A. The Pipeline and the Company

The Nord Stream is a prime example of how pipelines can have significant transboundary implications. The submarine pipelines originate in the Vyborg area in Russia, then pass through the EEZs of Finland and Sweden before entering not only the EEZ but also the territorial waters of Denmark before finally landing in Lubmin, near Greifswald, in Germany. Despite initial plans for an intermediate compressor station in the Swedish EEZ, the final design allows the pipelines to operate without such an installation.Footnote ¹³

The project comprises two parallel gas pipelines that have the combined capacity to transport 55 bcm of natural gas from Russia to Germany annually. The first pipeline started operating in November 2011, the second in October 2012.

The pipelines are owned and operated by Nord Stream AG, an international joint venture established for the planning, construction and operation of the pipelines. The ownership of the company is divided between Russian OAO Gazprom (51 per cent), German companies BASF SE/Wintershall Holding GmbH and E.ON Ruhrgas AG (15.5 per cent each), the Dutch gas infrastructure company N.V. Nederlandse Gasunie and the French energy company GDF SUEZ S.A. (9 per cent each).Footnote ¹⁴

Nord Stream AG was incorporated in 2005 and is based in Zug, Switzerland, where the control centre from which the pipelines are monitored and operated is situated. It follows from this, in line with the reasoning of the International Court of Justice (ICJ) in the Barcelona Traction Case Footnote ¹⁵ that Nord Stream AG is to be regarded as a national of Switzerland and subject to Swiss jurisdiction in accordance with the nationality principle.Footnote ¹⁶ It also enables Switzerland to exercise diplomatic protection with respect to the company.Footnote ¹⁷ Although establishing the nationality of a company for the purpose of diplomatic protection is not an entirely straightforward operation there should be little doubt that incorporation, headquarters and technical operation centre in Switzerland suffices to establish a requisite connection.Footnote ¹⁸

It may be noted that Switzerland became a party to UNCLOS in May 2009, just a few months before Denmark, Finland and Sweden decided on Nord Stream AG's permit applications regarding routes on their respective CS. UNCLOS was thus, by a close margin, applicable and any discussion on whether relevant provisions of the Convention would be applicable as customary law became superfluous. That all concerned States were Parties to UNCLOS also precluded application of the 1958 Convention on the Continental Shelf since UNCLOS prevails, as between States Parties, over the 1958 Geneva Conventions on the Law of the Sea.Footnote ¹⁹

B. The Pipeline in Context

The Nord Stream project is fundamentally about connecting Western European consumers with Russian natural gas fields. This is reflected in the inclusion of the Nord Stream project on the European Union (EU) list of Trans-European Energy Network Guidelines (TEN-E) and its designation as a ‘project of European interest’.Footnote ²⁰

It has been questioned whether a pipeline project with Nord Stream's capacity can indeed be motivated purely by the need for physical distribution capacity.Footnote ²¹ This is not the place for a discussion on the economic and political rational of the project.Footnote ²² With respect to the particular offshore route chosen one must, however, consider that the existing land-based gas pipelines connecting Russia with Western European gas markets have been affected by repeated controversies between Russia and transit States.Footnote ²³ Nord Stream AG itself has held that:

Even more frankly, Nord Stream AG has later asserted that the Nord Stream pipeline system and its planned extension offer a natural gas connection ‘free from non-technical risks and free of interference of a commercial or non-commercial nature by third parties’.Footnote ²⁵

A main attraction with a sea-based solution is hence that it largely avoids the jurisdiction that may be exercised by transit States. Maintaining an excess capacity in the regional distribution system may also strengthen the hands of natural gas exporters vis-à-vis transit States.Footnote ²⁶

The project has had strong backing by the German and Russian Governments while being viewed much less favourably by several States affected either by the physical presence of the pipelines or by the change in control over gas distribution which the project entails.Footnote ²⁷ The explanatory value of this economic and political context should not be disregarded when studying the application of relevant provisions of international law by the States concerned. But it obviously does not relieve States from the obligation to comply with applicable international agreements in good faith.Footnote ²⁸

