iNTERNATIONAL COURT OF JUSTICE
PASSAGE THROUGH THE GREAT BELT
(FINLANv.DENMARK)
COUNTER-MEMORIAL
SUBMITTED BY
THE GOVERNMENT OF THE
KINGDOM OF DENMARK
VOLUME 1
MAY 1992 VOLUME1
TABLE OF CONTENTS
Page
INTRODUCTION ........................... 3
PART 1 . THE FACTS .......................... 11
THE GEOGRAPHYOF DENMARK
CHAPTER1 .
AND THE DANISH STRAITS ..... 13
CHAPTER II . THE DANISH PLANSFOR A FIXED
LINK ACROSSTHE GREAT BELT . 16
A. The Early Plans ....................... 16
1. Introduction.......................... 16
2.The Proposals made in the 1930s ........... 16
B. The PreparatoryWork 1948 . 1972 ......... 17
I.The Great Belt Bridge Commission ......... 17
2.The 1961Act ......................... 19
3.The Working Committee ................. 20
4 .The Technical Committee ................ 22
C. The Initial Project..................... 23
I.The 1973Act on the Constmctionof
a Bridge acrossthe Great Belt ............. 23
2.Siatshroen Store Bcelt................... 24
3.The Circular Note of 12May 1977 ......... 26
4 .The Progress of the Initial Projec.......... 28 Page
5 .Debates in the Danish Parliament on
the Great Belt Project1977 . 1978 .......... 29
D. The Postponement ..................... 31
I.The Decision to Postpone
the Project .......................... 31
2. Reactions from other States............... 32
3. Debates in the Danish Parliament
on the Great Belt Project 1978.1985
and New Investigations ................. : . 33
E. The Present Project .................... 37
1. The 1986Political Agreement ............. 37
2. The 1987Act ......................... 37
3 The Conceptual Design Work ............. 38
4. The Final Overall Design ................ 40
5. The Construction ...................... 42
F. Conclusion .......................... 46
CHAPTER III . THE SOCIO-ECONOMIC
IMPORTANCEOF THE GREAT
BELT PROJECT ................ 51
A . NationalConsiderations ................. 51
B . International Consideration............... 59
CHAPTER IV . THE PASSAGE OF SHIPS
THROUGH THE GREAT BELT
AFTER CONSTRUCTIONOF
THE EAST BRIDGE ............. 63
A . The Clearance of the East Bridge ........... 63 B. The Effect of the East Bridge on the
Passage of ExistingVessels ............... 67
C. The Effects of the East Bridge on the
Passage of Future Vessels................ 70
CHAPTER V. THE PASSAGE OF DRILL SHIPS,
DRlLLING PLATFORMS, AND
CRANE VESSELS THROUGH THE
DANISH STRAITS AFTER THE
CONSTRUCTION OF THE EAST
BRIDGE ..................... 79
A. Introduction.......................... 79
B. Mobile Offshore Drilling Units............ 83
C. The Transport of Mobile Offshore
Drilling Unit.......................... 88
CHAPTER VI. THE SOUND IS A FEASIBLE ROUTE
FOR THE PASSAGE OF OFFSHORE
UNITS ....................... 93
Introduction.......................... 93
Geography ..................... .. ... 94
Hydrography, Weather, Navigational
Conditions, and Ship Positioning Systems
in the Sound ......................... 95
Underkeel Clearance in the Sound .......... 99
Pilotage Services and Existing Ship
Traffic in the Sound ................... 102
Transport of Offshore Units through
the Sound ......................... 104
Transport of Rauma-Repoku' M ODUS
through the Sound .................... 112
The Fixed Link across the Sound .......... 120 Page
CHAPTERVII. MODIFICATIONOF SEMI-
SUBMERSIBLEAND JACK-UP
DRILLING UNITS ............. 123
A. Introduction........................ 123
B. Removal of Thmsters .................. 127
C. Removal of the Top Part of
theDrilling Demck ................... 130
D. Reduction of the Leg Length
of a Jack-Up Rig..................... 134
E. MODU Building Yards Located
behind FixedBridges or other
Permanent HeightConstraints............ 137
CHAPTER VIII. THE PASSAGEOF CRANE VESSELS
THROUGHTHE GREAT BELT AND
THE SOUND ................. 140
CHAPTERIX. THE EFFECTOF THE GREAT BELT
PROJECT ONTHE BUILDINGOF
OFFSHOREUNITS IN FINLAND
AND ON OFFSHOREOIL AND GAS
ACTIVITIESIN THE BALTIC SEA 146
A. Effects on the Buildingof
Offshore Units....................... 146
B. The Effects onOffshoreOil
and Gas Activitie.................... 151
CHAPTERX. THE GREAT BELT PROJECTAND
OTHER BRIDGESAND TUNNELS
IN THE WORLD .............. 153
A. The Similarity between theGreat Belt
Bridge and other Bridgesacross
lntemational Strait................... 153 B. Various Types of International
Watenvays ......................... 156
C . Bridges across InternationalStraits......... 157
1. The Bridges across the Little Belt ......... 157
2 . The Bridges across the Bosphoms
Strait ......................... 158
3 . The Proposed Bridge acrossthe
Strait of Messina ..................... 159
D . Bridges across Canals open to
International Ship Traffic ............... 161
1.The Bridges across the Kiel Canal ......... 161
2 .The Bridges across the Panama Canal ....... 162
E . Bridges across Entrancesto
Major Ports Served by International
Shipping and across Waterways Used
for International Navigation .............. 164
I. Bridges across Entrancesto Major
Ports Served by International Shipping ...... 164
2. Bridges across Waterways Used for
International Navigation ................ 165
F. The Tendency in Bridge Constmction ....... 166
G . Tunnels under International Straits
and Watenvays ...................... 168
1. The Tunnel under the Strait of Dover ....... 168
2. The Tunnel under the Strait of Tsugam ..... 171
3. Plans for Constmction of a Tunnel
under the River Westerschelde ............ 172 CHAPTER XI . HISTORY OF THE DISPUTE .....
A . The Silence of Finland .................
B . Consultations between the Parties
prior to the Court'srder of
29 July 1991 ........................
C . Negotiations between Finland and
Denmark subsequent to the Court's
Order of 29 July 1991 .................
PART II .THE LAW .........................
CHAPTER 1. DANISH SOVEREIGNTY
CHAPTER II . LEGAL CONSIDERATIONSPRIOR
TO THE PRESENT DISPUTE .....
CHAPTER III . SHIPS IN INTERNATIONAL LAW
A. MODUSCompared to Ships ...........
B. Drilling Platfoms ...................
C. Ships with Special Characteristi.......
..............
D . Applicable Conventions
E. Future Ships ......................
CHAPTER IV. CURRENT LEGAL
CONSIDERATIONS ............
A . Treaty Law and Customary International
Law .........................
1. The 1857Treaties for the Redemption
of the Sound Dues .................... 2. The 1958Geneva Convention on the
Territorial Sea and the Contiguous Zone ..... 232
3. The Invocation of Part III of the
1982 United Nations Convention on the
Law of the Sea ...................... 238
4. Has New Customary International
Law Developed? ..................... 242
B . Equitable Principles ................... 248
1 The Pnnciple of Good Faith ............. 248
2. The Principle of Equity ................. 258
C . Summary of LegalArguments ............ 262
PART III . SUBMISSIONS ....................... 267
List of Maps
List of Figures
List of Annexes
viiVOLUME 1VOLUME 1 INTRODUCTION
1. The present Counter-Memorial is submitted in
pursuance of the Court's Order dated 29 July 1991,fixing inter alia
the time limit of 1 June 1992for the submission by the Kingdom of
Denmark of its wntten pleading in the present case.
2. Following the pnnciple, according to which the Parties
should endeavour to address those issues which continue to divide
them, the Government of Denmark wishes at the outset to express
its concurrence with the Finnish point of view expressed in the
Memonal (para. 7, p. 5) that there is no dispute as to the
jurisdiction of the Court in the present case.
3. Nor do the Parties appear to be divided with regard to
the fact that the Danish straits are international straits govemed by
a long history, certain specific treaty provisions and customaryrules
of intemational law resulting in a nght of innocent passage through
these straits. In this sense the actual dispute is narrowed down to
the question of determining the exact scope of this right of innocent
passage seen in relation to the sovereign rights of the Kingdom of
Denmark, the territory of which is separated inter alia by the
stretch of territorial sea named the Great Belt.
, 4. Within these parameters the dispute may further be
narrowed down to a conflict between a right of innocent passage
and the sovereign right of Denmark to build a bridge across the
Great Belt thereby uniting the main parts of the realm of the
Kingdom of Denmark. The dispute may also be seen as a conflict
concerning the scope of the principle of innocent passage and the
concrete application of that principle in accordance with Danish
sovereign rights. Even on this point it is worth noticing that the
right of Denmark to build a bridge across the Great Belt is not
contested by Finland, (para. 8, pp. 5 - 6 of the Memonal). It is the
design of the bridge which must not deprive the strait of its
character as navigable waterway. temtory", and also ignores Denmark's legitimate right to connect
the two geographically divided segments of its territory and its
population. Finland forgets that the function of the Court in this
dispute is the fundamental one of al1tribunals, namely, to ensure, in
a concrete case, the compatibility of conflicting nghts, none of
which may pretend to be absolute, even with some sacrifice by both
parties. Yet, in the Introduction to its Memonal (paragraph 17)
Finland asserts that "the Court is not called upon to establish aad
hoc balance but to apply the law". However, the function of law is
not to grant to an obstinate claimant the "pound of flesh" it believes
itself tobe entitled to, but to seek a proper balance between the
conflicting interests and the competing nghts of the disputing
States.
10. The right of passage claimed by Finland is unlimited,
because it is not satisfied with a vertical clearance of 65, o70, or
80 metres, nor even by a clearance of 180 metres, because new
designs of offshore craft may create the need for a higher vertical
clearance. In its submissions it asks the Court (para. 560) to declare
that it has a nght of passage through the Danish Straits, without
proposing or accepting any definite height limit for a reasonable
vertical clearance.
11. Finally the claims of Finland amounts to an expanding
or elastic nght because it asks the Court to declare that such an
absolute and unlimited nght is capable of expanding and increasing
in height as a result of future developments in marine design and
constmction. In the Introduction to the Memonal it refers to the
need "to take into account foreseeable trends in ship design and
size" (para. 5, p. 5).
12. This look into the future permeates the whole Memorial.
Thus, Finland refers in a number of paragraphs to new trends in
future ship building and marine constmction. For example, it is
state'dthat "a heighof 65 mettes will be able to accommodate most
but not al1existing ships" (para. 4, p. 5 of the Memorial). Yet, it
contends that Denmark is prevented from erecting the projectedbridge, in order to permit the occasional passage of offshore craft
such as drill ships, oil rigs and other special ships "under
construction or design whose dimensions vastly exceed the height
of 65 metres", see paragraph 5, page 5 of the Mernorial (Italics
added). As will be demonstrated the FixedLink across the Great
Belt will not prevent a single ship from entering or leaving the
Baltic Sea.
13. The Danish experts have mentioned the possibility of
raising the vertical clearance by 3.8 rnetres, but this did not satisfy
the Finnish experts who obsewed that "(t)his would not solve the
basic problem ...there is no reason to believe that the height of
future ships would remain less than 75 metres" (Annex 72 to the
Mernorial, p. 242).
14. To accept a right of passage with such characteristics -
taking into account also that a movable bridge must be excluded
inter aliu due to the increased risk of collision with the bridge -
means imposing a perpetual and increasing servitude non edificandi
upon the Kingdom of Denmark. As the late Professor Max Sgrensen
has once obsewed, "..there is also general agreement that it is not
possible, and therefore not necessary, to take into account unknown
developments of the future. Once the bridge is there, future ship
constmctions will have to be adapted to it. A certain principle of
priorities can be adopted for this purpose. ..."(para. 597).
15. The Counter-Memorial will show the intensive
considerations given by successive Danish Governments to the
bridge project seen in relation to the passage through the Great
Belt. Denmark has indeed paid heed to the prudent advice of Dr.
Erik Brüel in his treatise International Straits, (London 1947),
where he writes in the concluding section:
"...the history of both Turkey and Denmark shows what risks
are rcn by the strait state when it shows too great a disregard
for its "social" functions. It is then impossible to say more
than that in administering international straits the coastal state must bear in mind that it is carrying out a communal function
as well as looking after its own interests....(Vol. II.p. 426).
16. In its administration of the straits Denmark is seeking
an equitable balance between its sovereign rights and the interests
of the international community.
17.. Considering the fact. that the existing traffic of ships
through the Great Belt is left unaffected by the bridge across the
Eastern Channel of the Belt; the dispute boils down to a
confrontation between the alleged right of passage of Finnish
mobile offshore drilling units (MODUS) and Denmark's sovereign
right to unite the two main parts of its territory by constructing
interalia a high-level bridge. This dispute is narrowed down even
further by the fact that almost al1 Finnish MODUs may without
modifications pass through the Danish strait named the Sound as it
will be demonstrated in Chapter VI of Part 1. The few existing
Finnish units (already built and delivered) which may not pass
through either the Sound~orthe Great Belt may nevertheless be able
to do so subject to temporary modifications of the rigs. The actual
confrontation may then be limited to the hypothetical passage in the
future of certain oil drilling structures with exceptional dimensions
and the bridge. This represents a striking factual contrast of the
present case. Moreover, these floating offshore objects do not corne
within an internationally recognized concept of ships and are,
therefore, not entitled, as a matter of legal right to unimpeded
passage through the Danish straits.
18. The dispute is characterized by another surprising fact
i.e., no direct provision of international law exists which governs
the question of the building of bridges across international straits,
though international straits for centuries have been the subject of
much political and legal controversy. This is especially tme with
regard to the Danish and the Turkish straits where positive treaty
regulations have been adopted with a view to regulating the traffic
of ships through these straits, which are othenvise subject to
national sovereignty. 19. The history of the Danish straits as outlined in
paragraphs 554 -560 confirms this point of view in the sense that
Danish sovereignty over its straits is not to be contested. Even
though certain Danish rights in this respect may have been abo-
lished in the course of history, such as the payment of passage
dues, the basic sovereignty of Denmark was left untouched. The
right of innocent passage through the Danish straits is another
restriction imposed upon Danish sovereignty in the interest of the
international community at large. Such restrictions on the
sovereignty of a State are themselves subject to a restrictive
interpretation. No absolute and permanent servitude can be imposed
upon a sovereign State through such a restriction.
20. A further characteristic feature of the present case
concems the fact - as already mentioned - that Finland accepts the
building of a bridge across the Great Belt as justified under
international law as long as the bridge provides for an opening with
a width of about 200 metres and no limitation as to the height
within that width. However, such a bridge would traditionally be
constructed as a low-level bridge, and the result seen in relation to
the considerable traffic through the Great Belt would be to hamper
the passage in such a manner that the strait would cease to be a
navigable waterway - a result that would run counter to the
applicable rules of international law governing the passage through
the Danish straits. It is exactly these international rules which
Denmark has sought to fulfil by const~cting the bridge with a
height of 65 metres and a main span of 1,624 metres so as to leave
open the waterway for the existing traffic of ships - a course of
action which at the relevant time met with no objection from any
State.
21. In this connection it should be noted that Finland
presents the case as if Denmark is about to plan a high-level bridge
across the Great Belt, whereas the fact is that the high-level bridge
as part of the whole integrated project fora fixed traffic link across
the Great Belt was made law in 1973. Preparatory design work was
initiated in the same year, culminating in a notification to al1 foreign missions accredited to Denmark in May 1977 giving details
of the constmction of the bridge. No objections were raised by
Finland.
22. The project was suspended at the end of the 1970s, but
resurned in the early 1980s and again notified in 1987. Finland's
first diplomatic reaction to the bridge project was conveyed to the
Govemment of Denmark on 19 June 1990 -more than twelveyears
after the bridge project was notified in written diplomatic form to
the international community. The operative time for a relevant
objection must be when the project is initiated, not when it is about
to be completed. It is the submission of the Government of
Denmark that Finland did not raise a timely protest with the strait
State, thereby placing the Danish society in an impossible position.
In this connection it should be borne in mind that the Fixed Link
across the Great Belt is one integrated project meaning that the
development of the construction plans on each separate part is part
and parcel of the Project as a whole.
23. Bearing in mind that each case must be decided on its
own merits, a reasonable approach for deciding the present dispute
would appear to start out from the facts that the bridge project
across the Great Belt traversesin roto Danish territorial watersthat
these waters are subjected to passage by ships in accordance with
long standing treaty provisions and national Danish regulations
amounting to a right of innocent passage through the Danish straits
for ships of al1nations based both on conventional and customary
law; thatthis right is administered by Denmark as the strait State
and as negotiorum gestor of the international community; that
objections to the Danish administration must be raised directly with
the Govemment of Denmark in a way and within a time frame
which leaves the strait State a realistic possibility of changing its
administrative practice, if necessary; that the high-level bridge
across the Great Belt has been designed in such a way as to leave
open the passageway for existing ships which is explained by the
fact that the yearly movements of about 20,000 ships through the
Great Belt will not be affected by the bridge, whereas the Finnishtransport of drill ships, oil rigs and other offshore constmctions
which hitherto have passed through the Danish straits, at an average
rate of 1 unit a year since 1974, may have to use the Sound as a
passageway and in certain cases temporarily to modify the rigs to
enable them to be transported through the Great Belt or the Sound;
thar this sequence of facts together with the element of
proportionaliry which permeates central aspects of the present case
explains why no state objected to the bridge project when launched
in 1973and notified to al1foreign missions in Copenhagen in 1977,
thus leaving the Kingdom of Denmark to proceed with the
realization of theProject, in good faith.
24. Taking account of the particular circumstances of the
present case and its history it is the submission of the Government
of Denmark that the mles of international law applicable to the
Danish straits do not prevent Denmark from building the bridge
across the Eastern Channel of the Great Belt as an integrated part of
the Great Belt Project currently under construction.
25. The Government of Denmark reserves its position with
regard to al1 points of facts and law advanced by Finland in its
Memorial which have not been addressed in this Counter-Memorial. CHAPTER 1.
THE GEOGRAPHYOF DENMARK AND THE DANISH
STRAITS
26. Denmark lies south of the Scandinavian Peninsula and
north of the European Continent proper, and between the NorthSea
and the Baltic Sea. Besides Jylland (the Jutland Peninsula),
Denmark is made up of numerous smaller and bigger islands.
Whereas the land frontier (with Gennany) is only 67.7 kilometres,
the total coastline exceeds 7,300 kilometres. Apart from the many
smaller islands, Denmark consists of the Jutland Peninsula and the
two major islands, Fyn (Funen) and SjŒllund (Zealand). Almost half
of the five million Danes live on Zealand and its main neighbouring
islands, Lolland, Fulsrer, and M@n, these being interconnected by
bridges with Zealand. The other half of the population lives on
Jutland and Funen which are also connected by bridges. Reference
is made to Map 1 that shows the geography of Denmark with the
Danish straits,LillehŒlt (the Little BeltStorehŒlt (the Great Belt),
and Sundet (the Sound), as exits and entrances to the Baltic Sea.
These straits fonn a system of navigational routes between the
North Sea and the Baltic Sea. The Map also shows that FemerBŒlt
lies between theDanish island of Lolland and the German island of
Fehmarn'.
27. The Little Belt is the narrow strait thatseparates on the
one side the Jutland Peninsula and the island of Als from on the
other side the islands of Funen and Er@. Its length is 70 nautical
miles, and its width varies between 0.4 - 16 nautical miles. At its
deepest it is 81 metres, and its minimum depth in the navigable
channel is 15 metres. Due to its narrow and winding character, the
presence of shoals, and its rather strong currents the Little Belt is
'The geographical positiFemer Blcltis incorrectly described 5,p.ara.
II of the Mernorial as lying between the Fehmarnoand the German Nonh
Coast.The breadth o3nautical miles of the territorial seas of both Denmark and
Gemany leaves a route of open sea iFemer Blclr.difficult to navigate. Since 1935 Jutland and Funen have been
linked by a bridge across the Little Belt. In 1970 a second bridge
across the Little Belt was opened.
28. The Great Belt is the stretch of water between the
islands of Sams@, Funen, and Langeland on the one side and
Zealand and Lolland on the other. It has a length of about 90
nautical miles. The width of the Great Belt varies from 5.7 to
15 nautical miles. Between Knudshoved on the Funen side and
Halsskov on the Zealand side, the Great Belt is divided by the
island of Sprogg into two passages of almost equal width, the
Western Channel and the Eastern Channel. The navigable route in
the Western Channel between Knudshoved and Sprog@ is about 2
nautical miles wide, in the Eastern Channel between Sprogg and
Halsskov the navigable route is about 1 nautical mile wide.
29. The bottom topography of the Great Belt is dominated
by irregular trenches. In the central part of the Great Be-tto the
south Westand south of Halsskov - the depths of the trenches may
be up to 60 metres; in the northern part of the Belt up to 60 metres
and in the southern part of the Belt up to 40 metres. The water
depth in the trenches varies typically between 30 and 40 metres.
However, to the north of the island of Sprog@ there is an area of
shallow water. The water depth in this area is about 26 metres.
30. The Sound is the strait betweenDenmark (the island of
Zealand) and Sweden. Its length is approximately 56 nautical miles,
its width varies between 2.2 to 27 nautical miles. The capabilities of
the Sound as a navigable route to and from the Baltic Sea is dealt
with in Chapter VI. This Chapter also describes the project for a
fixed link across the Sound between Copenhagen and the Swedish
town of Malmo, see paragraphs 355 - 364.
