Law of the Sea: Dangerous gray areas

Professor Schatz, since 2019 you have been advising the European Centre of Excellence for Countering Hybrid Threats in Helsinki on legal issues relating to maritime security. How vulnerable is the Baltic Sea region at present?

Very vulnerable, but these are primarily hybrid threats, i.e., malicious acts that are planned and carried out—mostly by states—with malicious intent, below the threshold of armed conflict and often concealing the identity of the key actors. Critical maritime infrastructure, such as the submarine cables between Finland and Estonia, is particularly exposed. However, the so-called shadow fleet, i.e., tankers that transport Russian oil in circumvention of European sanctions, also poses a threat to maritime security. At the same time, we are in a region where Russia also has a strong military presence. The question of how we can guarantee our security within the framework of the rule of law is becoming increasingly urgent.

Time and again, submarine cables are damaged. Is this sabotage?

Often, it is impossible to say for sure. Technically, it is surprisingly easy to destroy cables unintentionally: a ship drags an anchor across the seabed, sometimes for dozens of kilometers, and the thin cables break. Whether this is intentional or not is difficult to prove in individual cases, as a recent court ruling in Finland in the Eagle S case showed, in which the court assumed negligence. The fact that this case went to court at all is also an absolute exception: in the exclusive economic zone, where these incidents typically occur, the coastal states concerned have almost no rights of intervention under international law according to traditional legal opinion.

Why are states not allowed to intervene there?

Because international maritime law prohibits it. Outside the 12-nautical-mile zone, the law of the flag state, i.e., the country under which the ship sails, applies in principle—but not that of the coastal state. An exception is made for activities that have been expressly assigned to the coastal state as regulatory competence, such as fishing or the use of wind energy. Submarine cables are not included, unless they are connected to infrastructure – such as power cables leading to offshore wind farms. So even if a telecommunications cable leading to Germany is damaged in Germany's exclusive economic zone, the coastal state has no right to stop, inspect, and, if necessary, detain the ship without the consent of the flag state.

Not at all?

Preventive emergency measures may be permitted if they are necessary to avert an immediate danger to submarine cables of great importance to the coastal state, which could otherwise lead to serious disadvantages. In such cases, a foreign ship could also be stopped in the exclusive economic zone. However, this purely preventive power does not automatically mean that damage to submarine cables that occurred in the past can be punished if the ships do not voluntarily enter the territorial waters of the coastal state after the incident. The coastal state can then only attempt to obtain the consent of the flag state, persuade the flag state itself to investigate, or seek the extradition of the alleged perpetrators to Germany – as in the case of the sabotage of Nord Stream. This legal situation leads to a huge security gap, and there is currently a debate as to whether the traditional interpretation of the relevant provisions of the Convention on the Law of the Sea is perhaps too restrictive.

What role does the Russian shadow fleet play in maritime security in the Baltic Sea?

A central one. It only exists because the EU has sanctioned Russian oil and gas. As a result, many Russian tankers have changed their flags and now sail under so-called flags of convenience – states that often enforce neither environmental nor safety standards. The ships are often old, poorly maintained, and not insured or not insured according to the usual standards. For coastal states, this means that a damaged shadow fleet tanker off their own coast can cause enormous damage to the environment and tourism, for example – and no one is liable. In addition, the operators of these ships often conceal who actually owns the tankers and their cargo or who operates them. To this end, operators sometimes change flags on a daily basis or deliberately provide false registrations.

Can states prohibit such ships from passing through their territorial waters?

No, at least not in a blanket and discriminatory manner. International maritime law guarantees peaceful passage for all states – including Russian ships. As long as the tankers do nothing but pass through, they are protected. There is repeated talk of banning passage for sanctioned ships. But this is hardly tenable under international law, as the sanctions are unilateral measures taken by individual states or the EU. If passage were to be denied to sanctioned ships on such a basis, this would constitute discrimination without any basis in the Convention on the Law of the Sea. Moreover, China or Russia could invoke the same rights tomorrow. The entire system is based on reciprocity. The situation could be different if individual ships in the shadow fleet posed a concrete and significant threat to the marine environment, for example because they are not seaworthy and an accident is to be expected. However, it is questionable whether this is already the case if the ships are not properly insured, as some argue with regard to the Danish straits.

But there was a case in Germany where a tanker belonging to the shadow fleet was detained. What happened there?

Yes, the Eventin, a ship sailing under the Panamanian flag – with sanctioned oil on board – was wrecked off Rügen. It was then detained by customs and later even placed on the EU sanctions list and confiscated while it was in port. The Greifswald Finance Court then ruled in favor of the owner in summary proceedings. The case is currently before the Federal Finance Court, while the main proceedings are pending before the Finance Court. The case shows how much European states are currently trying to demonstrate their ability to act – even if they are sometimes on thin legal ice.

How could the Baltic Sea be made safer nonetheless?

Three things: First, maritime surveillance and cooperation between the authorities and naval forces of the Baltic Sea littoral states must be further expanded. A positive example of this is NATO's Operation Baltic Sentry, which has led to a decline in damage to submarine cables since its introduction.

Second, it is important that the countries concerned develop a common legal understanding of the scope of their sovereign rights and powers of intervention in the event of hybrid threats. In particular, a more expansive interpretation of the Convention on the Law of the Sea promises greater persuasiveness and enforceability if it is uniformly supported by a larger number of states. At the same time, all actors must be aware that innovative legal interpretations entail legal and diplomatic risks. NATO member states are currently engaged in intensive discussions on this topic.

Third, the states concerned should review their national legal frameworks to determine whether they are making full use of their powers under international law to defend against hybrid threats or whether there are gaps or room for improvement. In many countries, strengthening national criminal and administrative law can further improve the authorities' ability to act.

How realistic is such a reform?

At the international law level, changes to the legal situation are difficult but desirable. In the area of submarine cables in particular, there is a gray area that is more than difficult for us lawyers. There is currently a lot of intense publication on this topic worldwide because there is great political interest in finding an acceptable solution. At the national level, legal and administrative changes are easier to implement if the political will is there. Estonia recently demonstrated this by strengthening the powers of its navy to protect critical maritime infrastructure. It is clear to everyone that the Baltic Sea will only become safer if we act together—technically, politically, and legally.

Thank you very much for talking to us!

Prof. Dr. Valentin Schatz is an assistant professor of public law, European law, and international law with a special focus on environmental and maritime law at Leuphana University Lüneburg. In the context of maritime security, his research focuses on the security-related dimensions of international maritime law, in particular hybrid threats, maritime crime in the areas of the environment and fisheries, and the rights and obligations of flag states and coastal states under international law.

He regularly contributes to legal expert reports for government agencies and international institutions and is one of the few researchers in Germany who analyzes maritime security from an international law perspective.

Valentin Schatz is the author of several publications in the field of maritime security and is active in various academic networks on maritime security.