwell, Oude Elferink, Scott, Stephens (eds.), op. cit., 567.
T Koivurova, I Pölönen, Transboundary Environmental Impact Assessment in the Case of the Baltic Sea Gas Pipeline (2009) 52 German Yearbook of International Law, 313.
Vinogradov, op. cit., 261.
See also Eritrea v Yemen (Phase i), op. cit., para 407.
See M Gorina-Ysern, An International Regime for Marine Scientific Research (Transnational Publishers, Ardsley, 2004), 315.
Vinogradov, op. cit., 261.
Soons, op. cit., 171. The term exploration is undefined in the losc but generally it is understood as including “data collecting activities concerning natural resources conducted specifically in view of the exploitation (i.e., economic utilization) of those natural resources.”
Ibid.
Soons, op. cit., 170.
Art. 246(5) of losc: “Coastal States may however in their discretion withhold their consent …” (emphasis added).
Soons, op. cit., 170.
Ibid., 171.
Ibid.
Vinogradov, op. cit., 283–285.