The Hong Kong-flagged ship suspected of damaging the Balticconnector, as well as the Estonian-Finnish and Estonian-Swedish communication cables, was sailing in Finland's Exclusive Economic Zone (EEZ), not its territorial waters. In Estonia, the necessity of the creation of the EEZ between Estonia and Finland in 1993 is now questioned.
"During the investigation, we received information that the ship had left St. Petersburg, so we tried to contact the ship voluntarily in order to clarify the case. Unfortunately, attempts to contact the ship and its captain did not yield the desired results and since the vessel was operating in Finnish economic waters, it is not legally possible to detain it," Risto Lohi, head of the Finnish investigation team, said.
The president of Latvia, Edgars Rinkēvičs, had earlier suggested that the Baltic Sea be closed to Russian ships if it turned out that Russia was behind it.
"We must be capable of dealing with the challenges of hybrid warfare," he said. "If we discover that a country is involved in destroying essential infrastructure, we must discuss it at NATO level, and we could seriously consider blocking the Baltic Sea to Russian ships, if Russia is found guilty."
Closing the entire Baltic Sea to Russian ships is not as simple as that. In the Gulf of Finland it could be much easier if the territorial waters of Estonia and Finland were to extend exactly to the central line of the Gulf of Finland, which in principle was already agreed in 1996. In such a case, Finland's central criminal police, with the support of border guards or naval vessels, would have been able to deal with a potential offender, in accordance with all legal provisions.
There would still be a problem with closing traffic to Russian ships, as international maritime law states that if there is no international space between the territorial waters of two countries, both countries must allow the passage of third country ships. However, it could be possible to make an exceptions for Russia as aggressor state.
This debate remains hypothetical, as Estonia and Finland voluntarily created an international area between their territorial waters. This happened in 1993, when both countries moved their maritime borders three nautical miles closer to the shore. This created a six nautical mile wide Exclusive Economic Zone (EEZ) in the middle of the Gulf of Finland, where essentially the same rules apply as on the high seas.
It is difficult to know in retrospect which country took the initiative to move the border. It is usually said that Finland was the main party interested in creating an exclusive economic zone, while it has also been claimed that the idea of a border shift was the brainchild of the then Estonian President Lennart Meri. Also, Estonia's foreign minister at the time, Trivimi Velliste, referred to international practice, according to which it is simply not possible to establish a 12 nautical mile territorial sea in the Gulf of Finland.
The result is a situation where the central passage in the Gulf of Finland is subject to international offshore rules for navigation, cable and pipeline laying, overflights and much more.
Neither the Estonian nor the Finnish sources make it clear what benefits either country actually hoped to gain from the voluntary reduction of its maritime areas. Of course, at that time, neither Estonia nor Finland could have foreseen the potential dangers of creating an exclusive economic zone.
However, what happened with Balticconnector is not the first time that the problematic nature of the situation has become apparent. The problems were first highlighted in both Estonia and Finland in 2005, when Russia and Germany started to build the now defunct Nord Stream 1 gas pipeline.
Several Estonian public figures, including former Prime Minister Juhan Parts and member of the Riigikogu Igor Gräzin, drew attention to the dangers of the international maritime area in the middle of the Gulf of Finland. These threats were best summed up by legal scholar Heiki Lindpere, who said that even foreign warships can anchor peacefully in the EEZ.
A foreign ship must pass through territorial waters without stopping and submarines must have with their flag hoisted.
In Finnish society, the unusually narrow territorial zone has not generated the same controversy as in Estonia, and the controversy has remained mainly an internal affair of the academic community, where it has remained quite marginal. It is probably only now, in the context of the Balticconnector case, that the debate on territorial waters is starting in earnest.
Editor: Merili Nael, Kristina Kersa