Drawing the territorial waters between Estonia and Finland as if cutting it in half, so not having any exclusive economic zone in between, sounds like a good plan, but in the Gulf of Finland, the right of innocent passage would be immediately replaced by the right of unimpeded transit passage, which is even worse for Estonia and Finland, Alexander Lott, a researcher at the Norwegian Center for the Law of the Sea, explained in an interview with "Välisilm."
Lott explained that the freedoms of the high seas apply in the Exclusive Economic Zone (EEZ), which includes free, unrestricted overflight and navigation, and that it is not possible to detain or seize a ship flying the flag of a foreign nation, unless that is a pirate ship, engaged in the slave trade, or conducting illegal broadcasting on the high seas. It is only possible to board a foreign ship if the captain of the ship agrees or the flag state of the ship has given its consent.
The central question has become whether this (the EEZ) serves the interests of Finland and Estonia.
"Finland, Japan, and other Baltic Sea states (including Denmark, Sweden, and Germany) have demonstrated through decades of experience that this is unquestionably the most secure method for preventing accidental entry of foreign warships and aircraft into the territorial sea of a coastal state. To provide an illustration, Japan's principal aim in demarcating the EEZ was to prevent Soviet warships from encroaching upon its territorial sea," Lott explained.
"I have personally analyzed approximately a dozen of such corridors both in the Baltic Sea and Japan. The overarching goal of the coastal states remains uniform: to prevent the right of unimpeded transit," he continued.
The researcher said that it only seems straightforward and logical that if Finland and Estonia extend their territorial waters by cutting it in half, so to speak, the sovereignty of our countries, the rights and powers to control this sea area will all increase. The reality is different.
"Unfortunately, if we look at the United Nations Convention on the Law of the Sea (UNCLOS), we are faced with a very complex situation, due to the legal framework of the straits," he said.
Innocent passage is a concept in the law of the sea that allows for a vessel to pass through the territorial waters of another state. "This right of innocent passage certainly sounds good; we would see submarines passing through the Gulf of Finland with their flag raised; foreign aircraft and military aircraft would not have the right to pass without the consent of Estonia and Finland; in the case of warships, for example, 48 hours of notice would have to be given to the Estonian Ministry of Foreign Affairs. This all sounds good, but the reality is different. Instead of the right of innocent passage, the right of unimpeded passage would apply," he said.
However, all ships and aircraft also have the right of transit passage in the Straits, which means "the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone," according to the same convention Article 37.
The right of unimpeded passage, or transit passage, applies also in the Gulf of Finland in the part between Estonia and Finland, Lott explained. "Unfortunately, under the maritime border treaties of the 1940s, 1960s and 1980s between Finland and the Soviet Union, Russia continues to have an exclusive economic zone north of Gogland. This is not a large exclusive economic zone, but it is sufficient to subject the Gulf of Finland to the right of unimpeded passage in that part that is a strait, i.e. broadly from Osmussaar to Vaindloo," the researcher said.
So the right of unimpeded passage is essentially the freedom of overflight and freedom of navigation, which applies on the high seas and which also applies today in the EEZ, only that in the case of the right of unimpeded passage it would apply from coast to coast.
"All the way from Helsinki to Tallinn, foreign warships and military aircraft would be able to pass freely through the Gulf of Finland," Lott explained.
"Now the question is, yes: at the moment, all ships are allowed to anchor in the EEZ, among other things. No doubt this is part of the freedom of navigation in the EEZ. But let's put it this way, would the right of unimpeded passage have precluded the kind of anchoring we saw, for example, in the incidents at the beginning of October with undersea cables and pipelines? Unfortunately, not. Because even in the case of unimpeded passage – even though it must be uninterrupted and fast – it is possible to anchor in a seaway, especially in a storm or when lives are at stake," Lott said (pictured below.)
Editor: Merili Nael, Kristina Kersa
Source: "Välisilm", interviewer Tarmo Maiberg