The Nord Stream project stands out from most other international submarine pipeline projects by not being governed by any agreement between the States concerned, including the so-called sending and receiving (Russia and Germany) States.Footnote ²⁹ Accordingly, there is no specific regulation of, inter alia, the operation of the pipeline, the settlement of any disputes that may arise, or specifying how jurisdiction is to be exercised beyond the territorial seas. Instead pertinent multilateral agreements and general international law apply.Footnote ³⁰

A. The High Seas

In the Baltic Sea, as in eg the North Sea and the Black Sea, there are no high seas. The EEZ and the CS are therefore the jurisdictional zones of foremost interest. But since the right to lay submarine pipelines in these zones is historically and functionally linked to the rules governing the high seas a brief look at some core legal features of that latter area is called for initially.

According to UNCLOS the so-called freedom of the high seas comprises, inter alia, the freedom to lay submarine pipelines and cables.Footnote ³¹ More specifically this means that beyond the CS all States are entitled to lay submarine cables and pipelines on the bed of the high seas.Footnote ³² This freedom also applies on the CS when this stretches under the high seas but it is then subject to rules on the CS in UNCLOS Part VI.Footnote ³³ Part VII of UNCLOS on the high seas contains rules on breaking or injury of submarine cables or pipelines,Footnote ³⁴ and on indemnity for loss incurred in avoiding injury to a submarine cable or pipeline.Footnote ³⁵ These provisions are also applicable in the EEZ in so far as they are not incompatible with specific rules governing that zone.Footnote ³⁶

B. The Exclusive Economic Zone

Turning now to the EEZ, defined as an area beyond and adjacent to the territorial sea,Footnote ³⁷ it must initially be noted that it is subject to the specific legal regime established in Part V of UNCLOS. The EEZ, which may stretch a maximum of 200 nautical miles from the baseline,Footnote ³⁸ has to be claimed by the coastal State. All the coastal States affected by the laying of the Nord Stream pipelines have claimed an EEZ.

In the EEZ the coastal State enjoys sovereign rights for the purpose of exploring and exploiting, conserving and managing the living as well as non-living natural resources. This applies to the waters superjacent to the seabed as well as to the seabed and its subsoil. The coastal State also has sovereign rights with regard to other activities for the economic exploitation and exploration of the zone.Footnote ³⁹ Furthermore, and of particular significance for the present analysis, the coastal State has jurisdiction, as provided for in relevant provisions of UNCLOS, with regard to the protection and preservation of the marine environment; marine scientific research; and the establishment and use of artificial islands, installations and structures.Footnote ⁴⁰ Pipelines are not, however, installations or structures in this regard.Footnote ⁴¹ They are instead subject to a distinct regulatory regime.

In the EEZ all States, and indirectly their citizens,Footnote ⁴² enjoy, with some exceptions and subject to UNCLOS, the freedom of the high seas. With respect to the EEZ this freedom comprises, inter alia, freedom of navigation and overflight and of the laying of submarine cables and pipelines, but also other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines. The activities carried out under this freedom must be compatible with other relevant provisions of UNCLOS.Footnote ⁴³

C. The Continental Shelf

Pipelines are normally laid on the seabed, which, at least within 200 nautical miles from the baseline,Footnote ⁴⁴ forms part of the CS.Footnote ⁴⁵ Unlike the EEZ the CS does not have to be claimed but exists ipso facto and ab initio.Footnote ⁴⁶ Since the CS extends seawards from the territorial sea the bottom of the EEZ will also by definition be the CS of the coastal State.Footnote ⁴⁷ Without affecting the legal status of the superjacent waters, the coastal State exercises sovereign rights over the CS for the purpose of exploring it and exploiting its natural resources.Footnote ⁴⁸

According to UNCLOS, Article 79(1), all States are entitled to lay submarine cables and pipelines on the CS. Subject to its right to take reasonable measures for the exploration of the CS, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines, the coastal State may not impede the laying or maintenance of such cables or pipelines.Footnote ⁴⁹

This is in fact an expanded version of Article 4 of the 1958 Convention on the Continental Shelf.Footnote ⁵⁰ Under that article a coastal State ‘may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf’. However, the article also provides for a right to take ‘reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources’. Compared to the 1958 Convention UNCLOS Article 79 more clearly affirms that there is a right for all States to lay submarine pipelines. It also adds an additional ground for ‘reasonable measures’ taken by the coastal State, namely ‘prevention, reduction and control of pollution from pipelines’. Most significant, however, is the addition of a requirement for consent by the coastal State regarding the delineation of submarine pipelines in Article 79(3). It holds that ‘[t]he delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State’.

