31 Oct Nord Stream Explosions as a Breach of the Peace
[Agata Kleczkowska is an Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences in Warsaw, Poland.]
On 26 September two underwater explosions caused a total of four leaks in the pipelines Nord Stream and Nord Stream 2, two each in Denmark’s and Sweden’s exclusive economic zones (EEZs). According to these States, the ‘magnitude of explosions measured 2.3 and 2.1. on the Richter Scale respectively, probably corresponding to an explosive load of several hundred kilos.’ The international community immediately recognized that these explosions were triggered deliberately. The most frequently repeated word to address the blasts was ‘sabotage’; States also labelled it as an ‘attack’, a ‘hostile attack’ and a ‘terrorist attack’. NATO issued a statement in which it called the damage to the Nord Stream 1 and Nord Stream 2 pipelines as ‘a result of deliberate, reckless, and irresponsible acts of sabotage’ and assured that ‘[w]e, as Allies, have committed to prepare for, deter and defend against the coercive use of energy and other hybrid tactics by state and non-state actors. Any deliberate attack against Allies’ critical infrastructure would be met with a united and determined response.’
In many ways, the Nord Stream blasts amount to a perfect example of hybrid warfare – they were conducted in an environment that significantly hampers objective investigation; it may turn out that it is impossible to unanimously point out the responsible actor; and despite the seriousness of the incident, it is difficult to indicate what fundamental norms of international law were breached.
This entry examines the explosions from the perspective of international peace and security. To this end, following an analysis of issues relating to jus ad bellum and EEZs, it concludes that the blasts amounted to a breach of the peace.
Is the Prohibition of the Use of Force Applicable?
There is no doubt that blasts ‘corresponding to an explosive load of several hundred kilos’ are of considerable gravity. In the past States have recognized actions involving far less force as an armed attack that entitled them to the right to self-defense (see e.g., the USA’s intervention in Panama in 1989; or the case of the Mayaguez vessel in 1975). However, the question remains whether the magnitude of the blast in and of itself is enough to qualify it as the use of force?
Article 2 (4) of the UN Charter states as follows:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
The clause ‘in their international relations’ means that the prohibition of the use of force covers only situations that take place in relations between States (p. 163, 169). In this instance many States, as well as experts, point out that Russia most likely stands behind the blasts (see BBC, Reuters etc.). However, even if the investigation proves this to be the case, the object of an attack was not another State or its emanation, but twin pipelines. Their builder, owner and operator is the company Nord Stream AG, which has five shareholders: Gazprom international projects LLC (PJSC Gazprom subsidiary); Wintershall Dea AG; PEG Infrastruktur AG (E.ON); N.V. Nederlandse Gasunie; and ENGIE. Among them, Gazprom has 51% of the shares in Nord Stream AG. On the other hand, Gazprom is controlled by the Russian government, which has the majority of shares of Gazprom, through the Federal Agency for State Property Management, Rosneftegaz and Rosgazifikatsiya. Given this capital structure, if Nord Stream AG is to be assimilated with any State, that state would be Russia. Consequently, should the initial accusations prove true, it would mean that Russia attacked a Russian object, hence no inter-State relations are involved, which renders the prohibition of the use of force inapplicable to this case.
The Blasts Took Place in an EEZ – Does That Matter?
As mentioned, the blasts occurred in Denmark’s and Sweden’s EEZs. Under Article 56 of the UNCLOS the sovereign rights of the coastal State are quite restricted in an EEZ, which also includes control over foreign military activities. Despite coastal States’ concerns, the current legal framework, in general, does not explicitly prohibit military operations in an EEZ (p. 221). In particular, during the Third United Nations Conference on the Law of the Sea, the USA delegation stated that:
Military operations, exercises and activities have always been regarded as internationally lawful uses of the sea. The right to conduct such activities will continue to be enjoyed by all States in the exclusive economic zone. This is the import of article 58 of the Convention. Moreover, Parts XII and XIII of the Convention have no bearing on such activities. (p. 244)
This however does not mean that UNCLOS does not impose any requirements on States with regard to possible military activities in an EEZ. Firstly, a few provisions of the Convention highlight the obligation of the ‘peaceful’ use of seas and oceans (e.g. preamble, Article 88). This refers also to an EEZ (see Article 58 (2) in conjunction with Article 88). However, ‘peaceful’ does not always mean ‘non-military’, as for instance ‘military maneuvers and exercises have traditionally been considered compatible with the freedom of the high seas.’ (p. 27)
Secondly, according to Article 301 of the UNCLOS,
In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.