31. The currents in the Danish straits are caused by the
rivers flowing into the Baltic Sea and the meteorological conditions
over Northern Europe. The relatively high river run off to the Baltic
Sea results in out-flowing surface currents in the Danish straits.However, these out-flowing surface currents are masked by the
irregular currents which are driven by the variable wind conditions
over the Baltic and the North Sea. The speed of the currents in the
central part of the Great Belt and the Sound varies normally
between % and 3 knots.
32. Map II shows that the Little Belt is Danish intemal
waters, and that a substantial part of the Great Belt is Danish
territorial sea. The area of the constmction of the Fixed Linkacross
the Great Belt is shown on Map III.This area is in its entirety
within the Danish territorialsea. The Sound between Denmark and
Sweden is partly Danish, partly Swedish territorial sea, with part of
the main navigational routetraversing Danish interna1waters. CHAPTER II.
THE DANISH PLANS FOR A FIXED LINK ACROSS THE
GREAT BELT
A. The Early Plans
33. The Great Beltdivides Denmark's population in almost
equal halves. For more than half a century there has been an urgent
desire to unify the country by establishing a fixed traffic linkacross
the Great Belt. The implementation of such a project would have
significant advantages for the Danish society. In proportion to the
size of the Danish society considerable investments would be
needed for the carrying out of the Project. The Project could be
carried out in different ways. The issue of a fixed link across the
Great Belt has, therefore, over the years been subject of extensive
debate in the Danish Parliament and in the media.
2. THE PROPOSAL S ADE IN THE 1930s
34. In the 1930s major bridge projects were successfully
carried out inDenmark. In 1935 the first bridge across the Little
Belt connecting Jutland and Funen was opened, and in 1937 the 3.2
kilometres long bridge across tStorstr@m connecting Zealand and
Falsterwas completed.
35. Due to the advances in engineering technology and the
increase in private car ownership a fixed connection across the
Great Belt no longer seemed an impossibility, andin 1934a Danish
railway engineer published a project for a narrow combined road-
and single track rail bridge across the Great Belt.
36. In March 1936 three major Danish engineering firms
published a thoroughly elaborated project for a bridge across the Great Belt as a part of a major motorway network linking al1 of
Denmark together. The bridge combined a two-track rail line and a
roadway for motor traffic.
37. The project elicited major public and political interest
and led the Govemment to consider the constmction of a bridge
across the Great Belt. In a letter of23 May 1936 the Ministry of
Foreign Affairs advised the Ministry of Public Works that the
clearance for a bridge across the Great Belt allowing the highest
existing ships to pass would conform to international law (Annex
1).
38. The project published by the three major Danish
engineering fim~sprompted the Danish State Railway to make the
first official project for a bridge across the Great Beltz. In the
budget for the Danish State Railways funds were set aside for soi1
investigations in the Great Belt. However, before the investigations
could be initiated, the outbreak of World War Two caused the
Project to be suspended.
B. The PreparatoryWork 1948 -1972
39. Shortly after the end of World War Two renewed
interest in the bridge project emerged. For three weeks during the
exceptionally cold winter of 1947only the most powerful Danish
icebreaking vesse1 could cross the Great Belt, and an emergency
airlift between Zealand and Funen was established. This caused the
Govemment in 1948 to establish a Commission to consider the
effect of a bridge for rail and road traffic across the Great Belt.
' Figure1shows the desiof the high-level bridge across the Eastern Channel
made hy the Danish State Railways and publin1936.
17'
40. .In 1956 the Commission issued a preliminary report on
the technical aspects of establishing a fixed link across the Great
~elt'. The Report contained theCommission's preliminary findings
as to the alignment of the bridge and the designof the bridge.
41. The Commission's final Report was completed in
December 1959 and published in 19604. The Commission
recommended an alignment from Halsskov Rev over the island of
Sprog@ to Knudshoved to be examined more thoroughly. The
technical design of the bridge was a continuation of the bridge
Project made in the late 1930s by the Danish State Railways.
42. The Commission had obtained an opinion from the
Danish Ministry of Foreign Affairs onthe foreign policy considera-
tions which had to be taken into account in connection with the
plans to erect a bridge across the Great Belt. In a letter of 12
February 1957from the Ministry of Foreign Affairs to the Ministry
of Public .Works it was stated that under international law nothing
would prevent the construction of a bridge across the Great Belt
provided that the bridge was constmcted in such a way that itdid
not present any hindrance to the passage of even the largest vessels
existing at the time.The.said letter refers to an opinion rendered on
4 Febmary 1957 by the legal adviser on international law to the
Ministry of Foreign Affairs, ProfessorMax Sdrensen (Annex 2).
43. On this basis, the Commission recommended a vertical
clearance of around 67 metres to give al1 existing vessels free
passage. The Commission rejected the idea of a low-level bridge
with movable parts(bascule, swing or hoist bays). The Commission
found that considerations relating to the navigation and the intense
traffic over the bridge would exclude such a solution (Annex 3).
'Repon 15511956.
Repon 23711960.
'FigureI shows the design of a high-level bridgeacross the EasternChannel
madeby theGreatBelt BridgeCommissionandpublishedin 1960. 44. The Commission regarded it as technically possible to
construct a bridge across the Great Belt and stated that the burden
placed on Society by canying out the Project was not likely to
exceed the economic capacity of the country. The Commission did
not propose a time for the start of construction of a bridge across
the Great Belt, as this intrliahad to be adapted to the prevailing
economic policy, the employment situation and the possibilities for
obtaining financing. Furthemore, the constmction had to conform
to a long-terni programme for the total public investmentactivities.
Within the society's investment activities the major traffic
investments had to be placed in a specified order of priorities
(Annex 4).
45. In 1961 a Traffic Economic Cornmittee established in
1955 by the Minister for Public Works issued a report on the
priorities of the major traffic investments in an aggregatedyear
programme for public traffic investments6.The Traffic Economic
Committee recommended that a decision on irnplementing the
necessary prelirninary investigations concerning the Great Belt
Bridge ought to be made early so that the bridge could be
completed before 1975.
46. Following the final Report by the Great Belt Bridge
Commission and the Report by the Traffic Economic Committee,
the Minister for Public Works submitted a Bill on 8 November
1961 on Technical Preparatory Works for the Construction of a
Combined Road and Railway Bndge across the Great Belt (Annex
5). The proposais made by the Great Belt Bndge Commission were
well received in Parliament, and Parliament unanimously passedthe
Bill. The Bill was enacted as Act No. 379 of 20 December 1961
authorizing the Minister for Public Works to initiate the planningand soi1investigations necessary for theconstruction of a combined
road and rail bridge acmss the Great Belt (Annex 6). The Act also
authorized the administration to make the expropriations necessary
to carry out the investigations.
47. In accordance with a proposal made by the Great Belt
Bridge Commission the Minister for Public Works had in 1960
established a Working Comrnittee intea r/ia with the aim to follow
traffical, technical and economic developments of importance for
the Fixed Link. In 1962 the Working Committee's tasks were
extended to make preliminary technical investigationsin connection
with the Great Belt Bridge. In 1962 -63 the Working Committee
was responsible for a preliminary soi1investigation programme, and
in 1963 - 64 for a new traffic analysis.
48. In 1965 the Minister for Public Works announced an
international competition for the design of a bridge or tunnel across
the Great Belt. An international committee consisting of seven
judges of which one was Finnish was established to examine the
entries submitted. 144 entries were received from 18 countries
including Finland7.
49. In 1968 the Working Committee submitted its report on
a fixed link across the Great ~elt'. In the Report six alternative
bridge, tunnel and combined bridge-tunnel solutions are reviewed.
'In para. 123 of the Memoriitis stated that "(m)any suggestions contained a
combined bridge - tunnel alternative". This can give a wrong impression of the
imponance of the bridgetunnel alternatives. In the published excerpt of the Repon
given by the Committee of Judges it declared: "The number of submitted tunnel
proposals was rather limited. Some of these proposals presuppose methods of
implementation which hardly are practicallyible, and a few of the proposals do
not satisfy the conditions for the competition. The number of proposals to be
considered has thereforeen very small".
Repon 50811968. In the Report it is stated that there seems to be little doubt that the
railway connection should be double tracked, and that much seems
to speak in favour of establishing or at least preparing a six-lane
motonvay connection9.
50. Information on the air draught of vessels which rnight
pasç the Great Belt was collected in order to establish the clearance
for a bridge across the Eastern Channel. Based on the obtained
information the Working Comrnittee stated that thereare vessels
with such an air draught that a clearance of approximately 68
rnetres would be necessary".
51. In 1960 there had been made a private proposal for a
fixed link across the Great Belt consisting of a low-level bridge
across the Eastern Channel and a tunnel under the Western Channel.
The Western Channel was to be made navigable for the largest
ships by a deepening of the area to a depth of 15 rnetres. This
proposal gave rise to a new inquiry to the Ministry of Foreign
Affairs. In an opinion of 29January 1962 Professor Max Serensen
gave an account of the mles of international law on the right of
passage in international Straits which had been dealt with at the
Conference in Geneva 1958 (Annex 7). The opinion was enclosed
in the Report submitted in 1968 by the Working Cornmittee. As to
the pnvate proposal, Max Sflrensen stated that nothing can be said
with certainty about the compatibility of the private proposal with
Denmark's obligationsunder international law, but that the question
'In para. 124 of the Memorial, it is stated that "(r)elying heavily on economic
considerations, the Workingroup suggested the constmction of a bridge with a
combined two-track railway plus ax-lane motonvay. al1in one floor." The use of
the term "relying heavily on economic considerations" may give a wrong impression
of the comprehensive and well balanced work canied out by the Working
Committee. It should albe noted that the Working Committee does not point to
one single solution as maintained in the Memorial. The Working Committee only
points out that a combined road and railge still isbeoregarded as the rnost
economic solution.
'OFigure I shows the design for a high-level suspension bridge across the
Eastern Channel made by the Working Committee and published in 1968.
21is associated with no inconsiderable doubts. With due regard to the
importance of the interest at stake, Professor Max Ssrensen was not
in a position to advise the implementation of a project which raises
such doubts, irrespective of the technical or economic advantages
offered by the project.
52. In 1970 the Minister for Public Works appointed a
Technical Comrnittee. The Technical Committee was requested to
make a feasibility study of the possible types of fixed links across
the Great Belt including an examination of a so called car-train
solution where the vehicular traffic is transferred on to special
shuttle trains. The Technical Committee was later requested to
evaluate the possibility of constmcting a fixed link via the island of
Sams6. In the Report submitted by the Committee in 1972 it is
stated that the most economic solution would be a fixed link across
the Great Belt constructed as a two-track railway tunnel under the
Eastern Channel and a low-level rail bridge across the Western
Channel for the ordinary railway and the car-train traffic".
53. In connection with the work of the Technical
Committee, Professor Max Serensen has rendered an opinion of
8 March 1971 on whether the buildingof a low-level bridge across
the Western Channel in connection with either a tunnel or a high-
level bridge with sufficient clearance across 'the Eastern Channel
could be done in accordance with international law (Annex 8). In
this opinion Professor Max S0rensen referred to a Pro Memoria of
28 August 1968 on questions pertaining to international law in
connection with the constmction of a fixed link across the Sound.
The Pro Memoria was edited by Dr. Hans Blix, legal adviser to the
Swedish Ministry of Foreign Affairs, andconsented to by Professor
Max S0rensen. In this Pro Memoria it was stated that the passage
" Figure 1 shows the design for a high-level bridge made by the Technical
Comrnitteeandpublishedin 1972. should not be precluded or irnpeded for even the largest presently
existing vessels which are able to pass through the Sound
irrespective of whether the vesse1in question sails in ballast or with
cargo. On the other hand, only ships could be taken into account,
not other floating constructions, such as drilling platforms, which
rnight pass through the Sound by way of towing.
C. The Initial Project
1.THE 1973 ACT ON THE CONSTRUCTIO ONF A BRIDGE ACROSS
THE GREATBELT
54. Based on the preparatory work camied out by the
Commi~sion'~,the Working Committee13, and the 1972 Report
by the Technical Cornrnittee the Minister for Public Works
submitted on 16 January 1973 a Bill on the Constmction of a
Bridge across the Great Belt (Annex 9). It was proposed in Section
2 of the Bill that theProject should consist afhigh-level bridge
across the Eastern Channel and a low-level bridge across the
Western Channel with a six-lane motonvay with emergency lanes
and two railway tracks. The design of the high-level bridge should
allow for the necessary navigationalclearance.
55. In Section5 of the Bill it was proposed that a special,
governmental administrative entity, Sratshroen Store Brelt, be
established by the Minister for Public Works who should be in
charge of the Project.
56. The reasons for the choice of a combined road andail-
way bridge amongst the options provided in the previous reportsare
given in the comments to the Bill. The Govemrnent considered a
pure rail tunnel solution technically vulnerable cornpared to a
''Repon23711960.
" Repon 50811968.combined rail and road bridge. It was also felt that the motorists
would find the car-train solution inferior to a solution enabling the
cars to drive across the Great Belt. The car-train solution would
then result in less traffic across the Great Belt with anensuing faIl
in revenue.
57. The cornments to the Bill also addressed the issue of
international law. It was underlined that international lawnecessi-
tated that the bridge across the Eastern Channel be given a
clearance sufficient for the passageof the largest existing ships. On
the basis of the available information the Ministry of Foreign
Affairs and its adviser on international law considered that the
Western Channel of the Great Belt must be characterised as a
secondary navigational channel, and that Denmark would not be
neglecting its obligations under international law in preventing
passage through this navigational channel by building a low-level
bridge. It is further explained in the Comrnents to the Bill that since
the legal evaluation is based on a Danish view of actualconditions,
the Government intends to give foreign countries involved a chance
to put forward any objections they may have, once a decision to
build the link has beentaken.
The Bill was well received in the Danish Parliament and
58.
was passed with 117 votesagainst 28, 16 abstentions, and enacted
as Act No. 414 of 13 June 1973 on the Construction of a Bridge
across the Great Belt (Annex 10).
59. In November 1973 the Minister for Public Works
appointed the members of the board of Statsbroen Store BŒlt.
60. The steep increases in energy prices at the end of 1973
and in the beginning of 1974caused the Governrnent to have Stats-
broen Store BŒlt investigate whether the increase in the prices of
energy had changed the preconditions for the 1973Act. It was to be investigated whether a rail tunnel only solution was to be preferred,
thereby abolishing the motorway connection. The two alternative
solutions, a combined rail and road bridge as provided for in the
1973 Act or a rail tunnel only solution, were to be compared with a
continuation of the feny service. The preparatory work to be camed
out under the 1973 Act was suspended until the results of these
investigations were available. Consequently, the organisation of
Statsbroen Store Bceltwith a permanent staff wasalso suspended.
61. In August 1975 the Board of Statsbroen Store BŒlt
published theresults of the supplementary investigations. The Board
concluded that a fixed link across the Great Belt would still be very
profitable for the Society,and that the car-train solution with a two-
track rail tunnel and a low-level bridge was still the most profitable
solution.
62. In the account of traffic policy givenby the Minister for
Public Works to the Danish Parliament on 16 October 1975 the
Minister stated that the most important traffic policy issues were the
design of the Fixed Link across the Great Belt and the final
decision to start the works.
63. In December 1975 two small parties in the Danish
Parliament submitted a Bill to amend the 1973Act in order to have
a tunnel instead of a bridge across the Eastern Channel. A third
political party proposed a resolution on a suspension of the Great
Belt Project. In May 1976 the Bill as well as the proposed resolu-
tion was defeated by a substantial majority of votes. The Bill was
defeated by 126 votes against 30, 6 abstentions; the resolution to
suspend the Project was defeated by 101 votes against, 60 for and 5
abstentions.
64. In June 1976 the position ofexecutive director for Stats-
broen Store BŒlt was advertised, and the first executive director
was appointed on 1 September 1976.111January 1977 Statsbroen
Store BŒlt had a permanent staff of six persons. 65. In May 1977 a number of international newspapers and
other publications carried advertisements from Stutshroen Store
Bdt inviting contractors of international standing to prequalify for
bidding for the high-level bridge across the Eastern Channel. The
invitation contained technical specifications on the bridge including
the clearance to be provided (Annex 11). Applications for
prequalification were to be submitted not later than by I August
1977.
66. By Circular Note of 12 May 1977 the Ministry of
Foreign Affairs advised al1Heads of Foreign Diplomatic Missions
accredited to Denmark of the Great Belt Project (Annex 12).
67. The Note advised on the 1973 Act on the Constmction
of a Bridge across the Great Belt and stated thatconstmction plans
were now being prepared. The Note is not, as claimed in paragraph
128 of the Memorial, a generally phrased statement to the effect
that the constmction across the Eastern Channel in conformity with
international law will allow international shipping between the
Kattegat and the Baltic to proceed as in the past. The Note
contained detailed information on the alignment and theutilization
of the bridge. In the Note it was stated that according to available
data the high-level bridge across the Eastern Channel would notin
any way restrict passage through the Great Belt by existing ships
which have navigated these waters in the past. An explanation for
the horizontal clearance of the high-level bridge is given, and it is
expressly stated that the free vertical clearance for passage under
the high-level bridge will be 62 metres above mean sea level.
68. The purpose of the Note was, as explained in the
comments to the 1973 Act, to give foreign States the opportunity to
object to the Project. The wording of the Note leaves no doubt. Any
State receiving the Note which was of the opinion that a bridge
across the Eastern Channel with a clearance of 62 metres would not be in accordance with international law because the bridge would
not allow for passage of existing ships through the Danish straits
had a strong inducement to object. This seemed to be pmdent
especially for countries having a coastline within the Baltic. And a
country whose shipyards at the time of the receipt of the Note had
built seven semi-submersibles with air draughts exceeding 62
metres and had entered into contracts obligating to deliver an
additional.number of similar semi-submersibles, and who wasof the
opinion that the planned bridge would violate its rights, had to
object not to suffer any loss of rights. No interna1 political or
economic circumstances in Denmark at the time when the Note was
sent could justify an omission to object.
69. The Note was sent to al1 States having diplomatic
representation in Denmark at the time including the then six States
around the Baltic Sea, Sweden, Finland, the USSR, Poland, the
German Democratic Republic and the German Federal Republic.
Only two countries reacted .in substance to the Note. Less than
seven months after the receipt.of the Danish Circular Note Poland
suggested in a Note of 6 December 1977 that future trends within
the shipbuilding should be taken into consideration (Annex 13).
Three month later the USSR stated in a Note of 29 March 1978
interalia that the free height below the bridge girdein the Eastern
Channel should allow for the passage of ships with an air draught
of a minimum 65 metres, and the free horizontal clearance between
the bridge piers should be at least 350 metres (Annex 14). From
Finland there was silence until the summer of 1989, more than 12
years after the Note was issued.
70. Denmark answered the USSR in a Note Verbale of
28 June 1978 (Annex 15). In its answer Denmark points out that al1
particulars available to Denmark show that the clearance under the
bridge will not restrict passage through the Great Belt for ships
having navigated these waters in the past. The answer goes on to
state that there is nomaterial available to the Danish Authorities
which would justify a vertical clearance of 65 metres and asks the
Embassy of the USSR to submit information to support the need forsuch a clearance as soon as possible. The Danish Ministry of
Foreign Affairs did not receive any answer to this request. The Note
from Poland was answered by Denmark's Note Verbale of 3 July
1978 (Annex 16).
4.THE PROGRES SF THE INITIALPROJECT
71. In the period from October 1976 until August 1978
there was a large planning and research activity intatshroen Store
BŒltand considerable progress was made in the work related to the
design of the Great Belt Bridge. In this period the total number of
persons employed by Statshroen Store BŒltand its consultants was
around 195.
72. In 1977 the alignment, the longitudinal profile and the
cross-section of the Great Belt Bridge was determined. A decision
on the length of embankments was made. Measurements and tests
conceming hydrography, maritime environment, seismology, traffic
of ships, meteorology, soi1 conditions etc. were carried out.
Fourteen contracting groups were prequalified for bidding for the
high-level bridge across the Eastern Channel14.
73. In 1978measurement and test workcontinued. Meetings
were held with the prequalified contractors, and the tenderaterial
was Prepared in order to be issued in October 1978. The bids were
to be received in mid-1979.
74. Also in 1978 invitations to submit tenders for limited
preparatory works comprising an embankment from Halsskov reef,
a temporary harbour and a work site area on Zealand were issued.
Offers for this limited work were submitted, and a contract was
negotiated with the lowest bidder. Only one contract was
negotiated, and in the event the works under the contract had been
14
Figure I shows the desforthe high-level suspension bridge across the
Eastern Channel made SrarshroenSroreBŒlandpublished in 1978.
28 initiated and carried out, it would have accounted for lessthan two
percent of the budget for the high-level bridge and less than one
percent of the budget for the total Great Beltoject".
75. Early August 1978 Danish newspapers informed that
Statshroen Store Bælr had initiated land acquisitions in order to
start work on the Bndge Project, and that election of contractors
could be expected to take place around 20 August 1978.
5. DEBATES IN THE DANISH PARLIAMEN OTN THE GREATBEL?
PROJECT 1977 - 1978
76. In an attempt to justify Finland's decision not to
respond to Denmark's Circular Note of 12 May 1977 the
Govemment of Finland has put fonvard two assertions (para. 129of
the Memonal). First, -that the Note contained a statement to the
effect that international shipping in conformity with international
law would be allowed to proceed as in the past. This assertion has
been dealt with in paragraphs 67 -68.