D. The Exclusive Economic Zone and the Continental Shelf

As has been seen above, the laying of pipelines is regulated through the legal regimes for both the EEZ and the CS. What then is the effect of these areas in effect overlapping? The relationship between the legal regimes for the CS and that for the EEZ has been subject to extensive discussion.Footnote ⁵¹ Since the regime for the CS predates that of the EEZ—which was fully recognized only by the adoption of UNCLOS in 1982—it has been argued that the latter would absorb the former.Footnote ⁵² It has also, however, been eloquently argued that the better view is that the two regimes exist in parallel.Footnote ⁵³ If they are to be regarded as distinct they are undoubtedly inextricably linked.Footnote ⁵⁴ When addressing practical issues of jurisdiction relating to the seabed regard must be had to the totality of the two regimes, but also to the specific provisions that balance or establish a hierarchy with respect to certain activities. Importantly, UNCLOS Article 56, in the part on the EEZ, stipulates that the coastal State's rights to exercise jurisdiction in relation, inter alia, to the protection and preservation of the marine environment shall, with respect to the seabed and subsoil, be exercised in accordance with Part VI, ie the specific regime for the CS.

A. WHAT RIGHT?

UNCLOS does not apply a consistent terminology when defining the right to lay submarine pipelines.Footnote ⁵⁵ Article 87(1), in Part VII on the high seas, refers only to the ‘freedom to lay’ submarine cables and pipelines. With respect to the EEZ Article 58(1) talks of the ‘laying of submarine cables and pipelines’ but also of other internationally lawful uses of the sea such as those associated with ‘the operation of … submarine cables and pipelines’. Article 79(2), in Part VI on the continental shelf, posits that coastal States ‘may not impede the laying or maintenance’ of such cables or pipelines.

The main difference in how the rights of States other than the coastal State are defined in relation to pipelines is that the right in the EEZ includes uses of the sea associated with ‘operation’ of pipelines while the CS regime prevents the coastal State from impeding ‘maintenance’. Although it is not clear why different language has been chosen for the two articles, there seems to be little if any substantive difference as to what activities are included in the right to lay pipelines. Uses associated with operation necessarily include maintenance since that is a prerequisite for operation over any significant period of time.Footnote ⁵⁶ On the other hand, laying and maintenance presupposes operation since those other activities are otherwise void of meaning.Footnote ⁵⁷ But how are activities that predate the actual laying of a pipeline, notably surveys of the seabed, to be viewed?

B. Seabed Surveys

The laying of pipelines is preceded by surveys of the seabed. The main purpose of such surveys is to identify a suitable pipeline route. Such a route will, inter alia, minimize the risk for harm to the future pipeline, and indirectly harm to the environment and human activities in the vicinity of the pipeline, and avoid conflicts with other uses of the seabed.Footnote ⁵⁸ This inevitably raises the question of how surveys of the seabed in preparation of the laying of pipelines relate to the right to lay and operate pipelines?

This issue has gained particular relevance in relation to the Nord Stream project. In September 2007 Estonia rejected an application by Nord Stream AG to carry out a seabed survey, including drilling in the seabed in the Estonian EEZ. The Estonian Government justified its rejection with the fact that the results of drilling work would provide information about Estonia's natural resources and their possible utilization. The decision was not challenged either by the company or by any State.Footnote ⁵⁹

In August 2012 Nord Stream AG once more applied for a permit to carry out a survey in the Estonian EEZ, this time prompted by plans to add additional lines to the existing pipelines. Permit was again denied, this time citing the Estonian Economic Zone Act, which stipulates that

The reference to ‘research’ implies that the Estonian decision is premised on seabed surveys carried out in order to assess the preconditions for the laying of pipelines constituting marine scientific research in the terminology of UNCLOS. The legal regimes for marine scientific research and for the laying and operation of pipelines would thus be functionally overlapping. Since surveys of the seabed are integral to the laying of pipelines virtually all submarine pipeline projects would include an element of marine scientific research.Footnote ⁶¹ This contention necessitates a closer look at the rules on marine scientific research in the EEZ and the CS.

