Nord Stream 2, the natural gas pipeline from Russia to Germany across the bed of the Baltic Sea, has been the subject of controversy and heated discussion for years – and it still is. However, the continued discussion makes it seem like the realization of the project still is a debate. It is not.
The construction is already well underway with 3 km of pipe being laid per day somewhere in the deep waters of the Finnish Gulf, but as late as early September, the Swedish radio channel Sverige Radio reported that all parties in the Swedish parliament support an EU intervention preventing the construction of Nord Stream 2. Also, Danish politicians have recently expressed their hope for EU involvement.
Seemingly, the politicians disregard the fact that the EU has tried to intervene, but found that it could not. Why, then, frame the discussion as if the EU could suddenly come to the rescue – is it not time to wake up and acknowledge that Nord Stream 2 is happening whether you like it or not?
No way around the UNCLOS
The United Nations’ Convention on Law of the Sea (UNCLOS) says that states are free to set the rules inside their own territorial waters, which reaches from the shore to 12 nautical miles out. However, states don’t have the same rights in their exclusive economic zone (EEZ), which is the territory reaching from the end of territorial waters and 200 nautical miles out. States own the resources found in the EEZ, but regarding projects such as Nord Stream 2, the convention’s article 58 declares that all states have the freedom to lay submarine cables and/or pipelines within the EEZ.
Nord Stream 2 is to pass through the EEZ of Finland and Sweden, but not their territorial waters, meaning that the states were forced to approve the project if otherwise compatible with other provisions of the UNCLOS (something that Nord Stream AG made sure), no matter their political reservations.
The application to Denmark stands out, because it included a permission to lay the pipeline through Danish territorial waters along the path of Nord Stream 1. This means that Denmark technically had the power to dismiss the application, but the Danish law regarding its territorial waters did not provide any grounds for not allowing constructions such as Nord Stream 2. Realizing this, the Danish government quickly changed the law enabling Denmark to decline applications to certain pipelines retrospectively due to security and defense concerns.
Countering the Danish, Nord Stream AG applied for an alternative route circumventing Danish territorial waters, leaving Denmark in a situation identical to that of Finland and Sweden. With two applications on its table, one of which Denmark cannot dismiss, there is no way around it. Denmark has to choose.
The cavalry is not coming
All attempts by outsiders to stop the project have failed. Heeding the, amongst others, Danish and Swedish cries for help, the EU has continually sought to interfere somehow. Back in 2016, the EU tried to process the construction under the Commission’s Gas Directive, only to discover that it cannot be applied to the pipeline as it is running from outside the EU and in. Moreover, overshadowing the continued criticism and various innovative proposals, the EU Commission concluded that in accordance to the UNCLOS, Nord Stream AG has the right to lay the pipeline and the EU cannot adopt legislation that may trump already ratified conventions of the UN. In turn, the EU has no definitive say vis-a-vis Nord Stream 2. Why, then, are the Swedish and Danish politicians still looking towards the EU for help?
The repeated threats by the US of sanctioning companies which are financially involved in Nord Stream 2 could have proven a potential show stopper. Yet according to German officials, the US has backed down and delivered assurances that the pipeline will be excluded from any sanctions. The US officials probably deemed a direct attack on European energy companies too radical, especially amidst the current transatlantic tensions.
Prepare for the inevitable
We should stop the needless discussions about whether the pipeline is a good or bad idea.
Instead, we should look at how to best prepare ourselves for the coming change in Europe’s energy imports and discuss the project’s implications for European energy diversity and what Russia as a main supplier means.
We should furthermore decide if we want to close the legislative loophole in the EU, allowing energy projects such as Nord Stream 2 to circumvent any EU involvement, and look for other such loopholes in the current legislation to ensure that the EU can get a say if it so desires.
Lastly, the Danish government should stop desperately waiting for something to prevent the realization of Nord Stream 2, because it is simply not going to happen. Instead, the government should decide which of the two routes is best, considering the environment, fisheries, and sea traffic in the areas.
By Anders Bjørn Larsen and Iben Funch Døj
Disclaimer: The content of this article is the sole responsibility of the author and any opinions expressed therein do not necessarily represent the official position of the Youth Atlantic Treaty Association Denmark
Photo: Spirit of Europe Nord Stream Sign Tallinn (Public domain)