77. The second assertion made by Finland is, that at the
time of the dispatch of the Note the political atmosphere in
Denmark was very uncertain. Therefore, "(a)s for Finland no
reaction was considered necessary". The Government of Finland has
been il1advised in making this statement in its Memorial. Finland
has not proven that the reason mentioned here was present and
decisive for the Finnish Govemment at the time. In the unlikely
event such proof should be presented, it is obvious that the Finnish
Government in such case has acted under a misconception for
which they themselves must bear responsibility.
IJInpara.132of the Memonal.refers to "conthathadbeen negotiaond
construction works were tsigned.In using this laneinlandcould create
the impressionthata numberof contractscoveringa substantialpan of the Project
hadbeen negotiated and ftnsigned.This is not so. Theonly negotiatedcontract
which was not signed dueto the postponemtf the Projectwas the contract
mentionedin para.74 of thisCounter-Memonal. 78. In October 1977 two parties from each side of the
political spectrum took initiatives concerning the Great Belt Project.
79. A party from the Right (Fremskridtspartiet) submitted a
Bill proposing that the Great Belt Project be suspended. In the
comments to the Bill it is stated that the Fixed Link across the
Great Belt should be built as soon as it is economically feasible.
From the Left another party (Socia[istisk Folkeparri) proposed a
resolution requesting the Government to submit a Bill postponing
the establishment of a bridge across the Great Belt until after 1990.
The reasons for this resolution were also of an economic nature.
None of the proposals called for an abolition of the Project. Due to
the two parties' limited number of seats in the Parliament it was
evident from the very beginning that the likelihood of success for
these proposals was nil. The proposals were rejected.
80. Finland tries to convey the impression that as early as
June 1978 it was almost certain that the Great Belt Project would
be suspended, and that despite this, tender procedures were
undertaken by Statsbroen Store BŒlt(para. 131 of the Memorial).
The facts do not support Finland's point.
81. Already on 16 March 1978 the Danish Parliament had
rejected a proposal to stop the funding of the Great Belt Project
with 109 votes against 61.
82. On 1 June 1978 a Motion was introduced in the Danish
Parliament by the Liberal Party (Venstre). This Motion contained
the factual statement that the point in time when it definitively was
too late to change the decision on the Great Belt Bridge would not
be until the end of August. During the debate on the Motion the
Minister for. Public Works pointed out that the Motion only
contained the facts which the Government had set forth earlier. The
Minister for Public Works made it clear that Statsbroen Store BŒlt
would continue its work as planned and added that the Great Belt
Project had been discussed and confirmed several times in the
Parliament. The Government supported the Motion which waspassed with 114 votes against 14; 24 abstentions. The Motion did
not as maintained by Finland contain a decision by the Parliament
to reconsider the bridge decision. Even after the Motion was passed
a suspension of the Great Belt Project was not to beexpected.
83. For Finland to use the Parliamentary Debates in the
period after the transmittal of the 1977 Circular Note as an excuse
not to react to the Note is absurd. Foreign Govemments were
obliged totake the formal communications from the Govemment of
Denmark at face value. They were not entitled to disregard them as
unrealistic onthe.basis of their own assessment of intemal Danish
politics.
D. The Postponement
1. THEDECISION TO POSTPON EHE PROJECT
84. In connection with the formation of a new govemment
an unexpected andatypical coalition betweenthe Social Democratic
Party and the Liberal Party, it was decided at the end of August
1978 to postpone the Great Belt Project as a part of a general
austerity programme. In his opening address to the Danish Parlia-
ment on 3 October 1978 the Prime Minister announced that due to
financial considerations the Govemment had decided to postpone
the Great Belt Project. The Prime Minister stated that the
Govemment would give the Danish Parliament a more detailed
account of the issue subsequently (Annex 17).
85. This account was given by the Minister for Public
Works on 17October 1978 (Annex 18).The Minister stated that the
decision to postpone the Project was made against the background
of the very severe economic situation of the country. The Minister
stressed that the Great Belt Project was merely postponed and stated
that the Govemment expected that the necessary preconditions for
resuming the Project would not be present until 4- 5 years had
passed. The 1973 Act remained in force, and it was decided to usethe postponement period to cany out additional investigations
concerning the Project.
86. In order to have the important and far-reaching
preparatory work carried out by Statsbroen Store BŒlt and its
consultants available when the Great Belt Project was to be
resumed, it was decided that Statsbroen Store Belt and its
consultants should continue to finalize the project work concerning
the bridge across the Eastern Channel and prepare a comprehensive
report on the activities undertaken by the agency in 1977 - 1979'~.
The material concerning the Project prepared by Statsbroen Store
BŒlt was filed and placed in separate archives with a view to being
utilized when the Project was resumed.
2. REACTION FRSOMOTHER STATES
87. It was thus clear to everyone that the Great Belt Project
was only postponed for a limited period, and that the Project would
be carried out in the foreseeable future. Thus, the USSR showed
more considerate and careful behaviour than the one Finland has
tried to defend in paragraphs 127 - 128 of the Memorial. In a Note
of 18January 1979,refemng to the Danish Parliament's decision to
postpone the erection of the bridge for a 4 - 5 year period and to
use the intervening period to investigate issues relating to a fixed
link across the Great Belt, theUSSR requested to be kept informed
about the more detailed plans for the implementation of the Project
in order to have a more detailed knowledge of al1 related issues
(Annex 19). From Finland there was only a continued silence.
'Starsbroen StoreBŒin 1979 publishedthe RepoEn redegmrelfor de af
Statsbroen StoreBŒlimedfor of lov nr. 414 of 13. juni 1973 om anlŒgaf broen
over StoreBŒlr udfmrteforberedende arhejder 1977 (Statement concerning
preparatoryworks undenaken from 1977 to1979 by Statshroen Store BŒin
pursuanceof Act No. 414 of 13 June 1973 on Constructionof a Bridgeacrossthe
GreatBelt). 3. DEBATES IN THEDANISH~PARLIAME ONNTHE GREATBELT
PROJECT 1978 - 1985 AND NEW INVESTIGATIONS
88. After thedecision to postpone the Great Belt Bridge
Project for 4 -5 year period, attempts were made in the Danish
Parliament to have the Government obliged to continue the Project
without delay. Attempts were also made to have the Project further
postponed. None of these attempts led to any change in the decision
taken by the Government in 1978.The 1973 Act remained in force
and so did the Govemment's commitment to resume the Project in
1983.
89. In his opening address to Parliament onctober 1982
the Prime Minister stated that the Govemment would give Parlia-
ment an account of the future traffic connections between the
Eastem and Western part of Denmark. The account would be given
on the basis of the results of the research program implemented
subsequent to the decision in 1978 to postpone the Great Belt
Bridge and in the light of the total economic situation of the
country and of the employment situation in the country.
90. On 15 Febmary 1983 the Minister for Public Works
gave to Parliament an account of the future traffic connections
between the Eastem and Western part ofenmark (Annex 20). The
Minister stated inter alia that the decision made in 1978 to post-
pone the Project was made against the background of the general
economic situation of the country. The economic situation of the
country had not improved in the intewening period. Nevertheless,
the Govemment found that the decision to establish a bridge across
the Great Belt should be upheld. The Government found that the
developments in tunnel technology could allow a new technical
evaluation of thevarious possibilities for the canying out of a
combined connection for road and rail across the Eastern Channel.
It was also to be investigated whether a fixed link could be
cons'tructedin stages. It was the Govemment's intention to give
Parliament an account of the Project when these investigations had
been canied out, probably in the spring of 1985. 91. On 3 March 1983 the account given by the Minister for
Public Works was debated in Parliament. The debate showed a
parliamentary majority for supporting a fixed link across the Great
Belt, and the Minister received a clear mandate to initiate a tech-
nical updating of the 1978 Project".
92. After receiving this mandate the Minister for Public
Works had in the following two-year period major investigationson
technical and economic issues relating to the Fixed Link across the
Great Belt carried out.
93. In April 1983 the Minister for Public Works established
a Technical Group to update the 1978 Project and to reevaluate
alternative proposals for the Project. The Report of the Technical
Group was published at the end of 1983. As to the bridge project,
the Report relied on main assumptions identical to those applied in
the 1978 Project. The vertical clearance of the bridge across the
Eastern Channel was identical to the earlier project and also the
horizontal clearances were thesame, namely either 780 metres for a
cable-stayed bridge or 1,416 metres for a suspension bridget8.
94. In 1985 two reports on a fixed link across the Great
Belt were published. The Minister for Public Works had established
a working group consisting of three prominent and independent
economists. The task of the working group was inter alia to
investigate the economic consequences of a fixed link. The Report
" A proposal tabled by the Radical Liberal Party (Der RadikVensrre)to
annul the 1973 Act was dismissed. Few months later, on IO May 1983 the Danish
Parliament passed a Motion tabled by the Radical Liberal Party calling for an
amalgamation of the ferry routes for road and rail traffic across the Great Belt. The
Motion was opposed hy the Government who found that investments in the ferry
serviceswould be made obsolete by the establishment of a fixed link and could only
lead ro a delay in the construction of a fixed link across the Great Belt. The majori-
ty of Parliament decided against the Government, and a Bill on the Expansion of the
Ferry Services across rhe Great Belt was enacted as Act296 of 6 June 1984.
''Figure 1 shows the design for a high-level suspension bridge across the
Eastern Channel madehy the Technical Group and published in 1983.published by the working group concluded that the so called car-
train solution as well as the bridge solution containing a motorway
would be economically competitive compared to a continuation of
the feny service. Another workinggroup established in 1983by the
Minister for Public Works with the task to investigate the traffic
between the Eastern and Westernpart of Denmark published also in
1985 a report on the economic consequences of various technical
options for a fixed link across the Great Belt. The Report concluded
that as in al1other investigations undertakena fixed link across the
Great Belt would be a highly profitable investment for the Danish
society.
95. Following the technical andeconomic investigations the
Minister Public Works on 17 April 1985 gave the Parliament the
promised account of the Fixed Link across the Great Belt (Annex
21). The account concluded that a fixed link across the Great Belt
would contnbute to a significant improvement of the most
important traffic connections, that a fixed link across the Great Belt
would be a very profitable investment to the benefit of the Danish
society, and that the Government held it of importance to have the
establishment of a fixed link started as promptly as possible. The
account given by the Minister for Public Works was generally well
received by Parliament.Figure 1: PUBLISHE DDRAWING OF PROPOSAL FSR BRIDGES
ACROSSTHE EASTERN CHANNEL
1936The Dmish Stale Railways 197SrorsbroenSroreBŒlr
1959The GreatBelt BridgeCommissi1983 The TechnicalGroup
1968The Workingmittee 198AIS SiorebŒlrs/orbindelsen
1972The TechnicalCommittee 199AIS Siorebrplrsforbindelsen E. The Present Project
96. Talks between a liberal/conservative Government
established in 1982 and the Social Democratic Party, the largest
party in Denmark, led to a Political Agreement of 12June 1986 on
the Construction of a Fixed Traffic Link across the Great Belt
(Annex 22). The Agreement provided for a two-phased
establishment of a fixed traffic link across the Great Belt. The first
phase was to be a rail link, followed by a 4-lane motorway
connection as the second phase. Both rail and road connections
were to cross the Western Channel on a low-level bridge. The rail
connection across the Eastern Channel was to be through a tunnel.
The motorway connection across the Eastern Channel belongingto
the second phase was planned with a high-level bridge as the
pnmary option. The Agreement also states that the experiences from
the tender procedure concerning the rail tunnel could be taken into
account by the parties when considering whether to invite tenders
for a high-level bridge aswell as an immersed tunnel for the road
link across the Eastern Channel see Section 1 of the Agreement.
97. The rail connection was to be built as the first stage of
the Project. The second stage of the Project, the motorway connec-
tion, was to be started at least one year prior to the start of
operating the rail connection.
2. THE 1987 ACT
98. In order to have the 1986 Political Agreement passed
into law the Minister for Public Works on 21 January 1987 sub-
mitted a Bill on the Constmction of a Fixed Link across the Great
Belt (Annex 23).The Bill was passed by Parliament andenacted as
Act No. 380 of 10 June 1987 on the Construction of a Fixed Link
across the Great Belt (Annex 24). The Act repealed the 1973Act
on the Construction ofa Bridge across the Great Belt. 99. The wording of the Act and the comments to the Act
clearly reflect that a high-level bridge across the Eastern Channel
continued to be the primary solution. Section 4, Subsection 2 of the
Act provides that the motorway link may cross the Eastern Channel
on a high-level bridge or in an immersed tunnel. A project was to
be prepared for the inclusion of the irnmersed tunnel in the
invitation to submit tenders, if it is considered appropriate in terms
of constmction and economy to invite tenders for both alternatives.
And in the comments to this Section it is stated that the Section is
drafted to reflect the view that the high-level bridge still is the
preferred alternative.
100. A State-owned Company, AISStoreb~ltsforbindelsen,
had been incorporated already in January 1987.The purpose of this
entity was to undertake the design and, as employer, thecon-
struction of the Fixed Link. The reason for choosing a joint stock
Companyas the format for the organization of the Project instead of
a separate administrative entity as was done with the initial project
was to obtain the clearest possible separation between the economy
of the Project and the budget of the State.
101. By Circular Note of 30 June 1987 the Danish Ministry
of Foreign Affairs advisedl1Head of Foreign Diplornatic Missions
accredited to Denmark of the Project (Annex 25). This Note did not
give rise to any reactions from foreign States.
102. In July 1987 AIS Srorebeltsforbind comlmeenced
preparing a conceptual design for the Fixed Link to estabaibasis
for the subsequent tenders. While the Project was to be considered
an integrated whole, a specified lead time of two to four years for
the completion of the rail connection prior to the opening of the
road connection initially focused attention on the rail component of
the Project. 103. At the end of 1987 conceptual designs had been drawn
up for al1three major sub-components of the Fixed Link, the East
Tunnel, the West Bridge and the East Bridge. The three sub-
cornponents were to combine into a double-track railway and a 4-
lane motonvay reaching 18 kilometres from Knudshoved on Funen
to Halsskov on Zealand. An artificial island just to the north of
Sprog0 would provide the interface between the Eastern and the
Western halves of the Project.
104. The East Tunnel provides the rail connection between
Sprog0 and Halsskov at Zealand, a distance of 8 kilometres. The
conceptual design called for either a bored tunnel of a total length
of 7.9 kilometres or an immersed tunnel.
105. The West Bridge spans the 6.6 kilometres between
Knudshoved at Funen and Sprog@, canying both road and rail
traffic. The 1987 conceptual design provided for three alternative
superstructures: a double deck composite steelfconcrete girder, as
well as concrete or steel girders in one level only. Bridge clearance
was initially set at 14metres, but waslater changed to 18metres in
order not to force smaller craft to use the Eastern Channel.
106. The Eastern Road connection cames the road traffic
from Sprog@ to Halsskov. The conceptual design for the high-level
bridge had two variants. A cable-stayed bridge with a main span of
780 metres with side spans of 300 metres or a suspension bndge
with a main span of 1,416metres and side spans of 400 metres Le.,
the same main span lengths as were included in the 1978Project by
Statsbroen Store Bcelt. Both alternatives for the main span were
connected to the shore by approach spans 164 metres in length. The
total length of the East bridge was to be 5.5 kilometres, supplemen-
ted by ramps at each end. The bridge clearance was initially set at
77 metres. The design for the cable-stayed bndge as well as for the
suspension bndge was based on the specifications for the 1978Pr~ject'~.The secondary, immersed tunnel alternative had also two
variations, a concrete or a steel tunnel.
107. Notice to tender by restricted procedure for the rail
tunnel under the Eastern Channel was given on 28 July 1987. In
November 1987 five engineering consortia were prequalified to bid
for the work. Invitation for tenders were issued on 26 Febmary
1988, and offers for the rail tunnel were submitted on 30 June
1988.
108. Notice to tender by restricted procedure for the Western
Bridge was given on 9 October 1987. In March 1988 five engine-
ering consortia were prequalified to bid for the work. Invitation for
tenders were issued on 7 March 1988 and tenders were submitted
on 30 November 1988.
109. The 1986 Political Agreement provided that the
experiences from the rail tunnel tender should be taken into account
when deciding whether the motorway connection across the Eastern
Channel should be tendered not only as an high-level bridge but
also as an immersed tunnel.
110. The decision on whether to include a tunnel alternative
in the invitation for tenders for the motorway connection across the
Eastern Channel was to be taken by the Minister for .Transportzo
after consultations with an informal parliamentary group of
representatives from five political parties.
''Figure 1 shows the design for the high-level suspensionbridge across the
EasternChannelmade by AISSiorehŒlisforhindeland publishedin 1987.
'OIn 1987the Ministryof Public Workswasrenamed the Miniyf Transport.
40 111. On 9 September 1988 AISStorebŒltsforbindelsen made
a recommendation to the Minister for Transport concerning the final
overall design of the Great Belt Project.SStorebŒltsforbindelsen
recommended that the road connection across the Eastern Channel
should be carried out as a high-level bridge. The lowest cost for a
high-level bridge wouldbe DKK 5,350 million (USD 834 million)
and the rail tunnel tender had indicated that the costof an immersed
tunnel would be DKK 1,300 million (USD 203 million) highe?'.
In addition operating and maintenance costs were expected to be
more than50 per cent. higher forthe tunnel. The constmction of an
immersed tunnel would have ansignificant adverse impact on the
manne environment.
112. On 14 October 1988 the political parties to the 1986
Political Agreement approved the recommendation made by AIS
StorebŒltsforbindelsen. On 4 November 1988 the Minister for
Transport approved AIS StorebŒltsforbindelsen's recommendation.
On 9 November 1988 the Minister for Transport submitted to
Parliament a written account on design of the Project as approved
by him (Annex 26).
113. The Great Belt Project and its finaldesign was subject
to major national interest, and ledat the tirne to wide coverage in
Danish media. Also international news agencies and correspondents
considered the bridge project newsworthy and the Project gave rise
to both articles and comments in the Finnish media. In connection
with an official visit to Finland by the Danish Prime Minister on
9 September 1988the Swedish-language daily "Hufvudstadsbladet"
carried the leader "A Bridge-Builder from Denmark" with reference
to the plans for a bndge across the Great Belt (Annex 27). On
23 September 1988 "Hufvudstadsbladet" carried the article "The
Great Belt gets its Bridge" descnbing the project as a rail tunnel
and car bridge from Zealand to Sprog0 and a combined road and
''In thisCounter-Mernofliguresin DanishKronerhavebeenconvertedinto
US Dollarson the basis of the rateof exchange on I Apnl 1992 when 100 US
Dollars(USD)equalledDanish Krone(rDKK)641.45.motonvay bridge from Sprogg to Funen (Annex 28). Equally on
23 September 1988 the Finnish-language "Helsingin Sanomat"
carried the article "Bridge and Tunnel for the Great Belt" with
mention of an 8 kilometres long bridge and a tunnel from Zealand
to Sprog@ and an equally long combined road and rail bridge from
Sprog@ to Funen (Annex 29)22.
The Eastern RailTunnel
114. Pursuant to the political decision of 14 October 1988
and the decision of 4 November 1988by the Minister for Transport
AISSrorehŒltsforbindelsen on 28 November 1988 signed a contract
with an international consortium, the MT Group, for the
construction ofa bored rail tunnel under the Eastern Channel with a
contract sum of a total cost of DKK 3,074 million (USD 479
million).
115. As of 31 May 1991 a total of 861 metres out of a
planned 2,433 metres of the East Tunnel had been bored. The delay
was caused by a number of technical problems with the boring
equipment. A further delay has been caused by a serious flooding
incident on theSprogg work site on 14 October 1991.As of 1 May
1992 a total of 1,742 metres of tunnel had been bored2'. The
completion of the tunnel boring is currently scheduled for the end
of 1993, to be followed by rail installations.
''The insinuations containedin para. 554 of the Mernorialconcerningthe
conductof the Danishovemrnentin this respectare clearly out of place. That
therewas nothingto hide is furthemorereflectedin the enormouspresscoverage
given to theGreatBelt Project.
''Figure2 shows partof the Eastern Rail TunnelFigure2: THEEASTERR NAILTUNNELFigure 3: THEWEST BRIDGE The WestBridge
116. Tenders for the West Bridge were subrnitted on
30 November 1988. In addition to bids adhering to the conceptual
design given in the invitation to tender four alternative bridges and
a number of variations on the original design were suhmitted. On
26 June 1988 AIS Storebæl~sforbindelsen signed a contract with
another international consortium, the European Storebaelt Croup,
for the constmction of the West Bridge at a contract sum of DKK
3,157 million (USD 492 million).
117. As of 31 May 1991four caissons had been lowered into
the Western Channel on the Funen side. As of 1 May 1992 a total
of 24 caissons, 21 road girders and 19 rail girders have been put in
place, the bridge deck extends 2,177 metres across the Western
channelZ4. The cornpletion of the West Bridge structure is cur-
rently scheduled for the end of 1993, to be followed by road and
rail installations.
Land Worksand Dredgings
118. The implementation of the Project involves the
construction of major ramps along the island of Sprog0. Notice for
tender by restricted procedure for these works was given on 28 July
1987, invitation for tenders issued on 28 April 1988,and tenders for
the works were submitted on 24 January 1989.A contract for works
amounting to DKK 316million (USD 49 million) was signed on 26
June 1989. On 31 May 1991 the works were 87 per cent.
c~mpleted~~.