C. Marine Scientific Research

As a general rule all States have a right to conduct marine scientific research, but it is subject to the rights and duties of other States as provided for in UNCLOS.Footnote ⁶² In the EEZ and on the CS marine scientific research requires the consent of the coastal State.Footnote ⁶³ In normal circumstances coastal States are to grant their consent for marine scientific research projects by other States or competent international organizations in their EEZ or CS. This presupposes that the research be carried out in accordance with UNCLOS, exclusively for peaceful purposes, and in order to increase scientific knowledge of the marine environment for the benefit of all mankind.Footnote ⁶⁴ However, in certain circumstances it is within the coastal State's discretion to withhold consent. Of relevance to the present analysis is that such discretion applies, according to UNCLOS Article 246(5), when a marine scientific research project

1. (a) is of direct significance for the exploration and exploitation of natural resources, whether living or non-living; [or]

2. (b) involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment.

Any seabed survey which either involves drilling or the use of explosives, or which may generate data of direct significance for the exploration and exploitation of natural resources is thus subject to the coastal State's discretion. Whether such a de facto subjection of the pipeline regime to that for marine scientific research can have been intended begs the question.

For this subjection to occur it must be assumed that seabed surveys aimed at the laying of pipelines do in fact constitute marine scientific research. That is not a foregone conclusion. UNCLOS does not provide any definition of ‘marine scientific research’ and there is uncertainty as to exactly what activities fall within Part XIII regulating such research.Footnote ⁶⁵ Related notions such as scientific research, exploration, and exploitation also lack a definition in UNCLOS.Footnote ⁶⁶ As for seabed surveys they are not mentioned at all in UNCLOS and have also received very limited attention in the legal literature.Footnote ⁶⁷

Several definitions of marine scientific research were discussed during the negotiations of UNCLOS but none met with sufficient support.Footnote ⁶⁸ The need for a definition was also challenged by the view that the substantive provisions of the Convention establish the intended meaning sufficiently.Footnote ⁶⁹ Recourse thus needs to be had to the relevant substantive provisions. It is clear from UNCLOS Article 244(1) that knowledge resulting from marine scientific research, as well as the objectives of major proposed research programmes, shall be made available by publication and dissemination through appropriate channels. Furthermore, coastal States shall grant their consent, in normal circumstances, for marine scientific research projects to be carried out on their CS in order to increase scientific knowledge of the marine environment for the benefit of all mankind.Footnote ⁷⁰ These provisions point in the direction of marine scientific research, at least in the EEZ, being characterized by a free flow of results and the contribution to a shared body of scientific knowledge. Seabed surveys have a very different purpose since they are carried out in order to facilitate, or even enable, a specific technical, often commercial, activity. In this sense they resemble exploration of the CS. However, neither surveys nor the actual laying of submarine pipelines typically involves the exploitation of natural resources.Footnote ⁷¹ This argues against seabed surveys aimed at the laying of pipelines being marine scientific research.

A perhaps more persuasive argument against subsuming these kinds of seabed surveys under the notion of marine scientific research is that it would seriously tilt the balance between coastal States and other States as established by UNCLOS Article 79. As has been seeen above, the consent of the coastal State concerned is not required for the laying of submarine pipelines as such, only for the delineation of the route. Were the seabed surveys necessarily preceding the laying of such pipelines to be considered marine scientific research as defined in UNCLOS Article 246(5) that would be tantamount to subjecting the laying of pipelines to the coastal State's discretion. Such an interpretation is hardly compatible with the delicate balance between the interests of coastal States and other States which Parts V and VI of UNCLOS aim to uphold.Footnote ⁷² It would also de facto obviate the explicit distinction in Article 79 between the laying of submarine pipelines, which is a right pertaining to all States, and the delineation of the course of such pipelines, which is subject to the consent of the coastal State. If the necessary seabed surveys were typically subject to coastal State consent as marine scientific research under Article 246(5) a coastal State would be free to use this competence to prevent the laying of pipelines.Footnote ⁷³ And such an act by a coastal State could not be successfully contested since the granting of consent for such marine scientific research projects is explicitly at the discretion of the coastal State. It follows from the general rule of interpretation laid down in the Vienna Convention on the Law of Treaties that treaties should be construed in such a way that a reason and a meaning can be attributed to every part of the text.Footnote ⁷⁴ This militates against an interpretation which in fact makes the distinction between UNCLOS Article 79(2) and (3) void.

