Nord Stream: Not Just a Pipeline

2.3 Legal Framework
Nord Stream: Not Just a Pipeline 7
According to the 1982 UN Convention on the Law of the Seas
(UNCLOS) Article 79, ‘All States are entitled to lay submarine pipelines
and cables on the continental shelf [of another state].’ The coastal state
may not impede the laying of pipelines per se, but it may take ‘reasonable
measures’ to preserve the environment and its natural resources, and the
delineation of the pipeline ‘is subject to the consent of the coastal State’
(UN 1982). Regarding installations and structures in the Exclusive
Economic Zone (EEZ), such as the planned service platform, UNCLOS
Article 60 gives the coastal state ‘the exclusive right to construct and to
authorise and regulate the construction, operation and use of’ such
installations, as well as ‘exclusive jurisdiction’ over the structure once it
has been built (UN 1982).
In addition to UNCLOS, the Convention on Environmental Impact
Assessment in a Transboundary Context, commonly known as the Espoo
Convention or EIA Convention, sets out an obligation to prepare an
Environmental Impact Assessment (EIA) of any project ‘that is likely to
cause a significant adverse transboundary impact,’ including ‘largediameter
oil and gas pipelines’ (UN 1991: 4, 12). The EIA, which in this
case will be prepared by the Nord Stream consortium, must include
‘possible alternatives to the proposed activity, including a no-action
alternative’ (UN 1991: 5). Sweden, Finland, Denmark and Germany are
so-called Parties of Origin to the Espoo Convention, as the pipeline will
pass through their EEZs. Russia would also have been a Party of Origin,
had it ratified the Espoo Convention. Currently Russia is only a signatory
power but still takes part in the EIA process. Construction permits are
given by Parties of Origin when they have approved that the EIA is
satisfactory. Affected Parties (such as Poland, Estonia, Latvia and Lithuania)
have no legal say in the approval / licensing process, but they may
take part in the EIA process and, hence, voice their opinion in the matter
(DG Internal Policies 2007b: 4; Nord Stream 2008i).
2.4 Recent Developments and Current State of Affairs
In September 2007, following a Finnish request that Nord Stream AG
consider Estonian waters instead of the originally planned stretch through
the Finnish EEZ, Estonia rejected the consortium’s application for a
seabed survey in the Estonian EEZ. Finland wanted an alternative route
because it was assumed that the Estonian seabed would be less rocky than
the Finnish and would thus be better suited for the pipeline. Estonia’s
official explanation for the rejection was that the application itself had
legal contradictions and could therefore not be evaluated in its current
state (Murd, interview). Although Nord Stream AG could have taken the
case through the Estonian legal system, or even resubmitted the application,
the consortium returned to its original plan and is therefore currently
negotiating with the Finnish government regarding the pipeline stretch in
the Gulf of Finland (Nord Stream 2007c; Spiegel 2007c).
As of August 2008, construction of the offshore pipes has yet to start, as
no construction permits have been granted. In accordance with the Espoo
Convention, Nord Stream AG has prepared an EIA, which needs to be