In a terse letter to the Nord Stream Company dated 12 February 2008, the Swedish government declined to consider their application of 21 December 2007 for permission to lay their planned gas pipelines from Russia to Germany on Sweden's continental shelf. Nord Stream was told to come back with a new and much more thorough application.
Apparently, Nord Stream directors have made several mistakes, of which only two can be dealt with here. Firstly, they do not seem to have bothered to study the relevant documents of international law. Thus, as late as 19 July 2007, Nord Stream Director Dirk von Ameln told the main Swedish evening TV news programme Rapport that the seabed pipeline could not be prevented as the right to "innocent passage" is laid down in international law; thus the pipeline "is to be permitted like any ship sailing by". Unless this absurd statement was wilful disinformation, it shows that Mr. von Ameln, even after years of work on the project, had yet to take a look at the United Nations Convention on the Law of the Sea (UNCLOS).
Article 79 of this Convention stipulates that all states are entitled to lay pipelines on the continental shelf "in accordance with the provisions of this article". The first of these provisions states that the coastal state may not impede the laying of pipelines on the part of foreign countries, subject to the right of the coastal state to take reasonable measures for i.e. the prevention and reduction of pollution from the pipeline. A second provision declares that the delineation of the course of the pipeline must be approved by the coastal state, while article 80 gives the coastal state carte blanche to veto any installation (such as the "service platform" which Nord Stream tells us is a vital part of their project).
Thus, the general principle of entitlement to lay pipelines is severely restricted by important exceptions which the Nord Stream Company and their Gazprom majority owner should perhaps have studied much earlier.
A second mistake made by the Gazprom/ Nord Stream people seems to have been their failure to realize that environmental con-cerns are strongly supported in Sweden. This means that pollution risks that may seem insignificant to Russians, and perhaps also to some Germans, carry a considerable weight in a different cultural context such as that of Sweden. This, of course, affects the Swedish interpretation of what constitutes "reason-able measures" to prevent pollution.
In fact, the Baltic Sea is exceptionally sensitive: a very shallow sea of brackish water, with an extremely limited water circulation with the North Sea/Atlantic Ocean. This means that the consequences of the release of any pollutants would be much greater than in other deeper water courses with open access to the oceans such as in the North Sea. The pipelines will be dug into the seabed for parts of the stretch, where the top layers of soft clay contain numerous pollutants such as phosphor and heavy metals, and then there are the tens of thousands of tons of submerged chemical munitions that were dumped by the Russians after World War II.
A prominent expert in aquatic toxicology, Professor Bengt Erik Bengtsson, recently stated that the Baltic seabed project is a "gigantic environmental experiment". From a layman's perspective it nevertheless seems obvious that the whole project will be inherently difficult to carry to conclusion without the emergence of risks deemed unacceptable by the Swedish public, and ultimately, would it seem, also by the Swedish government. Indeed, the International Court of Justice in The Hague would likely, if the case be brought there, interpret UNCLOS firmly in the light of today's raised levels of environmental awareness.
Obviously, the most "reasonable measure" to prevent pollution of the Baltic Sea is to ask the applicant to explore the option of laying their pipelines on land, as Russia and Germany have done thus far. In fact, parallel to the present Yamal 1 pipeline through Belarus and Poland the ground is already prepared for a second pipeline, Yamal 2. Nord Stream has as yet not been able to explain why they prefer the more expensive Baltic seabed route.
Of course, the Poles have not been slow to air their view that the real reason relates to Russian power politics. Moscow wants to be able to put pressure on them by cutting off gas deliveries without them having any means of applying counter-pressure by, for instance, controlling the flow of Russian gas exports to Germany. It seems likely that Estonia, Latvia and Lithuania hold similar views, even though most of their public comments have been quite guarded thus far.
By Krister Wahlbäck