If seabed surveys in preparation of the laying of pipelines were nonetheless to be regarded as marine scientific research, the only way to temper this disruptive expansion of coastal State jurisdiction would be if such surveys were generally to fall outside the conditions of Article 246(5), thus not making the granting of consent subject to full coastal State discretion. However, such a line of reasoning would hardly rectify the problem since it would likely open a Pandora's Box of opposing readings of ‘direct significance for the exploration and exploitation of natural resources’ and contested claims as to the aims and methods of planned surveys, not to mention the uses to which generated data may be put.

As shown by Lagoni, there are nonetheless several examples of States imposing a permit requirement that seems to cover seabed surveys aimed at establishing the preconditions for laying submarine pipelines.Footnote ⁷⁵ But there is often little evidence of how these domestic laws, some of which were promulgated before UNCLOS was adopted, are applied in practice. It can therefore not be generally concluded that the States concerned apply the law in a manner that would seem to be inconsistent with UNCLOS, or that a consistent State practice has been established.Footnote ⁷⁶

D. The Specific Case of Drilling

However, when it comes to drilling on the CS UNCLOS Article 81 is crucial. It grants the coastal State the exclusive right to authorize and regulate drilling on the CS ‘for all purposes’. The explicit reference to all purposes, together with the fact that this provision occurs in Part VI on the CS, makes it untenable to hold that drilling related to preparatory work for the laying of pipelines would be excluded from this exclusive right of the coastal State.

E. Concluding Remarks on Seabed Surveys

In light of the above, it may be concluded that Estonia's rejection of Nord Stream AG's application for carrying out a seabed survey was justified to the extent that it was based on the planned survey involving drilling in the seabed. It should also be clear that surveys of the seabed for the purpose of charting the route of a submarine pipeline ought not to be considered marine scientific research and be subject to coastal State consent on that ground. The carrying out of such surveys should rather be seen as an integral part of the laying of submarine pipelines,Footnote ⁷⁷ or, alternatively, as an internationally lawful use of the sea associated with the operation of submarine pipelines, as provided for by UNCLOS, Article 58(1).Footnote ⁷⁸ However this may not be taken as a carte blanche for engaging in any kind of activity under the label of seabed surveying. Activities that are not typically necessary for the routing of submarine pipelines and which a coastal State may reasonably consider detrimental to its legitimate interests in the EEZ and the CS should not be seen as intrinsic to the right to lay submarine pipelines.

A. Reasonable Measures

The fact that no clear guidance as to what is to be considered reasonable is provided in UNCLOS has been criticized.Footnote ⁸⁵ However, it can be concluded that there is a broad and relatively open-ended competence vested with the coastal State. There are no prima facie restrictions on what kind of measure a coastal State may employ in exercising this right as long as they are reasonable.Footnote ⁸⁶ However, any action must aim to protect one or more of the listed objectives. This means that it is impermissible to impose restrictions on the laying or operation of submarine pipelines for other reasons, such as security or energy policy considerations.Footnote ⁸⁷ It may also be noted that emission of greenhouse gases into the atmosphere is not covered by the definition of ‘pollution’ in UNCLOS.Footnote ⁸⁸ It would hence not be permissible to restrict the laying of an oil or gas pipeline due to the climate effects of fossil fuels.

In principle, it is also not for coastal States to question the need for, or the usefulness of, a pipeline.Footnote ⁸⁹ This may in some cases make it tempting to disguise eg security concerns in environmental or natural resources language.Footnote ⁹⁰ It is questionable whether that is compatible with a good faith application of UNCLOS. However, such ulterior motives may have a more positive flip side by prompting a more thorough assessment of the environmental consequences of a proposed pipeline and the available means by which they may be attenuated.