119. Also substantial land works on Funen and Zealand have
to be carried out in connection with the Project. These works are
carried out by a number of contractors. The aggregate contract sum
- p ~
l4Figure3 showsthe West Bridge.
''Figure4 showsrampsalong Sprogm.for al1 land works is approximately DKK 650 million (USD 101
million). Initial tenders were heldin April and May 1988 for both
Funen and Zealand access and road works. As of 31 May 1991
DKK 320 million (USD 50 million) have been paid to the
c~ntractors~~.
120. Section 5 of the 1987 Act provides that for the sake of
the marine environment the work in connection with the Great Belt
Project shall be perfotmed in such a way that the water flow
through the Great Belt shall remain unchangedafter the completion
of the work. The reason for this provision is that a restriction of the
flow could influence the salinity and oxygen content of the Baltic.
Dredgings were carried out in 1990 to compensate for flow
restrictions caused by ramps and bridge pillars. A total of 6.3
million cubic metres was dredged from the shoals surrounding
Sprog$. Most of the material was reused in the Sprogg ramps and
in four artificial islands constmcted to streamline the East Bridge
anchor blocks.
The East Bridge
121. Following the decision to invite tenders fora high-level
bridge across the Eastem Channel, design analysis for the optimal
bridge design was carried out dunng 1989. Notice for tender by
restricted procedure for the East Bridgewas given on 15July 1989.
122. Section 4, Subsection 2 of the 1987 Act provides that
the motorway may cross the Eastem Channel on a high-level bridge
2bThe landworks on Funen included the dismantling of theKnudshoved
motonvay bridge referred to in para. 134 of the Memorial. The bridge wds built as
pan of the 1983 programme toamalgamate car and rail ferry services across the
Great Belt and was also designed to accommodate the approach roadxed link
across the Great Belt as was planned at the lime. A decision made in 1989 to
have al1 toll booths for the fixed link positioned on Zedland made it necessary to
relocate thKnudshovedmotonvay bridge and consequently the original motonvay
bridge was dismantled in 1991 and substituted by a new bridge.r of other
installationslating to the ferry service, pdyment booths. queuing lanes etc. will
also bedemolished when the motonvay link across the Great Belt opens.Figure4: RAMPS ALONGSPROG~Figure5: MODELOF THEEAST BRIDGEwith the required navigational clearance. In the comments to the
Act it is mentioned that by the provision stating that the bridge
shall have the required navigational clearance it is signified by the
legislature that Denmark will adhere to its international obligations
to maintain the free passage for ships. It is further mentioned that
the high-level bridge probably would have a 76 - 77 metres
clearance.
123. The expected clearance of the high-level bridge across
the Eastern Channel stated in the comments to the 1987 Act was
based on infonnation obtained in 1986 by the Ministry of Industry.
124. In Novernber 1988 AIS StorehŒltsforhindelsen
commissioned a study from Det Norske Veritas to investigate the
air-draughts on normal oceangoing vessels, drill ships, semi-
submersible drilling units, jack-ups, semi-submersibles, Crane
vessels, sailing ships, ice-breakers and fishing factory ships passing
through the Great Belt. On 10 March 1989 Det Norske Veritas
submitted an updated Revised Study on Air-Draught of Merchant
Ships (Annex 30). On the basis of these investigations and after
consultations with Danish authorities AIS StorebŒltsforbindelsen
submitted a recommendation to the Minister for Transport fer a
clearance of the East Bridge of 65 metres. On 16 June 1989 the
Minister for Transport approved the recommendation.
125. On 24 October 1989 the Danish Ministry of Foreign
Affairs issued a Circular Note containing supplementary information
on the status of the Great Belt Project subsequent to its Circular
Note of 30 June 1987. In particular the high-level bridge across the
Eastern Channel was addressed and infonnation given about the
final design of the bridge including a vertical clearance of 65
metres (Annex 3 1).
126. In May 1990 seven engineering consortia were
prequalified to bid for the East Bridge. Invitation for tenders for theEast Bridge was issued on 31 May 19902'. Tenders were
submitted on 18 December 1990. The offers ranged from DKK
5,400 million - DKK 10,000 million (USD 842 million - USD
1,559 million). On 17 June 1991 the hlinister for Transport
authorised AIS Srorehrelrsforbindelse tn enter into final contract
negotiations with the financially most advantageous bids for the
bridge substructure and for the superstructure.
127. On 22 October 1991 contracts were signed with an
international consortium, Great Belt-East Bridge Contractors, for the
substmcture and with another international consortium, CMF Sud,
for the superstructure. The total contract price for the East Bridge
was DKK 5,400 million (USD 842 million)28.
F. Conclusion
128. The completion of the Great Belt Project will fulfil the
long-standing need for a fixed link across the Great Belt. The
barrier between the two parts of Denmark caused by the Great Belt
will be overcome.
" In the final design of the high-level bridge across the Eastern Channel the
main span was increased to 1,624 metres to funher improve navigational safety.
Figure I shows the final design of the East Bridge and Figure 5 shows a model of
th- East Bridge.
In para. 158 of the Memorial, it is stated, that "(e)ven as the contracts were
signed.. funher modification was made.." The wording seems to suggestAISat
Srorehrelrsforbindelnt the time as well could have made an additional change by
rnaking anopening in the bndge. The change referred to by Finland was due to the
fact that the alternative Sud project differed from the tender project in that
advances in steel alloy technique had made it technologically feasible to increase the
length of the approach spans by 25 metres to 193 metres. Like the substitution of a
pan of theSprogmembankment by bndge spans adding five extra piers to the West
Bridge this change was considered advantageous by Storebrrlrsfr>rhindeasen
it would improve water flow through the Great Belt compared to the tender design
and decrease the risk of ship collision. 129. The technical and economic aspects of a fixed link
across the Great Belt have been the abject of thorough analysis
since the 1930s. After World War Two three substantial
governmental reports on a fixed link across the Great Belt have
been published. In 1960 by the Great Belt Bridge Commissioii, in
1968 by the Working Committee and in 1972 by the Technical
Committee.
130. The 1960 Report by the Great Belt Bridge Commission
concluded that it was technically possible ta construct a bridge
across the Great Belt. When such a project should be carried out
was dependent on the social and economic conditions in Denmark.
The Commission's recommendation that further preparatory work
be carried out was followed by the Government and the Parliament.
The 1961 Act on technical preparatory works ta carry out a road
and rail bridge across the Great Belt was passed unanimously by
Parliament.
131. The 1968 Report by the Working Committee contained
detailed plans for different solutionsof the Fixed Link. These plans
were further elaborated in the 1972 Report by the Technical
Comrnittee.
132. The 1973 Act on the Construction of a Bridge across
the Great Belt was passed with a large majority in Parliament. The
Act provided for a high-level bridge across the EasternChannel.
133. From the Reports and the legislation it was evident from
the beginning of the 1970s that it was no longer a question whether
a bridge across the Great Belt would be built; the question wasonly
when the project would be carried out. It was most likely that a
fixed link across the Great Belt would be established within the
coming decades. The 1960 Report had excluded a solution
containing a bridge with an opening. From al1plans and drawings
existing at the time and availablea the public it was manifest that
the Fixed Link would comprise a high-level, fixed bridge across the
Eastern Channel. 134. The Reports and the legislationevidence that securing
the fulfilment of Denmark's obligations under international law in
connection with the Great Belt Bridge Project has been an
important pan of the preparatory work. The position of the
Government of Denmark has been unarnbiguous and clear. The
bridge across the Eastern Channel should have a vertical clearance
which would allow al1existing ships to pass under the bridge. The
Government's position was explained in the comments to the 1973
Act and in the legal opinions rendered in 1957, 1962 and 1971 by
the late professor Max Serensen, international legal adviser to the
Danish Ministry of Foreign Affairs, and published in the 1960,
1968 and 1972 Reports. In the 1971 opinion by professor Max
Serensen it was made clear "that floating units such as offshore
drilling rigs which might pass..under towage" were not to be taken
into consideration in deciding on the vertical clearance of a bridge
across an international strait.
135. The Circular Note of 12 May 1977 infonned other
States of the constmction of a bridge with a free vertical clearance
of 62 metres across the Eastern Channel. The Note demonstrated
that Denmark was of the opinion that a bridge with such vertical
clearance would conform with international law and consequently,
that floating unitssuch as drilling rigs with air draughts exceeding
62 metres did not have a right of passage through the Great Belt
after the completion of the bridge across the Eastern Channel.
Finnish shipyards had in May 1977 built seven semi-submersibles
with air draughts exceeding 62 metres and had entered into
contracts obliging to deliver an additional number of similar semi-
submersibles. Finland did not react to the 1977Note, thereby giving
Denmark reason to believe that Finland shared Denmarks views as
to offshore units' restricted entitlement to passage through the Great
Belt.
136. The suspension of the Great Belt Project in August
1978 was part of a new coalition Govemment's austerity program.
The new Government expected the Project to be resumed after a
period of 4 - 5 years. It was evident to everyone having an interest in the Project that it was only a question of time before it would be
resumed. This is demonstrated by the Note of 18January 1979 from
the USSR to Denmark requesting further information on the Project
(Annex 19).
137. In 1983the work on the Great Belt Project was resumed
with a view to updating the technological and economic basis for
the 1978 Project. In 1986 a political agreement was reached on the
Fixed Link across the Great Belt, and the agreement was
transformed into the 1987 Act. Even though an immersed road
tunnel is mentioned as a possibility, it was clear that a high-level
bridge across the Eastern Channel was considered the primary
option, and on 9 September 1988 AIS Storehæltsforbindelsen
recommended to the Minister for Transport that the road connection
across the Eastern Channel be camed out as a high-level bridge.
Also in September 1988the Finnish newspapers carried articles and
editonals on the Great Belt Project mentioningthe high-level bridge
across the Eastern Channel.
138. The Great Belt Project is an integrated whole.The unity
of the Project has been manifest from the very beginning and has
been evidenced by the 1973 Act, the 1987 Act and the 1987 Note.
In June 1990 when the first Finnish Note concerning the Great Belt
Bridge was sent to the Danish Ministry of Foreign Affairs the
Project was at an advanced stage. Work on the EastTunnel and the
West Bridge had started long before. Design works for the East
Bridge were carried out, and tender procedure for the East Bridge
had been initiated. Substantial land works and dredgings had been
completed.
139. The construction costs of the Great Belt Project was in
1991 forecasted to be DKK 19,030 million (USD 2.967 million) in
1988 pnces excluding financial costs. In May 1991 when Finland
initiated legal proceedings 56 per cent. of the total constmction
budget for the Great Belt had been contracted for, and DKK 5,600
million (USD 873 million) corresponding to 28 per cent. of the totalconstruction budget for theGreat Belt Project had been paidto the
contractors.
140. The total amount used in May 1991 on the part of the
Project relating to the East Bridge wasDKK740 million (USD 115
million). The amount covers design works, soi1 investigations and
land works for the East Bridge. The cost of removing land works
already carried out in May 1991 for the East Bridge is estimated at
between DKK 100 million - DKK 200 million (USD 16 million -
USD 31 million).
141. After more than 40 years of planning and close to 4
years of construction the completion of the Great Belt Project is
within sight. For Denmark the completion of the Fixed Link across
the Great Belt will be of major importance. A barrier dividing the
country will be overcome. Internationally the Great Belt Project is
recognized as a significant improvement ofthe traffic links between
Central Europe and the Nordic countries. The socio-economic
importance of the Great Belt Project is explained in the following
Chapter III. A detailed description of the effect of the Great Belt
Project on traffic through the Danish Straitsis given in Chapters IV
- VIII. CHAPTERIII.
THE SOCIO-ECONOMIC IMPORTANCE OF THE GREAT
BELT PROJECT
A. National Considerations
142. A brief look at the Danish geography explains the
urgent desire held through manydecades for a fixed link across the
Great Belt and the broad support expressed in Parliament for a
fixed link. Denmark belongs to the very small group of Stateswith
population and land area split between a number of major islands
divided by relatively narrow straits.
143. During the 20th century a number of Danish islands
have been linked by bridges. These important improvements of the
Danish infrastmcture have been a necessary precondition for the
establishment of a modem society able to maintain a reasonable
standard of living for the whole populationspite lack of onshore
mineral resources.
144. The Great Belt is a bamer between the Eastern and the
Western parts of Denmark. Western Denmark covers 78 per cent.
and Eastern Denmark 22 per cent. of the aggregate Danish land
area, while the population is split with 55 per cent. West of'the
Great Belt and45 per cent. east of the Great Belt.
145. Figure 6 shows a Map with the population (numbers in
millions) living in Jutland and on Funen Westof the Great Belt, and
on Zealand and the islands south of Zealand east of the Great Belt.
The Map also shows the main bridges in Denmark linking together
the various parts of the Kingdom.Figure6: MAP OFDENMAR KlTH ITS POPULATION(IN
MILLION S)D ITMAINBRIDGES 146. Copenhagen, the capital of Denmark, is situated on
Zealand. The major pari of the central administration, cultural
institutions of major importance for the national heritage and a
substantial part of the Danishbusiness community are placed in or
around Copenhagen. Transportation of passengers and goods
between the two parts of the country and from the part of the
country east of the Great Belt to the European continent has to take
place by ship or air until the Fixed Link across the Great Belt has
been established.
147. The Great Belt constitutes a time barrier to transport,
ferries being markedly slower and less flexible than land transport.
With the most modem ferry equipment passage across the Great
Belt lasts an average of90 minutes for car and 75 minutes for train
traffic, including average queuing and loading time. Added to thiss
the inconvenience of depending on another means of transport and
being locked into fixed ferry time schedules unconnected to the
steady and continuous rhythm of land traffic. In high season the
Great Belt is a major traffic bottleneck with waiting times of up to
3 - 4 hours not uncommon, necessitating reservations weeks in
advance.
148. The Great Belt is a restraint .on the development of
Danish society, the Belt curtailing traffic and trading between
Eastern and Western Denmark. The negative effect on traffic of the
Great Belt is illustrated by the traffic figures between the major
parts of Denmark and between Denmark and Germany. Figure 7
shows the number of cars annually passing the Little Belt, the Great
Belt, the Storstr@m,the Kattegat (Jutland - Zealand), the Fehmarn
Belt (LollandlFalster- Germany), and the Danish -German border.
The figures are based on traffic countings camed out by
Vejdirekroratet (The Danish Road Directorate) in 1988. Numbers
are quoted in millions.Figur7: MAP OFDENMAR KITHNUMBE RFCARS(INMIL-
LIONSANNUALL YASSINGHE MAIOR BRIDGES,
THE KATTEGAT, FEHMAR BELT, AND THE
DANISH-GERMBAONRDER 149. The relationship between traffic across the Little Belt
and the Great Belt is remarkable. Traffic across the Little Belt is
4.5 times greater than traffic across the Great Belt. This fact is even
more remarkable, taking into consideration the population figures
listed in Figure6 and that the political andadministrative centre of
Denmark is placed on Zealand.
,150. The local traffic between Zealand andLollandlFalsieris
4.4 million vehicles annually, more than 1.5 times the average
traffic across the Great Belt of 2.7 million vehicles annually.The
population of Funen is five times the size of the population of
LollandlFalsrer. With the Fixed Link across the Great Belt
established population figures indicate a traffic volume across the
Great Belt five times bigger than the volume from Zealand to
LollandlFalsier.
151. The Great Belt is a banier to trade between Eastern and
Western Denmark. Trade links across the Great Belt are compara-
tively weak, as evidenced by the mainly long-distance traffic across
the Great Belt. Regional short-distance traffic and commuting across
the Great Belt is minimal. Studies made in 1987 on the regional
goods flow calculated on the basis of transported tonnekilometres
by lomes of over 6 tonnes confirm the view of the Great Belt as a
significant trade banier.TABLE1 Transport of Regional Goods (tonne kilometres) in 1987
hy lorries of more than6 tonnes gross weight.
From Funen to (per cent.): From West Zealand to (per cent.):
County of: County of:
Vejle (w) 25 Roskilde (e) 14
Aarhus (w) 19 Storstr@m(e) 24
West Zealand (e) 1 Funen (w) 2
Storstr@m(e) 1 Aarhus (w) I
Total: Total:
West Denmark 89 East Denmark 89
East Denmark 1 I West Denmark II
(w) = West,(e) = east
152. The table shows that only 2 per cent. of transports from
the County of Funen go to the neighbouring counties of Western
Zealand and Storstr@m on the other side of the Great Belt. In
companson transports from Funen across the Little Belt bridges ta
the neighbounng counties of Aarhus and Vejle amount ta 44 per
cent. of the Funen total. This trend is repeated East of the Great
Belt. Only 3 per cent. of transports from the county of Western
Zealand go to the neighbounng counties of Funen and Aarhus,
while 38 per cent. go to Roskilde and Storstr@mscounties.
153. The Great Belt divides markets restricting competition
and hindering the establishment of economies of scale in produc-
tion, transponation and warehousing. These restrictions have a
negative impact on industrial development and economic growth.
154. The completion of the Great Belt connection
significantly reduces transport time across the Great Belt. The
passage time will fall from 90 to 15 minutes for cars and from 75
to 7 minutes for trains. 155. The reduction of transport timeswill have a substantial
impact on Danish society. A business trip from the Eastern to the
Western part of Denmark and back now normally requires a 2 day-
trip or overtime work unless air transport is used. When the Fixed
Link is established such a trip can take place within a normal
working day. Similar advantages will apply to the transportation of
goods and services. The yearly time savings for business traffic
have been calculated as being equivalent to 3,000 man-years.
156. The Fixed Link provides an added safety that goods and
traffic may pass the Belt continuously and without delay. This will
enable trade and industry to achieve more efficient production and
stock planning and goods distribution.
157. The Fixed Link will lead to a more effective utilization
of transport materiel and resources, with ensuing savings in materiel
and labour costs. These advantages accrue equally to domestic and
foreign transport companies.
158. Within industry theconcept of "just-in-time" production
has become a major competition parameter. The "just-in-time"
principle entails keeping stocks of raw material and semi-
manufactured materials at a minimum, deliveries taking place only
when necessitated by the production process. This decreases
warehousing costs as well as capital bound up in stocks. The
establishment of the permanent connection will considerably
improve the possibilities for Danish industry of implementing the
"just-in-time" production principle effectively.
159. The marked improvement of Danish transport
infrastmcture provided by the Fixed Link will be of major
importance to businesses trading in perishable goods, depending on
reliable transport at fixed times. This applies to inter alia
transportation of flowers, vegetables, meat, fishand dairy products.
160. Recent business development trends point towards
increasing specialization and dependence on subcontractors. Theimproved transport links provided by the permanent connection will
increase the possibilities of specialization and will give businesses
hitherto restricted in their choice of sub-contractors new options
across the Belt.
161. Numerous Danish businesses have been forced by the
Great Belt bamer to operate warehouses both east and Westof the
Great Belt to ensure acceptable delivery times and reliability. The
permanent connection will enable companies to amalgamate
warehouses with accming savings.
162. Equally, the permanent connection will simplify the dis-
tribution stmcture, making possible swift and reliable delivery to al1
customers in Denmark from one distribution point, with ensuing
rationalization gains.
163. Transport time across the Great Belt and the risks of
delays or irregularities in traffic have hitherto led service industries
to establish branches on both sides of the Great Belt. The opening
of the permanent connection will thus improve the possibilities of
rendering service anywhere in Denmark within an acceptable time
span from a single service point. Therefore, a concentration of
points from where services are rendered is expected.
164. The advantages listed here will be present even though
toll charges are to be paid for the use of the permanent connection.
The time bamer is the essential bar to normal business relations,
and this hindrance will be removed by the Fixed Link.
165. The discontinuation of the ferry traffic across the Great
Belt will lead to energy savings, as ferry traffic is less energy effec-
tive than cars and trains moving under their own power.
Transportation of cars by feny consumes approximately 5 times
more energy than the cars will use to cross on the bridge under
their own power. Transportation of persons by ferry consume
approximately 8 times more energy then by train. Yearly energy savings are estimated to be equivalent to the average yearly energy
consumption of 45,000 cars.
166. The establishment of the Fixed Link will lead to consi-
derable savings on the operation of existing feny services between
Zealand and Funen and between Zealand and Jutland. Savings will
be made on both operating and investment costs. Yearly savings on
investment, operating and maintenance cost of ferries are estimated
at DKK 1,555million (USD 242 million), while yearly expenditures
on investment, operating and maintenance for the Fixed Link are
estimated at DKK 1,049 million (USD 164 million). Net yearly
savings on investment, operation and maintenance can thus be
estimated at DKK 506 million (USD 79 million).
167. In addition to the savings mentioned in paragraph 166
the Fixed Link willimply savings on business transportation, leisure
trips and stocks. Yearly savings on business transportation costs are
estimated at DKK 1,380 million (USD 215 million), yearly savings
on leisure trips are estimated at DKK 269 million (USD 42 million)
and yearly savings on stocks are estimated at DKK 178 million
(USD 28 million), totalling DKK 1,827 million (USD 285 million).
168. The total yearly net economic benefits of the Fixed Link
across the Great Belt can thus be estimated at DKK 2,333 million
(USD 364 million). These calculations of the economic effect of the
Project indicate a social rate of retum of 11.8 per cent. per annum.
B. International Considerations
169. A significant part of the land traffic between the central
parts of Europe and Scandinavia passes through Denmark. Consequ-
ently, the quality of the infrastmcture in Denmark is of cmcial
importance to neighbouring countries. It is, therefore, not surprising
that other countries have supported and encouraged the undertaking
by Denmark of the Great Belt Project. 170. Subsequent to the enactment of the 1973 Act on the
Construction of a Bridge across the Great Belt the Committee on
Regional Policy and Transport established by the European
Parliament issued a Report on permanent links across certain sea
straits (Annex 32)29.