Thus, no matter whether a contested activity took place in territorial waters or an EEZ, States are still obliged to respect the prohibition of the use of force.
Finally, on the grounds of Articles 56 and 58 of the UNCLOS, maritime and coastal States must ‘mutually respect each other’s rights and duties in the EEZ’ (p. 27) according to the standard of ‘due regard’ (which however is not defined in the Convention).
Summing up, although there is no prohibition against military activities in an EEZ, States need to bear in mind that any actions they undertake must have a peaceful character and comply with the prohibition of the threat or use of force, with due regard to coastal States’ rights. Thus if the blasts of the Nord Stream pipelines were caused deliberately as a result of sabotage, they can undoubtedly be labelled as being of a military character, but certainly not peaceful.
Breach of the Peace?
Under Article 39 of the UN Charter, if the UN Security Council (UN SC) establishes that there is a ‘threat to the peace’, ‘breach of the peace’ or ‘an act of aggression’, it may apply measures from Chapter VII. ‘Threat to the peace’ is the broadest and the most oft-used concept from Article 39. Theoretically, the UN SC may determine a threat to the peace based on any kind of conduct by States. In practice, this term covers a broad range of situations, such as armed conflicts; an influx of refugees; violation of a peace agreement; serious violations of human rights; illicit trafficking of weapons; the introduction of a certain political regime in a State; discrimination against the economic interests of foreigners in contravention of international standards; closure of ports for foreign vessels; etc. At the same time, ‘breach of the peace’ includes all situations when a threat to the peace has materialized. The most typical example of ‘breach of the peace’ is hostilities between armed units of two States (p. 1293). However, this term is broad enough to also cover other situations; thus, the fact that the prohibition of the use of force was not breached does not mean that a ‘breach of the peace’ did not occur. Summing up, ‘breach of the peace’ represents a situation more serious than a mere threat, but not aggravated to the extent described in the Definition of Aggression.
Given this vast span of situations which can be categorized as a threat to the peace, from the theoretical point of view there are no obstacles to also include under this notion the explosions of the gas pipelines. But not only that – the blasts also constituted a serious infringement of the peace. That refers not only to energy and environmental security but particularly to the peace understood as a lack of armed hostilities between States. One can come up with a few arguments why the blasts should be qualified as a breach of the peace:
First of all, no one can have doubts that the blasts were linked with the armed conflict waged in Ukraine. Interestingly, Mykhailo Podolyak, an adviser to the Ukrainian president, was probably the only State official to call the explosions ‘an act of aggression’.
Secondly, the fact that the explosions occurred underwater hampers conducting a rapid investigation and unequivocally pointing out the actor responsible for the explosions. Even though Russia seems to be the most likely and obvious perpetrator, until an objective examination adduces proof of Russia’s involvement no further actions, including legal, political and military ones, can be undertaken. It may also happen that the international community will never find out what caused the explosions. Disorientation in terms of the responsible actor(s), as well as lack of the possibility to undertake necessary measures to deter further blasts and preserve existing infrastructure, only reinforce the existing tensions between States.
Thirdly, the magnitude of the blasts and the underwater environment prompt justifiable speculation not only that the pipelines will remain inoperative for a long time, but also that it is impossible to say today if the Nord Stream can ever be repaired. According to Gazprom, a big section of the pipelines might need to be replaced, which will take around a year. These preliminary conclusions only highlight the scale of material damage inflicted as a result of the blasts.
Fourthly, the blasts that deliberately caused the explosions of the gas pipelines constitute a dangerous precedent – one that may drive similar incidents in the future in order to intimidate the international community and hamper and infringe multilateral cooperation.
Finally, the previous section demonstrated that the norms concerning the peaceful use of an EEZ were breached beyond any doubt.
Given these characteristics, there can be little doubt that the Nord Stream explosions amount to a breach of peace.
Despite the many vaguenesses concerning the Nord Stream blasts, both from the technical and legal standpoint the concept of a breach of the peace makes it possible to not only to categorize the blasts within the existing legal framework, but most importantly includes them in the collective security system. The major problem that remains however is the effectiveness of this system, especially since one of its main pillars remains mum.
The author is grateful to Martin Faix and Ondřej Svaček from the Centre for International Humanitarian and Operational Law of the Palacký University in Olomouc for their advice and support.