Obviously, for such an assessment to have a positive effect any measures that it prompts must not be unwarranted or unreasonably far-reaching in which case they may add unjustifiable time and cost to the execution of a project, or possibly make it untenable altogether. That could very well spur legal action at both national and international level.

Overall the extent of a coastal State's legitimate interests with respect to the exploration and exploitation of the CS may be relatively easier to define compared to its environmental interests.Footnote ⁹¹ The latter are often affected by scientific uncertainties and must also incorporate considerations of other States’ rights with respect to the marine environment as a transboundary resource. According to UNCLOS Article 194(2) States are under a general obligation to take ‘all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’. Accordingly coastal States have a responsibility to consider the environmental consequences of pipelines even when their laying and operation occurs outside their sovereign control but where they still exercise jurisdiction and thus (some level of) control. There are also more specific obligations imposed upon coastal States in this regard both by UNCLOS and numerous regional conventions.Footnote ⁹² It must be concluded that coastal States are obliged to take necessary measures, within their competence under UNCLOS Article 79, to guarantee that pipelines do not cause harm to the marine environment beyond what is tolerated under applicable international law.Footnote ⁹³

With respect to the Nord Stream project the Finnish and Swedish governments found that the project could be carried out in an environmentally acceptable manner. Before coming to this conclusion, however, there had been modifications of the proposed route. A number of conditions were also set out, including, in the Finnish decision, an obligation to take all possible measures to prevent and minimize damage.Footnote ⁹⁴

However, the right of coastal States to take measures is not directly related to international law obligations. Although some guidance as to what is reasonable may be gained from studying international agreements or customary law obligations the coastal State is not limited to implementing such standards.

So how should the reasonableness of measures be determined? In this situation recourse must be had to considerations of the balance between potentially competing interests. It seems safe to conclude that a measure that does not duly consider the legitimate interests of other States should not be considered reasonable, provided that it can in fact impede the exercise of those legitimate rights.Footnote ⁹⁵ Unfortunately this does not provide much clarity since the definition of reasonable then becomes contingent on the construction of various rights of other States, many of which can only be defined in relation to an opposing right of the coastal State. This makes the definition somewhat circular. However, this is not a problem particular to the issue of pipelines but rather characteristic of substantial parts of UNCLOS, based as they are on the objective of upholding a reasonable and functional balance between the interests of different categories of States.

In light of this balance it is not feasible to establish a general order of priority between the right of the coastal State to exercise control over the laying of pipelines on the CS and the right of other States to lay and operate them.Footnote ⁹⁶ To weigh up conflicting interests in the abstract is generally also not possible since the solution depends on the pertinent circumstances in each case.Footnote ⁹⁷ In relation to this inescapable balancing of interests in the individual case, consultations between the States concerned may be a key instrument.Footnote ⁹⁸ In this regard the carrying out of the transboundary EIA for the Nord Stream project can serve as a good example.Footnote ⁹⁹

Despite the necessity for considering specific circumstances it should be possible to draw some conclusions of more general applicability. Stipulating security measures or technical standards that would in effect make the laying of a pipeline economically or technically unviable in the particular case is not precluded by UNCLOS, Article 79. The prohibition on impeding the laying of pipelines is subject to the coastal State's right to take reasonable measures. It should thus only be the reasonableness of the measures that determines if they are permissible, provided that they aim to protect one of the listed interests. The assessment of reasonableness must be carried out in good faith.Footnote ¹⁰⁰ Arguably, this should lead to a comparison with how the coastal State has acted with regard to activities associated with similar risks. Even if good faith does not as such imply an obligation to treat all similar cases alike it should enable a State's substantive obligation to be interpreted in the light of its previous activities in a rather broad manner, particularly when, as here, there is a need for reconciling potentially conflicting rights.Footnote ¹⁰¹ Case law seems to support the view that good faith can prevent States from opposing activities by other States similar to those which they themselves have previously allowed or engaged in.Footnote ¹⁰²

If, therefore, a State takes a permissive attitude towards risks to the marine environment which it is in a position to control that are greater or equal to those associated with the laying and operation of a pipeline, that could be used to question the good faith of the State in taking restrictive measures against the pipeline. An illustrative example would be if a State, in its capacity as a coastal State or port State, accepts significant risks associated with ship transports of oil or other noxious substances although it falls within its competence to demand higher safety. If a significantly more restrictive approach is taken to risks associated with pipelines—particularly those transporting gas rather than oil, which would in itself imply a lower risk of environmental damageFootnote ¹⁰³—it may cast doubt on the State's good faith with respect to the imposition of environmental requirements to pipelines. However, when making such an assessment regard must be had to other factors that may prompt the coastal State to take a more restrictive approach to one particular risk than to another. This comparison of risk management should also not be taken too far since States are not under any general ‘equal treatment’ obligation.