171. The Report contains a Motion for a Resolution on
Permanent links across certain sea straits. The Motion notes that
certain sea straits within the Community constitute an impediment
not only to the development of an inter-connected Community
transport network, but also to the economic and social development
of certain regions. Whileacknowledging the presence of existing air
and sea links, the Motion goes on to recommend the establishment
of permanent links.The Motion states that the European Parliament
"(c)onsiders that the creation of such links would materially reduce
transport cost and time between ....the Danish Islands (and) other
Community countries ...(and)...(r)ecognizes..that the social effects
of new and easier links across sea straits are likely to be
considerable, particularly on the out-lying areas of the
Community ...".
172. The Explanatory Statement to the Motion states that
"(t)he bridge over the Great Belt will completely change the most
important link between east and West in Denmark and will bring
about a significant improvement in the links between Central
Europe and Sweden via Jutland, Funen and Zealand ...".
173. The Motion was passed by the European Parliament on
12 December 1974 and communicated to the Council and the
European Commission.
174. International recognition of the socio-economic impor-
tance of the Great Belt Project not only in a Danish context but in
a wider European perspective is evidenced by Council Regulation
*'Repon of5 November 1974,Dokument 319/14.
60 (EEC) No. 3359190of 20 November 1990 for an action programme
in the field of transport infrastructure with a view to thecompletion
of an integrated transport marketin 1992 (Annex 33).
175. Finally, on 21 June 1991 a Report on relations between
the European Community and the members of EFTA in the
transport sector was submitted to the European Parliament (Annex
34)". This happened only shortly before Finland in its pleadings
before the International Court of Justice in the hearings on the
Request for the Indication of Provisional Measures in the present
case, most surprisingly argued thatRauma-Repola OfSshoreOy had
experienced a drop in orders for offshore units "partially attribu-
table" to the Great Belt Pr~ject.~'The Report contains a Motion
for a Resolution onrelations between the European Community and
the members of EFTA in the transport sector. The preamble to the
Resolution States the importance of creating an integrated pan-
European transport network andemphasizes the extensive efforts of
the Scandinavian countries to complete the ScanLink project,
including the Fixed Link across the Great Belt. In the Motion the
Parliament calls on the Commission and the Council to recognize
the importance to the Community of a number of major projects,
including the ScanLink project containing the Great Belt bridge.
The Govemments of the EC and EFTA States participating in these
projects are urged to take the decision to proceed and to complete
the projects with the utmost dispatch. The explanatory statement
emphasizes that Scandinavian cooperation on combined roadlrail
transport merits particular attention as a possible mode1for similar
schemes elsewhere.
176. The Motion was passed by the European Parliament on
10 July 1991 and communicated to the Council and the
" The EFTAcounrriesare Austria, Finland. Iceland, Nonvay, Sweden. and
Switzerland.
" Statementbycounsel of Finland.Sirlan SinclJuly1991Commission as well as to the Governments and Parliaments of al1
EFTA member States, including Finland.
177. It seems reasonable to expect that Finland as a member
of EFTA would at the time take an interest in cooperation within
the transport sector between the EEC and EFTA, particularly in
view of the European Parliamentary proceedings then in motion.
178. It is deplorable that Finland sirnultaneously by the use
of il1founded allegations, should attempt to hold Denmark respon-
sible for the lack of orders to a Finnish shipyard and to cause the
Court to stop the Great Belt Project in its present form, a project
that, apart from being of vital interest to Danish society, is also
intemationally recognized as a project of great importance for the
relations between the other members of the European Community
and the EFTA States. CHAPTERIV.
THE PASSAGEOF SHIPS THROUGHTHE GREATBELT
AFTERCONSTRUCTIONOF THEEAST BRIDGE
A. The Clearance of the East Bridge
179. It has at al1 times been the stated objective of the
Government of Denmark that the planned fixedlink, particularly the
dimensions of the vertical and horizontalclearance of the high-level
bridge, should be in conformity with Denmark's obligations under
international law to maintain passage through the Great Beltfor al1
known ships likely to use the Great Belt. This was made clear in
the Danish Public Works Acts from 1973 and 1987, as well as in
Denmark's Notes to the diplomatic community in 1977 and 1987,
see Chapter II,Part 1of this Counter-Memorial.
180. The decision as to the exact height of the East Bridge
was therefore preceded by years of careful analyses addressed to the
issue of establishing the appropriate vertical and horizontal
clearance of the high-level bridge which was to span the main
navigational route in the Eastern Channel of the Great Belt.
181. As described in paragraphs 66 - 70 the Government of
Denmark in 1977 notified al1Missions accredited to Denmark that
the high-level bridge across the Eastern Channel would have an
operative clearance of62 metres, and that Denmark considered this
height to be in conformity with international law.In a Note sent in
1978 the Soviet Union requested that the clearance be increased to
allow ships with a mast height of upto65 metres to pass under the
bridge.
182. In connection with the preparation of the 1987 Act on
the Construction of a Fixed Link across the Great Belt the Danish
Ministry of Industry in 1986 commissioned Der Norske Veriras, a
Norwegian based international classification bureaufor ships and
offshore units, to examine the air draughts of the largest merchantvessels and offshore units capable of passing through the Great
Belt. The Report dated 5 February 1986 concluded that no cargo
ship, tanker, sailing ship, passenger vessel, or naval vessel had an
air draught in excess of 57 metres. The Report noted that the Soviet
Union owned a number of drill ships with air draughts of 75
metres. Finally, it was mentioned that Cranevessels and drilling rigs
had air draughts ranging between 62 and 150 rnetres.
183. The vertical clearance of the high-level bridge was not
laid down in the 1987 Act on the Construction of a Fixed Link
across the Great Belt. However, in the official comments to the
Bill, issued by the Ministry of Public Works, it was stated that the
high-level bridge would probably need to have a clearance of 76 -
77 metres. This bridge height was anticipated to safeguard the
continued passage through the Danish Straits for drill ships, which
had a recorded air draught of 75 rnetres.
184. Following the passing of the 1987 Act, AIS
StorebŒltsforbindelsen was charged with the responsibility of
planning and supe~ising the constmction of the Fixed Link. The
authority tornake a decision on the operative clearance of the East
Bridge, however, rested with the Minister for Transport. Prior to
submitting a recomrnendation to the Minister for Transpon on what
the appropriate clearance of the high-level bridge should be, AIS
Storebceltsforbindelsenin 1989commissioned Det Norske Veritas to
execute a revised study on the air draught of the largest ships and
offshore units in the world.
185. The Report from Dei Norske Verifasconcluded that al1
existing cargo vessels, tankers, passenger ships, ferries, sailing
ships, ice breakers, and fishing factory ships in the world would be
able to pass under an East Bridge with a clearance of 65 metres
(Annex 30).
186. The Veriras Repon demonstrated that out of al1 the
above rnentioned categories of ships only one vessel had an air
draught in excess of 65 metres, namely the tanker or Ultra LargeCnide Carrier Burma Endeavour with an air draught of 68.5 metres
in ballast draught3'. However, if ballasted to the more relevant
Route T draught of 15 metres Burma Endeavour (now Stena
Queen) and its sister ship (Stena King) could sail under the Bridge
with air draughts below 60 rnetres. Finland's contention that a
bridge of 65 rnetres' clearanceexcludes the passage of certain ultra-
large oil tankers is therefore not correct (para. 13, p. 7 of the
Mernorial). Burma Endeavour has never plied the Danish straits,
and itis extremely unlikely that it will ever enter the Baltic, as the
vessel will have a draught in excess of 15 metres already when
loaded to one third of itsloading capacity.
187. Finland points out that the Report from Det Norske
Veritas identified "one type of large tanker with an air draught of
68 rnetres" and Finland goes on to state that "(i)t is hardly an
insignificant category, however" (para. 221 of the Mernorial). The
Veritus Report did not identify a type of tanker; as recounted above
it identified one tanker with a ballast air draught of 68 rnetres,
which - notably -would not prevent the vessel from passing under
the bridge. Thus, the application of the term "category" to two sister
tankers does not seem appropriate.
188. Also inparagraph 221 of the Mernorial Finland States
that the number of cargo and passenger ships for which the bridge
might cause difficulties is very small. That number is not only very
small, it is simply nil. Neither Det Norske Verirus nor Finland has
identified a single cargo or passenger ship with an air draught that
would prevent it from passing under the East Bridge or passing
through the Sound.
189. It should at this point be stressed that the Veritas Report
also noted that the highest recorded air draught for an ordinary
merchant vessel using the Great Belt in the period 1983 - 1988 was
52.5 metres, and that approximately 99 per cent. of al1 vessels
" Burma Endeavourhas asister ship BurrnaEnterp(11eSle4a King) with
an airdraughtat ballast draught rnetres.passing through the Great Belt in this periodhad air draughts below
40 metres.
190. The Report from Det Norske Veritas also demonstrated
that a number of drill ships, semi-submersibles and jack-ups had air
draughts in excess of 65 metres. The Report concluded that most
drill ships had draughts that would allow them to pass through the
Sound in fair weather, if necessary with tug assistance. Most jack-
ups also had draughts that would allow them to be towed through
the Sound. The Report finally demonstrated that a few Cranevessels
had air draughts of more than 65 metres, but that most did not.
191. On the basis of the results of the Report from Der
Norske Veritas the AIS Storebeltsforbindelsen on 22 May 1989
recommended to the Minister. for Transport that the vertical
clearance of the East Bridge be established at 65 metres.
192. Before approving the precise clearance of the East
Bridge the Minister for Transport was advised that the Danish
Maritime Authority could endorse the proposed clearance of 65
metres. In its letter to the Minister for Transport of 23 May 1989
the Danish Maritime Authority referred to the findings of the
VerirasReport, and in particular to the fact that drill ships would be
able to pass through the Sound.
193. On 16 June 1989 the Minister for Transport approved a
recommendation from AIS Storebaltsforbindelsen that the vertical
clearance of the bridge be fixed at 65 metres. While a bridge with a
free clearance of 65 metres would allow al1existing ships to pass
through the Great Belt it was clear that a number of mobile
offshore drilling units would be up to 80 metres higher than the
planned bridge. The drill ships could be directed to the Sound for
passage through the Danish Straits. Regarding the jack-up and the
semi-submersible drilling rigs, theGovemment of Denmark was of
the opinion then - as it is today - that, irrespective of their
possibilities for utilizing the Sound for passage,hese units did notenjoy a right of passage under international law that could prevent
Denmark from building a bridge across the Great Belt.
194. In its Note of 24 October 1989 the Danish Ministry of
Foreign Affairs informed al1 Missions accredited to Denmark that
the vertical clearance of the East Bridge would be 65 metres, and
that the bridge would, in confotmity with international law,
maintain the free passage as in the past for al1 existing ships
navigating the Great Belt.
B. The Effectof the East Bridge on the Passage of Existing
Vessels
195. Following Finland's Application to the Court and the
Court's Order on Finland's Request for provisional measuresof 29
July 1991, the Government of Denmark decided to ask Lloyd's
Register of Shipping in London to verify whether the findings of
the Report from Det Norske Veritas were still valid, and submit a
detailed analysis of the air draught and draught of the largest
merchant vessels, special ships, drill ships, drilling platforms, and
Cranevessels.
196. In its Mernorial paragraph 220 Finland States that
"(g)eneralizations regarding ship heights worldwide can thus only
be made with some hesitation" refemng to the fact that the heights
of vessels are rarely listed in e.g., Lloyd's Register. The
Govemment of Denrnark finds that the comprehensive study
submitted by Lloyd's Register on the air draughts of the largest
vessels should meet this resewation on the part of Finland.
197. Thus, in its Report of 5 May 1992,Lloyd's Registerhas
confirrned the conclusion of the Veritas Report that al1 cargo
vessels, tankers, passenger ships, femes, naval vessels, ice breakers,
and fishing factory ships in existence could pass under an East
Bridge with a clearance of 65 metres (Annex 35). This conclusionalso applies to al1 vessels on order at the tirne of the filing of
Lloyd's Register's Report.
198. Lloyd's Register has also found that, with the exception
of three sister ships, no sailing ships have air draughts in excess of
65 rnetres. The first of these three sail assisted cruise ships were
built in 1990 - subsequent, that is, to the subrnission of the Report
by Der Norske Veriias and subsequent to the notice for tender of
the East Bridge. According to information available Club Med III
has not yet been delivered. Club Med 1 and II operate in the
Mediterranean and the Caribbean. All three ships have an air
draught of 68 rnetres and a draught of only 5.0 rnetres, which
would allow them to transit through the Sound if they were to be
utilized forcmises in the Baltic. The Club Med sail-assisted cmise
ships are due to their exceptional air draught likely to be sornewhat
restricted in their sphere of operation in a few years' tirne as the
final design of the future Messina Strait suspension bridge, which is
expected to be subrnitted to the Italian Parliament, provides for a
vertical clearance of64 rnetres, see paragraphs 457 - 462.
199. Finland has devoted sorne attention to the issue of large
passenger vessels and the possibility that they rnay in the future
have air draughts in excess of 65 rnetres. What rnay be expected
frorn future ship design is addressed in paragraphs 204- 227 in this
Counter-Mernorial. At this point it should be noted that, according
to Lloyd's Report, no passenger ships in existence or on order have
au draughts in excess of 57 rnetres.
200. In the opinion of the Governrnent of Denrnark the
findings of Lloyd's Register render Finland's observations in
paragraphs 210 -227 of the Mernorial on the effects of the Fixed
Link on passage by passenger ships, cargo ships, and Very Large
Cnide Chers irrelevant as far as existing vessels and vessels
currently on order are concerned. The East Bridge will in no way
hamper the passage of these vessels through the Great Belt. The
Reports prepared by Det Norske Veritas and Lloyd's Register
irrefutably documents that the Fixed Link across the Great Belt willnot prevent any existing cruise ship, cargo ship, or tanker from
passing through the Danish straits.
201. In paragraphs 294 -298 of the Memorial and in Annex
57 Finland has addressed the impact of the future East Bridge on
the transportation of large cranes from Finland, namely from the
Finnish Company Kone Oy, through the Danish straits.
Transportation of cranes must be distinguished from the passage of
crane vessels.The former is a land crane transported as cargo on a
barge or a heavy-lift ship to be delivered and operated at an
onshore destination. A crane vessel may be a ship, a barge or a
semi-submersible with a permanently installed crane to be employed
at seaprimarily for assisting during the transportation, installation
and operation of fixed offshore structures. Crane vessels proper and
their possibilities for passage through the Danish straits in the future
will be addressed separately in Chapter V111.
202. The cranes transported by Kone Oy are land cranes.
These cranes are thus merely cargo on the barge or the heavy-lift
vessel, albeit quite tall cargo. A legal argument that a 100 metres
tall land crane towed on a barge should in itself, as a piece of
cargo, enjoy a right of passage under international law can hardly
be sustained. Irrespective of such legal considerations the fact
remains that Kone Oy's transport of cranes through the Danish
straits will notbe prevented by the future East Bridge. Since the
cranes although tall are not very heavy, the draught of the vessel
transporting thecrane(s), be it a barge or a heavy-lift vessel, will be
limited and the transport will invariably be able to pass through the
Sound. This has not been disputed by Finland, and a fair number of
Kone Oy's crane transports have indeed utilized the Sound. For
purposes of illustration it may be noted that the heavy-lift ship with
four cranes shown on page 100 of the Memorial has a registered
maximum allowable draught at full load of 6.8 metres. The Report
from Lloyd's Register demonstrates that transportation barges,
which may carry cranes, oil rigs and other heavy and tall cargo, can
go through the Sound with loads of up to 90,000 tonnes before the
draught of the barge exceeds the safe draught in the Drogden
contracted for. The legal merits of this argument will be addressed
in Chapter III, Part Iof this Counter-Memorial. Suffice it here to
Say that the Government of Denmark disputes that such an
obligation exists.
207. Underlying Finland's legal argumentthat the Fixed Link
across the Great Belt must also respect the right of passage of
reasonably foreseeable vessels is of course an assertion of fact. It is
an assertion of fact that the East Bridge with its vertical clearance
of 65 metres will prevent the future passage of reasonably
foreseeable ships through the Great Belt, see e.g., Finland's
Memorial paragraphs 160, 218, 226, and 232 -241. Notwithstand-
ing the invalidity of Finland's legal argument, this section will
examine the merits of the Finnish contention purely as a point of
fact; are reasonably foreseeable vessels likely to have air draughts
in excess of 65 metres?
208. At the request of the Government of Denmark, British
Maritime Technology (BMT)33has addressed this topic in a report
dated 6 May 1992 (Annex 36). On the basis of the findings of
British Maritime Technology Ltd. the anticipated trends in future
design, particularly with regard to air draught, of various categories
of vessels are addressed in the following paragraphs.
209. Nowhere does Finland define what is meant by
"reasonably foreseeable". The Govemment of Denmark assumes
that the mere physical possibility that a ship with dimensions
exceeding those known today may be built is not sufficient to
establish reasonable foreseeability, and that a higher degree of
probability is required. Obviously, the time span to be considered
cannot be the 100 - 150 years suggested by Finland refemng to the
estimated life-time of the East Bridge. If a prediction on the future
design of ships is to prove meaningful, it must be limited to an
31 British Maritieechnologyis a large groupof companiesone of which,
BMTConec Ltd., afirm of consultingengineersandnavalarchitects.hasprepared
theRepon. Channel in the Sound. An average jack-up ng weighs approximately
15,000 tonnes, and a land crane as shown on page 100 of the
Mernorial less than 1,000tonnes. Transportation barges will thus be
able to take any type of ta11cargo with heights in excess of the
clearance of the East Bridge to and from the Baltic through the
Sound.
203. Lloyd's findings on the draughts and air draughts of
mobile offshore drilling units and crane vessels will be addressed in
Chapter VI and Chapter VIII.
C. The Effects of the East Bridge on the Passage of Future
Vessels
204. In its submission Finland has asked the Court to
adjudge and declare that there is a right of free passage through the
Great Belt extending not only to existing vessels and offshore units
but also to "reasonably foreseeable ships".
205. Finland observes that the bridge is expected to have a
life span of 100 - 150 years, and that Denmark should therefore
take foreseeable trends in ship design into account. Finland then
ventures to state that "there are many kinds of ships under
construction or design whose dimensions vastly exceed the height
of 65 metres" (para. 5, p. 5 of the Memorial). Finland's assertion is
clearly erroneous. As has been demonstrated, no ships with air
draughts above 65 metres were under construction when the East
Bridge was tendered, and since then only three sailing ships with
air draughts above 65 metres that may comfortably sail through the
Sound have been built.
206. According to Finland's argument on "reasonably
foreseeable ships", Denmark must in its design of the Fixed Link
across the Great Belt, particularly regarding the venical clearance of
the East Bridge, safeguard the passage not only of existing vessels
but ais0 of vessels not yet designed, much less constmcted or even
assessment of whether existing design ideas, judged by today's
design parameters, are viable and realistic, and whether these design
ideas are more likely than not to reach fmition within the
irnrnediate years to corne.
210. Based on the opinions stated by British Maritime
Technology Denmark submits that it is not likely that passenger
vessels, cargo ships, tankers, and naval vessels or any other ship to
be built in the foreseeable future will have air draughts in excess of
65 metres. It rnay at any rate be safely assumed that no future
vessel, which rnay meaningfully be characterized as "reasonably
foreseeable", will have an air draught above 65 rnetres. The
prospects for each category of vessel in question are sumrnarized as
follows.
Passenger Vessels
211. In paragraph 213 of the Memorial it is stated that
"(m)odem passenger vessels are increasing their height as the need
to take on board ever larger number of passengers grows", and in
paragraph 215 Finland asserts that there has been "a clear trend
during the past decades to increase air draughts". In paragraph 232
it is mentioned that the Finnish KvŒrner Masa-Yards is actively
considering a cmise ship with an air draught of 70 rnetres.
212. Despite Finland's claim that the air draught of cmise
ships has steadily increased, the fact remains that the largest cmise
ships ever built, Normandie, Queen Mary and Queen Elizabeth (air
draughts between 60 and 62 metres) were delivered in 1935, 1936,
and 1938 respectively. None of these ships are in active use today.
Since World War Ilonly a few cniise ships have been built with air
draughts above 50 metres and only a very few sailing ships have
had air draughts above 60 metres, see e.g., Annex 42 to the
Memorial. Annex 37 to this Counter-Memorial is a diagram
showing the air draughts of the largest passenger vessels in the
twentieth century. (Sailing ships have low draughts, which permit
passage through the Sound, and are therefore not included in thisdiagram.) Thus, contrary to Finland's allegation, the air draughts of
very large cruisers have decreased rather than increased over the
past 50 - 60 years.
213. Finland seems to consider it likely, or al least possible
that passenger ships with air draughts in excess of 65 metres will be
constructed in the foreseeable future, see e.g., paragraph 232 of the
Memorial. However, the Report from BMT suggests that for a
variety of reasons it seems unlikely that future cruisers and other
passenger ships will have air draughts above 65 metres.
