Sometimes, when bad things happen, it makes sense to pause and draw breath.
There is now good evidence that damage to the Balticconnector gas pipeline and two undersea communications cables on October 7 was man-made. That represents an outrageous attack on the three Baltic Sea nations affected.
According to Swedish, Finnish, and Estonian authorities, the suspect is the NewNew Polar Bear, a Chinese-owned, Hong Kong-flagged 16,000-ton container ship with close links to Russia. The vessel has since refused to answer repeated attempts to make contact and establish the course of events. A Russian nuclear-powered cargo ship, the 38,000-ton Sevmorput, was also close to the attack scene at the time.
Finnish authorities stated that they had observed the gas pipeline scene: “A 1.5 to 4 meter-wide dragging trail is seen to lead to the point of damage in the gas pipeline. In the distance, a few meters from the gas pipeline damage point, there was an anchor which is believed to have caused the wide dragging trail and the damage itself.” They noted that one of the ship’s anchors was missing when it reached port soon afterward.
If the Chinese ship proves to be the culprit, the three countries whose infrastructure she sabotaged will have to respond. One proposal already making the rounds proposes that the Baltic Sea countries should close the ocean.
That’s not just a dangerous idea, it’s unworkable.
“In the near future, if we see incidents of this nature, NATO should, in my understanding, simply effectively close the Baltic Sea for shipping. You can do that. Ships can be stopped,” President Edgars Rinkēvičs of Latvia said in October, in response to the news that NewNew Polar Bear might be the perpetrator of the threefold sabotage.
That’s because this merchant vessel isn’t just any container ship. The fact that she recently switched her flag from Cyprus to Hong Kong and was bought by a Chinese owner doesn’t necessarily mean she was on a nefarious mission. But the fact that she spent the weeks between early July and early October conducting a pioneering roundtrip journey across Russia’s Northern Sea Route, in cooperation with Rosatom — the Russian government agency that operates the Northern Sea Route’s icebreakers — strongly suggests that her owners cooperate closely with the Russian government.
If NewNew Polar Bear turns out to be the culprit and it’s established that she is connected to the Russian state, Rinkēvičs and others argue NATO should act: “Of course, it’s a question of a whole series of maritime rights, but if it’s clearly proven to be Russia, the . . . discussion has to be that to protect our critical infrastructure, there needs to be a conversation about how we can close the Baltic Sea,” he said.
It’s good that Rinkēvičs is trying to think creatively about how to prevent future sabotage of pipelines and undersea cables, but there is a profound issue of maritime rights at stake.
The United Nations Convention on the Law of the Sea (UNCLOS), which governs the world’s seas and oceans, divides water traffic into different categories. The term innocent passage represents a ship’s right “to freely navigate through territorial seas”, which is up to 12 nautical miles adjacent to another country’s coast.
But it really must be an innocent passage, which UNCLOS defines as “navigation through the territorial sea for the purpose of:
(a) traversing that sea without entering internal waters calling at a roadstead or port facility outside internal waters; or
(b) proceeding to or from internal waters or a call at such roadstead or port facility.”
Ships conducting innocent passage can stop and anchor in case of distress, but they must always obey the laws of the country whose waters they traverse. Countries’ exclusive economic zones (EEZs), which extend 200 nautical miles beyond the territorial waters, give foreign-flagged vessels far more rights. While a country has the exclusive rights to natural resources within its EEZ — and the exclusive rights to off-shore installations there — it doesn’t have legal powers over it beyond the policing of those resources and installations.
The Balticconnector and the two undersea cables were tampered with in the Estonian, Finnish, and Swedish EEZs, respectively. If this had occurred in their territorial waters (up to 12 miles), they might be able to place some restrictions on foreign vessels passing through their waters, but blocking the waters to, say, all Russian vessels would most certainly be denounced by the Kremlin as a violation of UNCLOS, and Russia (and possibly China) could then retaliate.
But there’s another question: what is a Russian vessel, or a Chinese vessel, or indeed what is the true nationality of any ship? It used to be that merchant vessels sailed under the flag of the country in which their owner was based. Then, during Prohibition, US passenger ships wishing to serve alcohol began sailing under the flag of Panama, and soon other shipping companies also discovered that sailing under Panama’s flag was convenient because it allowed them to skirt their home country’s rules.
Today Liberia, Panama, the Marshall Islands, and Hong Kong top the global chart in flag registrations. Innumerable ships sail under these countries’ flags or any other flag of their choosing. The companies often have a complicated ownership structure (as is the case with NewNew Polar Bear’s owner) and share responsibility for a ship with management companies. And these days, several hundred ships — mostly those transporting cargo to and from Russia — belong to the “dark fleet”, which operates outside international maritime rules. All of which would make it extremely hard to define the “Russian ships” to be blocked from the Baltic Sea.
Of course, it’s frustrating to know that merchant vessels linked to Russia may be causing harm in other countries’ EEZs and that these countries can’t do much about it. But violating international law and regulations is hardly the answer if Western countries are to fight Russia’s international lawlessness.
And given how hard it is to define a ship’s nationality, the opportunity to block Russian ships will at any rate not present itself. Watching suspect ships in the Baltic Sea and elsewhere (and hopefully catching them red-handed) would be far more useful and practicable than blocking them.
Elisabeth Braw is a senior associate fellow at the European Leadership Network and a columnist for Foreign Policy.
Europe’s Edge is CEPA’s online journal covering critical topics on the foreign policy docket across Europe and North America. All opinions are those of the author and do not necessarily represent the position or views of the institutions they represent or the Center for European Policy Analysis.