If a measure is found to be too restrictive to pass the reasonableness test it is conceivable that the customary law principle of necessity could be used to preclude the wrongfulness of that measure. The applicability of the concept of necessity to environmental perils has been confirmed by the ICJ.Footnote ¹⁰⁴ But in order to be successful such a claim would have to meet quite demanding standards. According to the ILC's Articles on State Responsibility,Footnote ¹⁰⁵ necessity presupposes not only a ‘grave and imminent peril’ but also that the act relying on necessity ‘does not seriously impair an essential interest of the State or States towards which the obligation exists.’Footnote ¹⁰⁶ Also in this context it is hence necessary to assess the significance of the interests affected.Footnote ¹⁰⁷ However, in practice it would normally not be necessary to consider the gravity of the interest of other States since the laying of a pipeline is unlikely to give rise to a grave and imminent peril that cannot be brought to acceptable levels by any lawful means.

B. Delineation

The consent requirement for the delineation of submarine pipelines was introduced to the third Law of the Sea Conference by a 1973 proposal by China.Footnote ¹⁰⁸ The ILC, on the basis of whose draft Article 4 of the Convention on the Continental Shelf was based, had already in 1956 made clear that a coastal State may impose conditions concerning the route to be followed in order to avoid unjustified interference with the exploitation of the natural resources of the seabed and subsoil.Footnote ¹⁰⁹

In relation to the Nord Stream project the issue has been raised whether a coastal State may require an entity wishing to place a pipeline on its CS to assess routes beyond the coastal State's EEZ and CS, and also whether such a State may, based on the availability of preferable, or perhaps merely unexploited, routing options beyond areas under its jurisdiction effectively prevent the laying of the pipeline on its own CS.Footnote ¹¹⁰ The potential impact of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context, or other rules on transboundary EIA that may apply in a specific case is not addressed here.Footnote ¹¹¹ What is at issue is whether UNCLOS enables the coastal State to deny use of its CS based on the existence of (potentially) preferable routes elsewhere? The general answer to that question must be ‘no’. It should be obvious that a coastal State lacks the competence to consent—with any meaningful legal effect—to a pipeline routing beyond its own jurisdiction. Unless the right to consent to the route should be seen as a discretionary right to consent to the construction of the pipeline as such—and why this is not an acceptable interpretation has been discussed above—a general denial based on UNCLOS, Article 79(2) to use any route on the CS must be seen as an unjustifiable interference with the right to lay submarine pipelines on the CS. Otherwise, rejecting all proposed routes would be an easy way for a coastal State to obviate the right to lay pipelines.Footnote ¹¹²

If a coastal State considers the laying of a pipeline on its CS problematic irrespective of the route, UNCLOS provides the capacity to take reasonable measures to protect its interests, provided that they pertain to exploitation of the CS, extraction of its national resources, or the protection of the environment. Other interests are not recognized by UNCLOS even though they may de facto influence a coastal State's view on a proposed routing. As concluded above, coastal States are not in principle prevented from imposing conditions that make a pipeline project technically impracticable or financially unviable but they can do so only if the conditions are reasonable and pursue a legitimate aim. However, since reasonableness is contingent upon the weighing of opposing interests the existence of alternative options could affect the assessment of what constitute reasonable measures by a coastal State. If the prospective layer of a pipeline has neglected to explore reasonably available alternatives to a route that is considered undesirable by an affected coastal State that should make it harder to find conditions imposed by the coastal State unreasonable. If, on the other hand, a particular route has been shown to be the only practicable option a measure that severely hampers, or in effect precludes, the use of that route would, in order to be reasonable, have to be based on legitimate concerns of some gravity.