214. Firstly, the dimensions of the Panama Canal have
hitherto strongly influenced the main dimensions of large passenger
ships as well as cargo ships. This means that the air draught of
these ships cannot exceed the 60 metres free clearance maximum of
the Thatcher Ferry Bridge. The clearances of the bridges at the
entrances to the ports of New York (66 metres), San Francisco (67
metres), and Istanbul (64 metres) are other obvious design
parameters. The substantial building costs of a modem cruiser and
the importance of ensunng a geographically unrestricted sphere of
operation are likely to deter investors from building cruisers that
cannot cal1 in the above-mentioned ports or make a swift and
inexpensive transfer between the Pacific and the Atlantic oceans
through the Panama Canal. It is important to note that even the few,
so far unexecuted, designs for extremely large cruise ships that have
been drawn up and seriously considered for implementation in
recent years had air draughts below 65 metres precisely for the
reasons mentioned above.
215. Secondly, the height and the breadth of a vessel are
inter-dependent factors. In simple terms, a great height or air
draught of a vessel presupposes a large breadth. A very wide ship
will invariably have a tendency ta roll with stronger accelerations,
which is a highly undesirable feature in a cruise ship. In addition, a
ship with an extreme air draught e.g., in excess of 65 metres, will
have many cabins and passenger areas high above the centre of
gravity at an altitude where the horizontal movernents of thevesselreach their peak causing discomfort to the passengers. Since there is
thus a limit to how wide a cmise ship may be, there is a
corresponding limit to how tall the ship may be.
216. Thirdly, in marked contras1 to what Finland asserts in
paragraph 237, BMT concludes that economies of scale have not
been demonstrated by the few designs for very large cruise ships
that have been drawn up. On the contrary, when the vessel reaches
a certain size the constmction price per passenger apparently
increases rather than decreases. Since the construction costs are
considerable to begin with and the reduced flexibility of operating
one huge rather than two smaller cruise ships is very significant,
economic considerations will generally militate against rather than
favour the constmction of mammoth cmisers.
217. The development of the World Ciîy (formerly Phoenix)
project illustrates important limitations regarding the design of
mammoth cmisers and may provide the best possible basis for
predictions regarding the dimensions of future cmisers. World Ciîy
was designed to be the world's largest cmise and hotel ship in the
early 1980s (illustration in Annex 36). For the past decade the
project has remained the most realistic of the mammoth cmiser
designs, and intense efforts have been exerted to transfom the
concept from mere design to actual constmction; so far to no avail.
218. Several explanations may be given for the apparent
demise of the World Ciîy and similar projects: the immensity of the
required investment, the logistics of operating a ship with aroun5
- 6,000 passengers, the sea behaviour of a structure of this size, the
absence of any economy of scale, and the scarcity of available
docking and port facilities.
219. World Ciry and Ulrimate Dream, another design for a
huge cmise vessel, are practically the only projects which have been
developed beyond the mere initial design stage (illustration in
Annex 36). For purposes of this case it is pertinent to note that-
despite their unprecedented size - both these projects have air draughts below 65 metres. A statement from World City
Corporation in New York attests the fact that the clearance of the
Verrazano Narrows Bridge in New York served as a primary design
consideration and in fact dictated the air draught ofWorld City
(Annex 38). The UltimareDreamwas designed by Knud E. Hansen
AIS, a Copenhagen firm of consulting naval architects and marine
engineers. A statement from Knud E. Hansen AIS (Annex 39)
confirms that the ability to pass under the Golden Gate Bridge and
the Bosphoms Bridges (which have vertical clearances similar to
and below that of the East Bridge) served as a primary design
parameter for the UltimareDream. Both designs have masts that
may be lowered to attain the required air draught. Presumably,
constmcting a very large cmise ship that cannot dock at e.g., the
port of New York is an economic risk no cmise ship operator
would care to take.
220. Neither WorldCitynor UliimateDreamor other designs
for cmise ships of this unprecedented size have been carrieci to
completion. To suggest that cruise ships with even larger
dimensions than these, in particular with higher air draught than
these, are likely to be built, let alone that such units may be
characterized as "reasonably foreseeable ships" is unfounded.
221. Based on the estimates set out in the Report from BMT,
Denmark is of the opinion that the probability that the passenger
ships tobe constructed in the corning years will have air draughts
in excess of 65 metres is negligible or non-existent. Consequently,
even assuming that Denmark was obliged to make the East Bridge
conform to the expected trends in future ship design, which is
disputed, "reasonably foreseeable" passenger vessels are not
expected to have an air draught exceeding the clearance of the
future East Bridge. Thus, Finland's contentionthat the design of the
Great Belt link violates the right of passage of future passenger
vessels lacks factual basis. Tankersand Cargo Ships
222. Even the very largest of tankers with a dead weight
tonnage in excess of 500,000 do not have air draughts above 65
metres. In any case, these ultra-large cmde carriers usually have
loaded draughts of around 25 metres preventing passage through the
Danish straits to the Baltic in fully loaded condition. Baltic ports
are therefore served by tankers approximately one third of the size
of these ultra-large carriers. There is no reason why cmde carriers,
particularly no1 of the relevant Baltic size, should be constmcted
with air draughts above 65 metres. The rationale for such ta11cmde
carriers simply cannot be demonstrated. In fact economic
considerations speak in favour of utilizing smaller and mid-size
tankers as they are more flexible and thus more economical than
ultra large cmde camers.
223. Even the largest tankers Io be constmcted in the future
are expected to have air draughts below that of the clearance of the
East Bridge. According to size-influencing safety regulations for
tankers recently adopted by the International MaritimeOrganization
new tankers are to have double hull which will restrict the load
capacity of the tanker'4. The largest, future tankers are expected
not to exceed a dead weight tonnage of 350,000 DWT. It may
therefore be fairly safely assumed that future tankers will not have
air draughts above the largest tankers in existence today, which
weigh more than 550,000 DWT.
224. Cargo ships have recently been built with air draughts
significantly above those of the previous generations. A few of
these celluar container vessels even haveair draughts exceeding 50
metres. Most existingcontainer cranes in ports are not high enough
to service these large vessels, and the vessels are thus restricted to
calling only upon ports that have invested in the necessary new
cranes. The ensuing loss of flexibility may be expected to counsel
IMO, Manne EnvironmentProtectionCornmittee,Annex 6 to Repon 32R0,
24 March1992. against the building of many container ships of this class, let alone
even taller cargo ships. The highest possible air draught for future
container ships will also be restricted by the strength of the
containers which are stacked on top of each other on the ship. In
the Report from BMT the maximum attainable air draught of a
future container vessel is calculated to be 62 - 65 metres. The
loading capacity of such a vessel, however, would in the opinion of
BMT be of such a magnitude to render it economically unfeasible
for use in the Baltic.
225. Finland has noted that sail-assisted propulsion may be
an attractive alternative for e.g., bulk carriers, see parag218h of
the Memorial. Experiments have been carried out with wind-
assisted tankers and cargo ships, anda number were built in 1970s
following the oil crisis. Despite the ngging, none on these vessels
had air draughts in excess of 65 metres. The vessels have
apparently not proved economjcal judging from the fact that sail
propulsion has not been introduced on any major scale, the sizable
test period notwithstanding.
Naval Vessels
226. Although some older naval vessels and a single modem
air craft camer have air draughts above 50 metres, there has in
recent decades been a tendency to build smaller, more versatile
units with much lower air draughts. These small craft are
considered more viable due to the relative modesty of the building
costs and the absence of the need for a fleet of support ships.
Further, having several smaller vessels instead of one large vessel
increase the operational flexibility and reduce the vulnerability of
the fleet as a whole. Nothing suggests that futurenaval vessels will
have air draughts exceeding or even approaching the free vertical
clearance of the East Bridge. Conclusion
227. Finland has contended that the design of the East Bridge
across the Great Belt violates the right of passage of reasonably
foreseeable ships. Denmark disputes that international law imposes
a legal obligation of this nature upon Denmark. This legal argument
notwithstanding Finland must be required to show that reasonably
foreseeable ships will have air draughts of more than 65 metres.
Finland has failed to do so. On the contrary, as has been
demonstrated above, estimates made on the basis of existing design
parameters reveal that the ships that will be constmcted in the
foreseeable future are very unlikely to have air draughts exceeding
65 metres, see Annex 36. CHAPTERV.
THE PASSAGEOF DRILL SHIPS,DRILLING
PLATFORMS,AND CRANEVESSELSTHROUGHTHE
DANISHSTRAITSAFTERTHE CONSTRUCTIONOF THE
EASTBRIDGE
A. Introduction
228. Finland has failed to demonstrate that the construction
of the East Bridge with its vertical clearance of65 metres will
prevent any existing ship, be a passenger vessel, cargo ship, ultra-
large tanker, naval vessel or other ship, from passing through the
Danish straits.
229. This is hardly surprising as the object of Finland's
concem since its first contact with the Danish authorities on this
matter in July 1989 has been based on the impact of the Great Belt
Project upon the passage of Finnish offshore structures through the
Danish waters. Safeguarding the passage of offshore units through
the Great Belt was indeed the sole objective of Finland's Request to
the Court for the Indication of Provisional Measures.
230. Although Finland has argued that the mere possibility
that future ships may have air draughts exceeding that of the Great
Belt bridge cannot be disregarded, it must be ernphasized that,
viewed solely on the facts, the future East Bridge wilbe of no
consequence whatsoever to the passage of existing ships through the
Danish straits. Only mobile offshore drilling units and Cranevessels
have air draughts above 65 metres, and in order to establish what
problems, if any, the East Bridge will pose to Finland the focus of
the presentation of the relevant facts of the case will concentrate on
the future possibilities for the passage of offshore craft through the
Danish straits. 231. Finland has argued that if the East Bridge were to be
built in its plannedform "the offshore industry in Finland would be
finished", see paragraph 18, page 8 of the Memonal.
232. In the period 1972 to the present the Finnish offshore
industry, notably Rauma-RepolaOffshoreOy, has delivered a total
of 22 drill ships, semi-submersibles and jack-up drilling platforms,
whereas the now defunct Finnish shipbuilding Company Warrsila
(continued as Kvarner Masa Yards) has built crane vessels.
233. According to Finland, the competitiveness of this
offshore building industry is threatened as the immediate effect of
the East Bridge will be to close off passage through the Great Belt
for mobile offshore drilling rigs, see page 83, Section D of the
Memorial. Finland further claims that transit through another part of
the Danish straits, the Sound, is not a technically relevant option,
contending that transport of offshore craft through the Sound is
physically impossible, see paragraphs 198and 203 of the Memorial.
Finally, it is asserted that having temporarily to dismantle either the
top of the drilling tower to pass under the East Bridge or remove
the thmsters to reduce draught and allow passage through the Sound
would severely damage Rauma-Repola Offshore's competitiveness
on the international market and simply not be feasible from an
economic and logistical point of view (paras. 285 -293).
234. Denmark disputes Finland's premisesand, consequently,
also Finland's conclusions.The first premise disputed by Denmark
is a rather fundamental one; Denmark does not concur in Finland's
view that the nght of passage through the Great Belt for ships of al1
nations can be extended to drill ships, semi-submersibles, jack-ups,
and crane vessels. This legal issue is addressed thoroughly in Part II
of this Counter-Memonal.
235. In this part of the Counter-Memorial only the validity of
Finland's factual contentionsregarding the physical possibilities for
future passage through the Danish straits for offshore units will be
examined. 236. Using Rauma-Repola's total production till now as a
basis for an evaluation of the future possibilities for transporting
offshore units from Finland through the Danish straits, it will be
demonstrated that al1 drill ships, al1 jack-ups, and most semi-
submersibles produced by Rauma-Repola could have ken
transported through the Sound instead of through the Great Belt
without requiring any technical modifications to the units prior or
subsequent to passage.
237. A few of aum ma-Repo semaissubmersible platforms,
becausc oftheir draught, could not have passed though the Sound
where the guaranteed water depth is 7.7 inetres. However, these
units could have passed the Sound had their propulsion thnisters,
which increase the draught of the unit, been fitted after passage
through the Sound so as to allow passage. Another possibility
would be to take off the top of the drilling tower of the unit prior to
passage under the East Bridge, for final assembly north of the
bridge. Denmark will show that these modifying operations are
perfectly feasible, have been executed as a routine matter elsewhere
in the world, and are much less time-consuming and costly than
argued by Finland.
238. In summary, drill ships, jack-up rigs, semi-submersible
rigs, and crane vessels may, after constmction of the East Bridge,
be transported through the Danish straits in one of the following
ways:
(a) Transit through the Sound without technical
alterations to the unit (drill ships, jack-ups, semi-
submersibles, and crane vessels).
(b) Transit through the Sound subsequent to a reduction
of the draught of the unit by relatively simple
technical modifications such as the temporary
dismantling of propulsion thrusters (semi-
submersibles). Transit through the Great Belt with the top of the
(c)
drilling tower dismantled for final assembly
subsequent to passage of the East Bndge (semi-
submersibles).
(d) Transit through the Great Belt without technical
modifications after having ballasted the unit to the
deepest draught possible in order to reduce air
draught and allow passage under the East Bridge
(semi-submersible drilling rigs and semi-submersible
crane vessels).
239. In paragraphs 243 - 259 the relevant types of offshore
units, their number, and typical dimensions will be briefly
descnbed.
240. A later part of this Counter-Memonal, Chapter VI, "The
Sound is a Feasible Route for the Passage of Offshore Units
through the Danish straits", will consider in detail the conditions for
navigation in the Sound and address the past and future passages of
offshore craft through the Sound (item (a) above).
241. The possibility of modifying offshore ngs by removing
thmsters or dismantling the top of the drilling tower to facilitate
passage through the Danish straits (items (b) and (c) above) will be
analyzed in Chapter VII.
242. Finally, Chapter VI11 will demonstrate that al1 crane
vessels in the world, Save four, may - without any technical
modifications to the units - either transit the Great Belt, in some
cases ballasted to the deepest draught possible to reduce air draught
and make passage under the East Bridge possible (item (d) above),
or go through the Sound. B. Mobile Offshore Drilling Units
243. Mobile offshore drilling units, often referred to as
MODUs, are structures designed to moveor be moved in a floating
condition from one offshore site to another.On site they drill either
in floating condition or with the legs of the unit standing on the
seabed. MODUs are usually divided into three distinct designs; drill
ships, semi-submersible units, and jack-up units. Common to al1
three designs is the apparatus for drilling placed on the unit, notably
the drill tower, or derrick, which handles the drill pipes and
performs the actual drilling. Basically, the same types of derricks
are installed on drill ships, semi-submersibles and jack-ups, and
these drill towers come in standard dimensions, usually with a
demck height of 49 - 55 metres. Most MODUs have a total air
draught of more than 65 metres, as the height of the derrick
substructure and the height from the water line to the main deck
where the derrick is placed must be added to the derrick height to
determine the actual air draught of the unit.
244. All three types of MODUs have been produced at
Rauma-Repola Offshore Oy. In addition Rauma-Repola hiis
produced two Multi-purpose Support Vessels (often referred to as
MSV's). These Multi-purpose Support Vessels are in principle
semi-submersibles designed to undertakevarious tasks in connection
with hydrocarbon exploration and production. Such units do not,
however, have a derrick and will almost invariably have an air
draught, at least in ballasted condition, below the65 metres free
clearance of the East Bridge.
245. The discussion on the passage of offshore craft through
the Danish straits may be restricted to MODUs. Production
platforms are often designed to be permanent fixtures on the sea
bottom. The substructure being the largest part of the platform
which extends from above the sea surface to the sea bed is
transported from the fabrication yard to the offshore installation site
in one piece. No such substructures have been produced in the
Baltic. Other production platforms are made of concrete and aretowed floating in one piece to their location. These platfoms have
draughts of up to 200 metres and are thus already precluded from
making any kind of transit through Danish waters.
DrillShips
246. The drill ship is a surface type dnlling unit. A drill ship
has a regular ship hull and is in fact often a converted cargo carrier.
Drill ships float when dnlling and may operate both in deep and
shallow water. Although anchored or kept in place by dynamic
positioning devices (thmsters), a drill ship in operation will have an
inferior stability compared to a regular platform. The advantage of
drill ships is that they navigate as regular ships and maythus make
long voyages more quickly and inexpensively than semi-
submersible and jack-up platfoms. Further, they have extensive
stonng capability, and are thus often used in areas with limited
supply facilities.
247. The draughts of drill ships vary considerably depending
on the amount of drill pipes, drilling equipment and general load
carried. The operational or maximum draught of more than 80 per
cent. of al1drill ships lie between 6 and 8 metres (Annex 35). The
minimum transit draught of a drill ship is always significantly less
than the operational draught, often up to 2 metres less, and the
minimum transit draughts of most drill ships thus vary from 5 - 7
metres. Owing to the fact that standard derricks are employed, the
air draughts of drill ships are quite uniform, approximately 75
metres at transit draught. The exact air draught of a drill ship is
found by adding to the derrick height the height of the drill ship
from the water line to the base of the derrick, usually a distance of
15 -20 metres. The breadth of a drill ship is that of a regular hull
and rarely exceeds 25 metres. Denmark agrees with Finland that the
dimensions of future drill ships is not expected to undergo any
radical change (para. 170of the Memorial), and any increase in the
draught is considered unlikely.Figure 8: RAUMA-REPOLDARILLSHIPVALENTISHASHIN,
WHlCHPASSEDTHROUGHTHE SOUND IN ~CTOBER
1985location transfers, semi-submersibles are generally towed over
longer distances. Semi-submersibles are used for drilling in deeper
waters i.e., with a typical minimum water depth requirement,
depending on design and environment, ranging between 40 - 100
metres.
252. According to Offshore Data Services there are currently
168 semi-submersible drilling platfoms in existence. 108 of these
rigs are currently drilling, whereas 60 are without con tract^'^.
Most semi-submersibles have registered transitdraughts of between
6 and 8 metres. However, this registered transit draughtis often not
the lightest draught attainable, as it is usually listed with a
displacement that includes al1equipment and materials required for
drilling purposes Le., a variable load which it is neither common
nor necessary to carry e.g., on a delivery voyage from a yard:
253. As in any other unit, the air draught of a semi-
submersible is a function of the draught, and as the draught of a
semi-submersible may vary from around 6 metres in transit
condition up to a deepest draught of more than 25 metres, the air
draught varies accordingly. In transit condition the air draught of
semi-submersibles range from approximately 75 to 100 metres. The
breadth of a modem semi-submersible rig varies. from
approximately 60 to 100 metres. According to Lloyd's Register
about two thirds of al1semi-submersibles in existence have transit
draughts of less than7.2 metres in fully loaded condition.
254. Rauma-Repola Offshore Oy has produced 14 semi-
submersible drilling rigs and 2 semi-submersible Multi-purpose
Support Vessels. It will be demonstrated that al1 Rauma-Repola
built semi-submersibles and most other semi-submersibles in the
world may be transported through the Sound. MostRauma-Repola
units could be towed through the Sound either without any
modification to the rig at al1or subject only to an adjustment of the
36OffshoreRig LocotoVol. 19No. 5, May 1, 1992. variable load carried on the rig.A very few Rauma-Repola semi-
submersibles would have to undergo a technical modification to be
able to be towed through the Sound or under the East Bridge, either
in the form of atemporary dismantling of the thrusters of the ng or
in the form of a final fitting of the top of the derrick after passage
of the East Bridge. The Multi-purpose Support semi-submersibles
do not have derricks and thus will not have problems passing under
the future East Bridge.
255. A jack-up is a self-elevating drilling platform. During
transport of the rig the hull of the platform floats while almost the
full length of the legs of the rig protmde above sea level. Once on
site at the drilling location, the legs will be lowered to stand on the
seabed, and the hull will be jacked up to rest at a safe distance
above sea level. The bottom of the legs are fitted with so-called
spud cans to ensure a safe penetration into the seabed. On modem
jack-up drilling rigs the end of the legs including the spud cans may
be retracted into the hull of the jack-up during transport and thus do
not increase the transit draught of the platform. Drilling is
performed using a demck installed on the platform.
256. Depending on design and environmental conditionsjack-
ups are used for drilling in water depths from a few metres to well
over 100 metres. The length of the legs of a self-elevating platform
determines the air draught of the unit, and are usually in the range
of 100-150 metres, but some units may have air draughts of up to
170 metres. The breadth of the jack-up unit may be close to 100
metres.
257. Large modem jack-ups never have their own propulsion
and are normally transported in floating condition towed by tugs
(wet tow). The floating transit draughts of the majority of the jack-
up platforms are between 5 and 7 metres. Jack-ups may also be
transported on barges pulled by tugs (dry tow). This transport mode
may give an even smaller transit draught than the wet tow descnbedabove. For very long, often trans-oceanic, moves self-elevating
platforms are sometimes carried on heavy-lift ships. The heavy-lift
vesse1will have a draught that is significantly deeper than the jack-
up itself would have when towed. As stated by Finland, the
draughts of jack-up rig have not changed much over the years (para.
181 of the Memonal), and in fact modem jack-ups tend to have
lesser transit draughtsthan older ones. This lesser draught may be
ascribed to the fact that practically al1 modem jack-ups have
retractable spud cans as well as to the fact that a large draught
limits or prevents the use of heavy-lift ships for transporting the
jack-up units.
258. With a total number of 399, jack-up platforms make up
around two thirds of the combined MODU fleet (which counts a
total of 603 units). Out of these jack-ups, 249 units are working
while 150units currently remain idle. For MODUs as a whole there
is as of May 1992 a surplus rig capacity of 37 per cent3'.
259. Rauma-Repola has produced 2 jack-ups independently
and one in cooperation with the Vyborg Shipyard in Russia.
Another joint Rauma-RepolalVyborg jack-up is still under
construction in Vyborg. It will be demonstrated that al1 self-
elevating platforms built by Rauma-Repola and al1 other large
modem jack-up platforms in the world have draughts that allow
them to be towed through the Sound.
C. The Transport of Mobile Offshore Drilling Units
260. MODUs are characterized by their ability to move, or
more often to be moved, from one drilling location to another.
MODUs are primarily used for hydrocarbon exploration purposes,
but also for production drilling in situations where the brevityof the
drilling assignments in one place makes it economically more
"Ofl~horeRig LocororVol. 19, N5,May 1, 1992.Figure10: JACK-URIG INWET TOW advantageous to charter a mobile unit instead of using fixed drilling
equipment.
261. The most important offshore areas in the world are
widely dispersed across the globe. In terms of the number of units
currently dnlling, the most important offshore areas are, in order,
the North Sea, the Gulf of Mexico, South East Asia, West Africa,
Venezuela, the Arabian Gulf, the Indian Subcontinent, Brazil, the
Red Sea, the former USSR, the Far East, and the Mediterranean3'.
Depending on the market situation, MODUs may make transfers
from drill sites in one part of the world to assignments in another
part of the world. Further, MODUs are often constructed far from
the location where they will be put into operation. Finally, MODUs
make frequent local transfers between different drillingsites within
the same locality.
262. Basically, MODUs may be transported in three different
ways; by independent navigation under their own propulsion, by
being towed either on a barge or, more commonly, floating on the
water, or by being camed (as cargo) on a specialized heavy-lift
ship. The transportation method applied in a specific situation
depends upon a number of circumstances, including the type of
unit, the distance to be covered, the navigational conditions of the
stretch of water to be crossed, economic considerations, and
whether time is of the essence.
lrtdependentNavigation
263. Drill ships have their own means of propulsion and may
sail under their own power on short as well as on trans-oceanic
moves. Some semi-submersible platforrns also have their own
means of propulsion. Depending on the type of thruster installed on
the rig, these propeller-dnven thrusters may be used for dynamic
positioning of the ng dunng drilling operations and for making
''OffshoreRig LocarorVol. 19No.5,May 1, 1992
89shorter, unassisted transfers. Semi-submersibles with thrusters do
not efficiently cover longer distances under their own propulsion
and are therefore almost invariably towed by large tugs.
Towage
264. Towage is by far the most common way of transporting
jack-up and semi-submersible platforms. Even semi-submersibles
with their own means of propulsion are usually towed for longer
moves. One or two tugs will normally be used to tow a jack-up,
which will either be placed ona barge (dry tow) or more frequently
float on the water (wet tow). A barge canying, a jack-up will have
a lesser draught than would the jack-up itself floating on the water.
Semi-submersible units will normally be towed by one or two tugs
on its own hull (wet tow). Semi-submersible units are not carried
on barges, although very occasionally carried on heavy-lift ships.
265. Towage of MODUS is, as with any other offshore
operation, subject to the influence of weather conditions. A MODU
tow is not commenced unless weather conditions are suitable and
the forecast is favourable. Any tow is carefully planned in advance
e.g., to ascertain that there are suitable holding areas where the unit
may "wait on weather" if conditions should deteriorate during the
transport. A jack-up may lower its legs to rest on the sea bed and a
semi-submersible may be ballasted down to its "suwival draught".
266. Finland has emphasized that towage of a rig is more
hazardous than carriage by heavy-lift ship (para. 200 of the
Memorial). Denmark agrees that on a long, open-sea transport
where severe weather conditions may be encountered heavy-lift
transport involves fewer risks than towage of a jack-up ng does.
But such considerations of safety do not apply to towing a rig
through the Baltic Sea and through the Sound, which is well
sheltered and where safe waiting areas are within easy reach in case
the weather detenorates. 267. The rig accidents referred to by Finland in paragraph
200 of the Memorial al1occurred in open sea under severe weather
conditions not experienced in the Danish Straits and are therefore
irrelevant for purposes of considering Denmark's proposal for
towage of MODUSthrough the Sound.
Transportby Heavy-Lift Ship
268. For very long, e.g., ocean transports, jack-ups are
frequently carried on heavy-lift ships. Semi-submersibles are
transported this way less frequently. The heavy-lift ship is able to
ballast down so that its cargo deck is undenvater. The jack-up or
semi-submersible unit is then floated over the cargo deck and the
heavy-lift vesse1 is deballasted to lift the jack-up or semi-
submersible unit out of the water. The unit is then secured to the
deck of the heavy-lift ship before the commencement of the
transportation voyage.
269. Camage by heavy-lift ship is.faster and usually safer
than towing a jack-up across a deep-water ocean where there will
neither be places to seek shelter nor shallow water IO allow a
suwival lowering of the legs to wait out critical weather conditions.
The disadvantage of heavy-lift ships is that they are expensive to
hire, approximately USD 20,000 per day, and that loading/unloading
and securing/unsecuring of the platform on the heavy-lift ship is in
itself time-consuming. Invariably, heavy-lift ships will only be
employed for longer hauls. In addition, according to Lloyd's
Register of Shipping there are only 9 registered heavy-lift ships
available worldwide leading to long transfers and thereby high
mobilization costs. A rig owner's decision on whether to opt for a
heavy-lift ship or for towage of the rig will depend primarily on
economic aspects, and the decision will be made subsequent Io a
concrete analysis of costs. Finland's statementthat jack-up rigs are
towed only for distances of up to 1,000 nautical miles (para. 188 of
the Memorial) is not correct, as there are many examples of jack-
ups being towed for much longer distances. 270. A heavy-lift ship carrying a MODU may have a
significantly deeper draughtthan the MODU it canies but this will
be dependent on the size and weight of the MODU and the type of
heavy-lift ship. The draught of a typical heavy-lift ship carrying a
jack-up is typically about 8 to 10 metres. The loading and
unloading of a platform requires an even larger draught to enable
the heavy-lift ship to submerge its cargo deck sufficiently to allow
the MODU to float over it.
271. Heavy-lift ships are not normally used for shorter
transfers in sheltered waters due to the time and cost involved in
mobilizing a heavy-lift vesse1 as well as the fact that the safety
considerations apply to amuch lesser extent, if at all, to towage in
sheltered waters.
272. While it is obvious that camage by heavy-lift ship is
faster than towing a MODU, there are disadvantages of using
heavy-lift vessels as well. In a number of instancesjack-ups carried
on heavy-lift ships have sustained damages. Accelerations on the
unit due to motions of the heavy-lift ship may be higher than in a
wet tow. Damage to the legs, jacking mechanisms and hull
structures of jack-ups when carriedon heavy-lift ships has occurred.
273. The number of yearly heavy-lift transports of MODUS
is not precisely known. However, a check with the various heavy-
lift transportation contractors indicates that the total number of
transports is about 20 per year. These relatively few transports
compares with hundreds of yearly movements under tow of the
world's 399 jack-ups. CHAPTERVI.
THE SOUNDIS A FEASIBLEROUTEFORTHE PASSAGE
OF OFFSHOREUNITS
A. Introduction
274. The Baltic Sea is connected to the North Sea by three
straits anda man-made canal. Since the present case is very much
concerned with the alleged right of passage of exceptionally tall,
Baltic-built offshore structures interest has focused on the Great
Belt and the Sound.
275. Since Finland's first approach to the Government of
Denmark in this matter Denmark has consistently argued that the
Sound provides a viable route of passage for the Finnish offshore
units transiting from theBaltic to the North Sea (para. 516 of this
Counter-Memorial). Finland has declined to consider the Sound as
an option for the transport of offshore structures. The Finnish
Government primarily advariced an argument of impracticability. or
even impossibility, of passage from a factual point of view. This
contention will be addressed in the following.
276. In Chapter III of the Memorial Finland has argued that -
as a point of fact - the Sound is not a relevant navigational
alternative to the Great Belt.inland refers to three arguments as a
basis for this conclusion; the depth of the Sounds insufficient, part
of the main navigational routein the Sound passes through Danish
interna1 waters, and finally, that the planned fixed link between
Denmark and Sweden may adversely affect navigationin the Sound.
Further, in paragraphs 198 - 206 of the Memorial Finland has
attempted to demonstrate that, especially for offshore structures
transiting from the Baltic to the North Sea, the Sound is not a
technically relevantoption. For these offshore units,Finland asserts,
"using the Sound is physically impossible". 277. The Government of Denmark cannot endorse Finland's
description and conclusions regarding the Sound. This Chapter VI
will seek to demonstrate in detail that the Sound is not only a very
important, and in some respects the primary, navigational route
between the Baltic and the North Sea, but also that,despite the fact
that the depth of the Sound is only about half that of the Great Belt,
it is still a perfectly feasible transit route for drill ships, semi-
submersible and jack-up platfoms as well as Cranevessels. It will
be documented that almost al1Rauma-Repola built MODUs could -
without any technical modifications to the rigs - have been
transported through the Sound; a finding corroborated by the fact
that a number of MODUs built at Rauma-Repola have in fact
utilized the Sound rather than the Great Belt for passage between
Finland and the North Sea.
B. Geography
278. The Sound (Sundet) is delimited from the Baltic Sea
proper to the south by a line from Falsterbo in Sweden to Stevns
Light on Zealand and from the Kattegat Sea to the north by a line
running from Gilbjerg Hoved on Zealand to Kullen in Sweden (Map
IV). The length of the main navigational north-south route through
the Sound is approximately 56 nautical miles.
279. Transiting vessels may pass to the Westand to the east
of the Swedish island of Ven in the northern part of the strait. In
the southern part of the strait, the navigational route splits into two.
One passes between the Island of Saltholm and the Swedish coast
through what is known as the Flinte Channel (Flinterannan). Most
international traffic of ships (approximately 87 per cent. of al1
vessels) passes through the deeper Drogden Channel (Drogden
Rende) between the Westcoast of Saltholm and the east coast of the
island of Amager.
280. The route through the Flinte Channel and northwards in
the Sound passes through Swedish and Danish territorial seas,whereas the route Westof Saltholm passes through intemal Danish
waters in the Drogden Channel.
281. The water depths in the navigational routes of the
Sound Vary considerably, and the shallowest points are found
around the island of Saltholm, where the Swedish Flinte Channel
has a depth of 7.2 metres, and the dredged Danish Drogden
Channel a guaranteed minimum depth of 7.7 metres. In the
following paragraphs, focus will be restricted to the main
navigational route through the Drogden Channel.
282. The Drogden Channel is a natural channel in the
shallow chalk-bottomed waters off the southwest Coastof Salrholm
(Map IV). The Channel has a length of 5.5 nautical miles and a
minimum width of 290 metres. The channel has been dredged a
number of times and today has a guaranteed minimum depth of 7.7
metres at mean sea level. The accuracy of the charted depth in the
Drogden Channel is verified regularly by echo-sounding surveys.
283. lmmediately to the north and to the south of the
Drogden Channel the water depth increases to more than 10metres.
The water in the remaining parts of the navigational route through
the Sound is relatively deep, falling gradually to 40 metres to the
north of Helsing@r and to 14 metres to the south ofFalsterho.
284. As will be demonstrated in Chapter X, the Drogden
Channel is part of the intemational strait constituted by the Sound
and thus govemed by the Danish strait régime irrespectiveof the
fact thatit lies within the Danish straight baselines, see paragraphs
437 - 442.
C. Hydrography, Weather, Navigational Conditions a,nd Ship
PositioningSystemsin the Sound
285. In a section purportingIO show why the Sound should
be disregarded as a viable route for MODUS transiting the DanishStraits from the Baltic, Finland makes several observations on the
hydrographical and weather conditions of that strait which cal1for
clarification and rectification. Although recognizing that the tidal
variation is insignificant, Finland emphasizes that the water level in
the Drogden is subject to considerable seasonal and wind-induced
variations, see paragraph 70 of the Memorial.
286. Since the Drogden Channel is the only shallow water
area of the Sound any discussion of variation in water level should
be limited to this area, as water level fluctuations in the deep-water
areas elsewhere in the Sound are immaterial to the question of
passage39.Finland contends that the official water depth of the
Drogden Channel rnay be reduced by as much as 2 metres (para.
198). This is not correct. Variations of this magnitude are only -
and rarely - found in the deep-water areas of the Sound. The
greatest variation ever recorded in the Drogden Channel was 0.79
metres below mean sea leve14'.Such extrerne fluctuations are not
only rare but very brief, and may be predicted 48 hours in advance.
287. The water level and thus the water depth at the time of
passage is obviously a factor that the master of a ship will have to
take into account anywhere in the world whenshallow waters are to
be passed. In the Drogden, a master will have better knowledge of
the current water depth than in most other waters. Firstly,
approaching vessels may by radio request information on the water
level in the Drogden which is measured every thirty minutes.
Secondly, the Drogden is a dredged chalk channel where
sedirnentation does not occur, and it is probably the most closely
surveyed area in the Danish waters, which ensures that the charted
''The figureson waterlevel variations qby Finlandin Note 2 on p. 27 of
the Memorialdo not applyto theDrogden.The variationof 0.82 metresappliesto
Helsing 23rnauticalmiles nonh of the Drogden,and thefigure0.88 metresrefers
to Kmge 18 nauticalmiles Westof the Drogden. Thewater depthsin these two
locationsareabout25 metresand8 metres.respectively.
UnitedStates Defense MappingAgency, Pub. No. 190, 3rd ed., page 124,
table9. official minimum depth of 7.7 metres at mean sea level is entirely
reliable. It may then be concluded that the water level variations in
the Drogden proper are minimal, predictable, and of negligible
consequence to commercial ships and offshore structures traversing
the strait.
288. Finland suggests that the occurrence of ice during winter
months make navigation through the Sound difficult and Statesthat
the problems caused by ice are significantly greater in the Sound
than in the Great Belt (para. 72 of the Memonal). In fact ice rarely
presents problems to navigation in Danish waters4'. Within the
past 20 year period (1971 - 1991) ice-strengthened vessels have
experienced minor problems in only three years. In each of those
three years, the number of days when ice posed difficulties to
navigation was higher in the Great Belt than in the Sound4'. In
none of these years did ice prevent the passage of ice-strengthened
vessels through the Sound.
289. In passing, it might be noted that the winters and theice
conditions in the waters off Finland are much more severe than in
Danish waters. At least in Febmary and March the entire coastal
waters of Finland are normally covered by consolidated or compact
pack ice, and the ice extends beyond the limit of the Finnish
territorial waters43.It may therefore safely be assumed that if an
offshore unit is able to depari from the yard in Finland during an
ice winter, it will not experience any difficulty in traversing the
usually ice-free Danish straits.
Accordingto theDanish PubliclcebreakingService,in theperiod1971-1991
navigationwas affectedby ice in84185,1985186.and 1986187.Intheseyears,the
numberof dayswhenminorproblemswereexperiencedby ice-strengthenedvessels
was 38, 30, and 36 in the routethrough theGreatBelt LangelandsBŒlr),and
29, 18.and34 in the Drogden.
" UnitedStatesDefense MappingAgency, Pub.No. 190,3rded.. p. 135-36.
andice chans publishedby the Finnishlnstituteof MarineResearch. 290. In order to promote the safety of navigation through the
Danish waters, including the Great Belt and the Sound, the Danish
authorities have established the SHlPPOS system. SHIPPOS is a
radio reporting scheme according to which large vessels, offshore
structures and other large units navigating the Danish watersmay
receive information on the positions and movernents of other large
vessels and units under tow in the area, navigational hazards en
route, and deviations from normal conditions of e.g., current, water
level, and wave height. Participation in the SHIPPOS system is
voluntary, but the system is used by approximately 90 per cent. of
al1 vessels transiting through the Great Belt with a draught of 13
rnetres or
291. Finland notes that the Drogden route has the additional
disadvantage of passing by Copenhagen, where heavy traffic
increases the risk of collision (para.73 of the Memorial). As a
remark made in the context of a comparison between the
navigational routes through the Sound and the Great Belt, the
statement lacks ment. The intensity of navigation in terms of the
number of transiting vessels in the two routes is almost the same.
Finland's reference to the proximity of the Drogden route to
Copenhagen's international airport at Kastrup is similarly irrelevant
(para. 74 of the Memorial). The Danish Maritime Authority has
issued a guideline according to which al1 vessels and structures
under tow with air draughts in excess of35 metres are requested to
report their approach two hours prior to passage of the airport, see
Notice issued by the Danish Maritime Authorityon 10August 1989
(Annex 40). The advance notice allows the necessary coordination
of maritime and air traffic during the lime of passage. Such
reporting schemes are found in various parts of the world, are well-
known to the international shipping cornmunity and in no way
hampers the passage of any vesse1 or MODU through this part of
the Sound.
In Annex 32 to the Mernorial.page 152, it is erroneouslystated that
panicipationin the SHIPPOSsystemis compulsory.
98 D. UnderkeelClearancein the Sound
292. Finland has devoted considerable attention to the issue
of underkeel clearance for transport of MODUS (para. 75 and
Annexes 4 and 32 to the Memorial). Denmark of course agrees that
it is essential to ascertain what column of water a ship or an
offshore unit must have under its keel in order to navigate or be
towed safely through a given body of water. The determination of
the proper underkeel clearance is the basic premise for evaluating
whether offshore units including Rauma-Repola's past and future
productions may be towed through the Sound. No underkeel
clearance figure will have universal application, as the value must
be established for each body of water and for each type of vesse1
on the basis of a number of criteria:
the geographic location of the particular body of water,
wind, tide, and other factors affecting the watervel
- the nature and topography of the seabed and the reliability
of the charted depths
the type of unit in question, its sea behaviour, thesalinity of
the water, and other factors affecting the draught of the unit
in the waters in question.
293. Determining the column of water under the keel
required for safe passage is thus a very concrete task, inseparably
tied to the specific navigational routeexamined. When assessing the
underkeel clearance necessary in the Sound, or rather in the
Drogden Channel, the validity of drawing parallels to waters
elsewhere in the world is entirely dependent on complete or nearly
complete comparability between the waters examined. This is
clearly reflected in the marked difference between the Sound and
the Great Belt with respect to underkeel clearance.
294. No Danish or international body has established a
required underkeel clearance for navigation in Route T through the
Great Belt or for navigation through the Sound. However, an
underkeel clearance for vessels utilizing RouteT has indirectly beenrecommended - at least for larger vessels, whereas this is not the
case for the route through the Sound.
295. To enhance the safety of navigation particularly for
larger vessels utilizing Route T and thereby the Great Belt for
transiting Danish waters, the International Maritime Organization,
following a request from Denmark, adopted Resolution A.620(15)
on Navigation through the Entrancesto the Baltic Sea (Annex 41).
Route T has a charted minimum depth of 17 metres, but Denmark
wished that the international maritime community be made aware
that in one section of Route T, in the area to the north-east of
Gedser (Map 1)."the charted depths, even under normal conditions,
may be decreased by as much as 2 metres owing to unknown and
moving obstruction^" ^^he variations relative to the charted depth
north-east of Gedser are primarily caused by moving sandbanks.
296. Denmark had originally proposed a minimum underkeel
clearance of 2 metres for passage through the Route T, but this
proposal was not adopted by the IMO. Formally speaking
Resolution A.620(15) does not establish or even recommend an
underkeel clearance. It merely Statesthe fact that the charted depth
may be decreased, and recommends that ships of 40,000 DWT and
above and ships with a draught in excess of 13 metres take certain
precautions (Article I(a) and l(b) of the Resolution). For al1
practical purposes, however, the safe draught of ships and other
structures passing this part of Route T is limited to 15 metres.
297. It has never been considered necessary to establish a
recommended underkeel clearance or warn of nsks of decreasing
water depths in the Sound. The minimum water depth in the main
navigational route through the Sound is 7.7 metres, this being the
minimum depth of the dredged Drogden Channel. The applicable
IMO Resolution A.579(14) on the Use of Pilotage in the Sound
4s IMO ResolutionA.620(15) adopted on19 November 1987, Anicle I (a).
ResolutionA.620(15)expresslyrevokesthepreviousResolutionA.339(IX)referred
to in Annex3 to the Memorial.conditions in the fairway or channel which the vessel is about to
enter.
300. The establishment of an appropriate underkeel clearance
for the transport of MODUSthrough the Sound is assessed in detail
in paragraphs 310 - 333, whereas the clearance for ships is
addressed below.
E. Pilotage Services and Existing Ship Trafic in the Sound
301. Extensive pilotage services are available in Danish
waters, both for international transit traffic and for traffic entering
or leaving Danish ports. Contrary to what is stated in Annex 32 to
the Memorial, pilotage for ships and for MODUStransiting Danish
waters is optional, see paragraph564.
302. The approximate annual number of ships utilizing the
services offered by Danish pilots for passage through the Sound is
2,300. The pilots are experienced in handling both ordinary vessels
and offshore structures under tow. For a north-bound passage
through the Sound a Danish pilot will board the vessel either off the
island of Bornholm or in the southern part of the Sound; for a
south-bound passage the pilot will embark at Elsinore (Map IV).
Before guiding a vessel through the Sound the pilot will measure
the vessel's actual draught at the time passage is to be commenced.
303. The Danish pilots consider an underkeel clearance of
0.2 metres sufficient for the passage of ships through the Drogden.
The short Drogden Channel is considered to be similar to a harbour
entrance due to its sheltered location and the fact that it is a
dredged fairway ensuring an absence of sedimentary deposits and
full reliability of the charted depth.
304. The reliability of the charted depth in the dredged and
suweyed Drogden Channel enables the pilot to know precisely how
much water he has under the keel once the draught of the vessel and the current water level have been measured. This is in marked
contrast IO the Malacca Strait and the Dover Strait referred to by
Finland. As noted in the Mariner's Handbook "offshore surveys
seldom attain the precision of those in sheltered inshore waters" and
"the charted depths in offshore areas should not be regarded with
the same confidence as those in inshore waters, or those in the
approaches to certain ports where special provision is made to
enable underkeel clearance to be reduced to a minimumM4'.The
special provisions referred to by the Mariner's Handbook would
presumably be maintenance of the existing water depth by regular
survey and further dredging if necessary, precisely the measures
taken in the Drogden Channel.
305. In the Balric Deep-Sea Pilotage published by the Baltic
Pilotage Authorities Commission, a non-govemmental organization
consisting of the pilotage authorities in the countries adjacent to the
Baltic Sea, the maximum draught for passage through the Sound by
way of the Drogden Channel under normal weather and wind
conditions is listed as 7.50 metres (Annex 43). This implies an
underkeel clearance for regular ships of 0.2 metres.
306. An argument that an underkeel clearance for ships
transiting through the Drogden of 0.2 metres is inadequate and
unsafe cannot be sustained in view of the fact that this is the
clearance recommended by the Sound pilots, officially promulgated
by the Baltic Pilotage Authorities Commission, and, most
importantly, the one utilized by international shipping.
307. According IO the registers of the Danish Sound pilots, a
total of 657 ships with draughts of 7.0 metres or more were piloted
through the Sound in 1991. 116 of these ships had draughts of 7.4
metres and above, and some even had draughts measured by the
pilots of 7.6 metres. This clearly demonstrates the masters'
47
TheMariners Handhook,NP 100,6thed.,1989,p. 21 andp. 32.confidence in the accuracy of the charted depth in the Drogden
channel and in the assistance provided by the pilots.
308. Finland has contended that several shipping companies
have advised ships in excess of 3,000 - 4,000 DWT to use the
Great Belt rather than the Sound (para. 73 of the Memonal). The
contention is unsubstantiated, and it should not give rise to the
erroneous inference that only a few ships above 4,000 DWT utilize
the Sound. In fact 34 per cent. of al1vessels navigating the Sound
exceed 5,000 DWT. In 1990 the total number of passages through
the Sound was calculated to be 21,385, and out of these more than
100 were ships above 40,000 DWP~.
309. The inference that may be drawn from Finland's
statement is also contradicted by the navigational practices of
Finnish ships transiting the Danish straits. In the penod 1987 -
1991, a total of 36 Finnish vessels with draughts of 7.0 metres and
above passed through the Sound; the tonnage of these vessels
ranged from 4,500 to 31,800 DWT (Annex 44).
F. Transport of Offshore Units through the Sound
310. The existing ship traffic in the Sound and the
appropriate underkeel clearance for ships passing through the
Drogden Channel has been addressed above. As documented in
Chapter IV and V the only craft which have air draughts in excess
of the free clearance of the future East Bridge are certain offshore
units and Cranevessels. The possibilities for transporting drill ships,
semi-submersibles and jack-up platfoms through the Sound will
therefore be examined in some detail in the following. Crane
vessels will be separately addressed in Chapter VIII.
Reportfrom MSRConsultantsAnalyserafskihsrrafikkeni gresJanuary
1991.
104 311. Finland has categoncally discarded the possibility that
offshore units could be transported through the Sound, using
terminology such as "not a technically relevant option", "completely
unavailable", and "physically impossible" (paras198,200, and 203
of the Memonal).
312. Finland's flat rejection of the Sound as a navigational
route for offshore units is unwarranted. As a starting point it should
be emphasized that the Sound has been utilized for towing Rauma-
Repola built semi-submersibles from the Baltic to the North Sea a
number of times. Further, according to observations made by the
Royal Danish Navy, at least one of the three identical drill ships
built atRauma-Repola has sailed through the Sound under its own
power.
313. Denmark recognizes that the towage of an offshore unit
through the part of the Sound known as the Drogden Channel,
requires careful planning, preparation ofextensive towing plans, use
of local tugs and local pilots,as well as an absence of unfavourable
climatic conditions. But the same would be true of passage via the
less protected waters in the Great Belt, and, in fact, these
considerations apply to any MODU transport irrespective of route,
as offshore tows in general are only performed when weather
conditions and other relevant factors are suitable.
314. Denmark also acknowledges that the guaranteed
minimum depth of the Sound is merely half that of RoutT through
the Great Belt making the question of determining and securing the
presence of the appropriate underkeel clearance acutely important.
The lesser depth in the Sound may under unfavourable conditions
necessitate temporarily stopping the MODU in the Sound before
entenng the short Drogden Channel, if the water level for one
reason or another has fallen below mean sea level. But "waiting on
weather" is a very common cause of interruption of offshore
transports, especially once the transport leaves Danish waters and
proceeds into open sea. And it should be borne in mind that wiih
respect to towage of MODUSthe only area with critical water depthin the whole of the Sound is the Drogden Channel with its total
length of 5.5 nautical miles.
315. It is therefore conceded that towing a MODU through
the Sound may, due to the lesser water depth in a number of ways
be more inconvenient than taking it through the Great Belt. But
then again, inconvenience should not be equated with impossibility.
316. Denmark believes that subsequent to the completion of
the East Bridge offshore structures should utilize the Sound as their
principal route of passage through the Danish straits. Irrespective of
whether Finland prevails on its claim that MODUs have a right of
passage through the Danish straits, Denrnark is entitled to rnake
such a regulation under the niles of intemational law pertaining to
the separation of traffic and establishment of traffic lanes for ships
of special characteristics and, a fortiorto,MODUs. It would be
open to Denmark, under customary international law and by
analogy with the right conferred in Article 22 of the 1982
Convention on the Law of the Sea to issue regulations requiring
that MODUs capable of transiting the Danish straits via the
Drogden Channel should in the future do so. In order to justify such
a regulation the Government of Denmark is not obliged to
demonstrate that the Sound is in every respect as suitable for
offshore transport as the Belt. It is submitted that Denrnark merely
has the burden of dernonstrating, and substantiating, that the Sound
is an adequate and feasible route for the transport of existing
MODUs through the Baltic approaches, and that its regulation is
justified by considerations of safety.
317. In order to avail itself of an expert opinion on the
possibilities for towing MODUs through the Sound the Govemment
of Denmark has commissioned London Offshore Consultants Ltd. to
submit a report on that subject with particular emphasis on whether the units built by Rauma-Repola could have been towed through the
Sound (Annex 45)49.
Requisite Underkeel Clearancefor MODU Passage of the Sound
318. A basic premise for determining whether a MODU may
be safely towed through the Sound is the establishment of the
proper underkeel clearance. For this purpose it must be carefully
analysed whether the underkeel clearance figure should include
allowances for:
variations in the sea level,
variations in the draught of theMODU,
variations in the level of the seabed.
319. It will be shown that variations of this sort are under
normal circumstances minimal in the Sound, and that it is therefore
not necessary to adjust the underkeel clearance to make allowances
for these factors.
320. Factors influencing the sea level include wind, tide, air
pressure, and fresh water drainage into the sea. The Sound is
particularly well sheltered against wind-generated waves, the tideis
negligible, and the variations in water level caused by air pressure
changes are generally insignificant. Like fresh water drainage into
the Baltic Sea, air pressure changes will usually lead only to a rise
in the water level.
321. Although variations of the water level both above and
below mean sea level will occur, such variations remain predictable
and will thus not pose problems for passage through the Sound as
49 LondonOffshoreConsultantsLtd.is a qualifiedManneInsuranceSurveyor,
one ofaveryfew firmsworldwidenominatedby undenvnterson insurancepolicies
to approvemarineoperations whichincludethetowageof MODUS.Underwridors
no becorneinvolved in the technicalitiesof towages, such as underkeelclearance,
but rely on the expenence of those such as London Offshore Constd. toL
approvesuchoperations.towage of a MODU whether in the Sound, the Great Belt, or
elsewhere in the world will not be undertaken if unfavourable
climatic conditions are present or approaching.
322. The factors that may influence the draught of a MODU
or a ship include accuracy of draught measurement, wave-induced
vertical motion of theMODU, squat, and change in draught due to
towline pull.
323. The precision of a draught reading depends on the
smoothness of the surface of the sea. The draught of the unit may
be accurately measured in sheltered waters. Such waters are
available immediately prior to entering the Drogden Channel.
324. The basic premise of London Offshore Consultants'
Report is that a towage through the Sound will only be executed in
suitable environmental conditions. London Offshore Consultants
conclude that such favourable weather conditions may be obtained
in the Sound at any time of the year, and combined with the
sheltered location of the dredged Drogden Channel this means that
the vertical movements of the MODU will be negligible.
325. Squat is an increase in draught expenenced when a
vesse1 moves close to the sea bottom inducing a reduction in
pressure. Since squat is insignificant to the point of absence at slow
speeds, it may be disregarded for tows through the Drogden where
the estimated speed will be only 2 knots. The towlines will be
mounted to ensure that the pull of the tug will not affect the
draught of the unit, at least not at the modest speed of towage.
326. Finally, the nature of the Drogden Channel does not
make it necessary to include a dredging tolerance or a tolerance
allowing for sedimentary deposits. The sea bed of the channel is
stable chalk, and the currents prevent sandbank and other
sedimentation build-up in the navigational route. Thus, the full
reliability of thecharted minimum depth of 7.7 metres in the
dredged channel is ensured. 327. Against this background London Offshore Consultants
conclude that a MODU may be safely towed through the Sound
with a draught of up to 7.2 metres Le., with an underkeel clearance
of 0.5 metres. Since drill ships sail under their own power with
normal navigating capability, the underkeel clearanceof 0.5 metres
recommended as safe and feasible by London Offshore Consultants
only applies to towage of jack-up and semi-submersible drilling
rigs.
328. It is important to note that only the Report submittedby
London Offshore Consultants has squarely addressed the issue of
the appropriate underkeel clearance for a controlled MODU towage
through the Sound. The statements provided in Finland's Memorial
on the question of underkeel clearance are either general in their
character or relate to other-geographically incomparable - waters.
329. It is of particular interest to note that the Report
submitted by Noble Denton Marine Services Ltd., Annex 32 to the
Memorial, does not recomniend a specific underkeel clearance for
tows in the Drogden. Relying on such general statements as
"(o)wners of MODUSlike tn see at least two metres of water below
the keel or the lowest part of the unitus0,no attempt is made to
test this two-metre clearance against the particular conditions in the
Drogden. A number of the factors mentioned in Annex 32 as
determinative for a two-metre underkeel clearance are precisely
those factors the influence of which has been demonstrated above to
be negligible or non-existing for tows through the Drogden
Channel. The application, in Annex 32 and in the Memorial in
general, of a two-metre underkeel clearance for tows through the
Sound is therefore not warranted, and, it is contended, cannot fonn
the basis for a determination of whether the mobile offshore drilling
units built byRauma-Repola may be transported through the Sound.
'"nnex 32to the Memoriap. 146.
109 330. Finland has referred to the recommendation on
underkeel clearance issued by the Permanent International
Association of Navigation Congress (PIANC) (para. 75 of and
Appendix 1 to Annex 4 to the Memorial). Finland contends that
when applied to the Sound the PIANC recommendation leads to a
required underkeel clearance of 0.9metres. First, it should be noted
that the recommendation notably applies to large ships, not
MODUS. Secondly, the figure quoted by Finland is by nature
general and does not take the particular merits of the individual
case into account. Thirdly, the part of the recommendation relied on
by Finland states that in channels "exposed to strong and long
swell, gross underkeel clearance to be about 10 to 15 per cent. of
the draught"". The reference is not well chosen. Due to its
location adjacent to the coasts of Amager and Saltholm and the
sheltered nature of the Sound in general, the Drogden waterssustain
not strong but only insignificant swell; swell being defined "as the
wave motion caused by a rneteorological disturbance, which persists
after the disturbance has died down or moved a~ay"'~.
Inexplicably, Finland has failed to.include in its excerpt from the
PIANC recommendation the provision in the document applicable
to channels "less exposed to swell" (section 2.2.2.8.4.), which
would of course be a much more relevant basis of comparison to
the sheltered Drogden Channel. In such channels, the PIANC
document recommends an underkeel clearance of 10per cent. of the
vessel's draught (Annex 46). As applied to the towage of an
average jack-up with a transit draught of 5.50 metres, the PIANC
recommendation would counsel a minimum underkeel clearance of
0.55 metres for passages through the Sound.
331. Finland has quoted Det Norske Veritas for
recommending an underkeel clearance during towage of an offshore
" Appendix 1 to Annex 4 to the Memorial,section 2.2.2.8.3.
" The Mariner's HandbooNP 1006th ed.1989,p. 62.
110 unit of minimum 5 metres (para.75, section 6 of the ~emorial~~).
Finland's applicationof this recommended underkeel figure to the
towage of a MODU is inappropriate. The cited part of the Veritas
document explicitly applies to "objects such as gravity base
structures, jacket substructures, offshore towers, etc.". These units
are not MODUs but fixed production platforms. A gravity base
structure is a concrete production platform with a floating draught
of up to 200 metres, which will be towed to its drilling site to be
permanently installed there. Obviously, the underkeel clearance
recommended for a fixed production platform of this type cannot be
applied to the towage of a MODU with a towing draught of e.g., 6
metres. The inappropriateness of Finland's reliance on the
recommendation regarding these fixed offshore structures is made
clear by a statement submitted by Der Norske Veriras to the
Government of Denmark (Annex 47).
332. London Offshore Consultants' recommendation of a
minimum underkeel clearance for the passage of MODUs through
the Sound of 0.5 metres is in accordance with the practice
established by the Sound pilots. The pilots recommend an underkeel
clearance of 0.5 metres for a controlled towage of a semi-
submersible or ajack-up platform through the Drogden. The pilots
consider the underkeel clearance of 0.2 metres established for
regular ships applicable also to drill ships navigating through the
Drogden. Drill ships are neither larger nor more restricted in tlieir
ability to manoeuvre than regular ships which pass through the
Drogden with draughts up to 7.5 metres.
333. In further support of its contention of the viability of the
Sound as a transit route forMODUs, the Government of Denmark
has asked Der Norske Veriras to recommend the appropirate
underkeel clearance for a controlled towage of a MODU through
the Drogden Channel. Like London Offshore Consultants, Det
53 Veritas MarineOperationStandard for Insurance Warranry Sunzeysin
Marine Operations.une1985,Section5.8.2.(Apppendix2 to Annex 4 to the
Mernorial).
111Norske Veritas is one of a very few Marine Insurance Suweyors
world wide that review plans for MODU tows on behalf of major
underwriters. In their statement,Der Norske Veriras endorses the
conclusion of London Offshore Consultants that an underkeel
clearance of 0.5 metres for towing a MODU through the Drogden
in good weather is fully adequate (Annex 48).
G. Transport of Rauma-Repola's MODUs through the Sound
334. It has now been established that semi-submersibles and
jack-up platforms may be towed through the Drogden with an
underkeel clearance of 0.5 metres, and that drill ships may sail
through the Drogden with 0.2 metres of water underkeel, in both
cases subject of course to normal environmental conditions. Thus at
mean sea level platforms with draughts of up to 7.2 metres and drill
ships with draughts of up to 7.5 metres may transit the Sound.
335. The draught figures established above will allow most
exist~ng MODUS in the world to transit through the Sound in a
controlled operation. At the request of Denmark, London Offshore
Consultants Ltd. has executed a case study on whether each of the
MODUs hitherto built at Rauma-Repola may be towed through the
Sound.
336. The conclusion of the study is that, with the exception
of four semi-submersibles fitted with thmsters protruding beneath
the hull of the MODU, al122 MODUs listed in Table II as built by
Rauma-Repola could be transported through the Sound without any
technical modifications to the .units. One of these four semi-
submersibles does not have a drilling tower and could be towed
under the East Bridge, whereas the remaining three units could be
towed through the Sound after a temporary dismantling of their
thrusters.
337. The findings of the Rauma-Repola study are
summarized in the following. It is important to note that, as previously mentioned, London Offshore Consultants Ltd. is a
qualified Marine Insurance Surveyor, one of a very few firms
worldwide approved by the insurers of marine operations to review
plans for the towage of MODUS for purposes of taking out
insurance policies covenng such transports. Thus, when London
Offshore Consultants conclude that, subject to the conditions of
passage set out above, a Rauma-Repolasemi-submersible orjack-up
rig may safely be towed through the Sound provided there is at
least a water column of 0.5 metres underkeel, it may eo ipsobe
assumed that such a tow would be insurable with major
undenvriters.
338. The draught of a MODU is a variable figure. The
draught of a MODU when being towed is known as the transit
draught. A jack-up rig will have two transit draughts, one for
location moves and one for ocean towage. The transit draught of
any MODU relates to a specific weight or displacement. If the
weight or displacement of the unit is altered, so is the draught.
339. The weight of a MODU may be divided into two
components: the light weight (a fixed weight consisting of the
weight of the hull and the fixed equipment) and a variable load (a
variable weight consisting of moveable weights carried on or within
the hull).A significant part of the variable load is made up by drill
pipes, drilling equipment, bulk storage, drilling mud, fuel, and
water. These items are not normally supplied by the MODU
builder, and are usually not delivered to the rig until it is in its
drilling area. This part of the variable load would therefore not he
included for a delivery transport from the yard to the drilling
destination.
340. The transit draught for a unit quoted byMODU yards
and the various offshore registers will, however, normally include
the quantity of variable load needed for drilling purposes.
consequently, the actual draught of a MODU on its delivery voyage
from the production yard will invariably be - or may easily bereduced to - a draught which is considerably less than the listed
transit draught of thatarticular MODU.
341. London Offshore Consultants Ltd. has examined the
transit draught of al1units produced by Rauma-Repola as listed by
available offshore registers. For those designs whose transit draught
was critical with respect to passing through the Drogden Channel,
London Offshore Consultants have contacted the current operator of
the rig and ascertained the precise quantity of variable load camed
on the unit at its listed transit draught.
342. The availability of these data have made it possible to
make an accurate evaluation of the possibility for passage through
the Sound for each of the units produced at Rauma-Repola. The
conclusions of the study demonstrate that out of the 22 MODUS
built atRauma-Repola 14 may be towed or sail through the Sound
without any modifications to their design, canying their maximum
variable load, 4 semi-submersibles may be towed through the
Drogden Channel without any modifications to their design if less
than maximum variable load is camed, and three semi-submersibles
may be towed through with their thmsters dismantled if less than
maximum variable load is included. The last unit is not a drilling
rig but aMulti-purpose Support Vessel; it cannot pass the Drogden
but may go under the East Bridge as it has no drilling tower.
343:.Finland has informed the Court that al1 semi-
submersibles built by Rauma-Repola were towed through the
Danish straits", including the four units equipped with th~sters.
Two jack-ups were carried on heavy-lift ships, whereas one jack-up
was towed in floating condition through the Danish straits. None of
the semi-submersible or jack-up units produced by the Finnish yard
were thus self-propelled during passage of the Danish straits. The
drill ships, of course, sailed under their own power.
Y Picture 1 shown by the Agent of Finland,AmbassadorCronberg,to the
Courton 4 July 1991. 344. In its rejection of the Sound as a viable route for the
transport of offshore craft (paras. 198 - 206 of the Memorial)
Finland fails to recognize the fact that a number of the offshore
craft built by Rauma-Repola did in fact utilize the Sound for
transiting the Danish waters. Danish authorities have three Raurna-
Repola semi-submersible drilling rigs and at least one of the
Rauma-Repola drill ships on record as passing through the Sound
(RR 3, RR 4, RR 6, and RR 15).
345. Finland also declines to consider the possibility of
towing jack-up platfonns produced in Finland through the Sound,
despite the fact that the floating transit draught of al1Rauma-Repola
jack-up rigs is comfortably less than the acceptable draught of 7.2
metres. Finland instead persistently advocates the carriage of jack-
ups by heavy-lift vessels citing considerations of safety as well as
insurance costs (paras. 200 - 201 of the Mernonal). The fact
remains that towage is by far the rnost common mode of
transporting jack-ups, particularly in sheltered waters such as the
Danish straits.
346. Finland's contention of the irnpracticability oftowage
through the Danish straits is further contradicted by the practices
employed for transporting offshore units and equipment from
Rauma-Repola to the North Sea. High value offshoreequipment has
in fact in a number of instances been towed or a barge rather than
transported on heavy-lift ships through the Baltic approaches. In
early 1991 Rauma-Repola Offshore delivered as a sub-contractor
part of the structure for the Norwegian built Snorre production
platform. Modules have also been carried on a barge and towed
from Finland to Nonvay, demonstrating again that towage is a safe
means of transport provided it is properly planned andexecuted. In
addition, ilshould not be overlooked that one of the jack-ups co-
produced by Rauma-Repola and the Vyborg Shipyard was towed
through the Great Belt in August 1991 (illustration on page60 of
the Memorial). This unit had an actual towingdraught of 6.5 metres
which, like the other jack-ups built byRauma-Repola,would have
allowed it to pass through the Sound, see paragraph 348. 347. Finland has listed the MODUS produced at Rauma-
Repola in Table 16 on page 86 - 87 of the Memorial. A number of
the specification figures advanced by Finland merit comment and
correction. Regarding the two jack-ups built by Rauma-Repola,
Finland goes to the extent of listing the transit draughts of the two
Gusto units (RR 22 and RR 23) as 10.3 metres and 8.5 metres,
respectively. These figures are not, however, the transit draughts of
the jack-up platforms, but the draught of the heavy-lift vesse1with
the jack-up loaded on deck. According to the operator of one of
these rigs the floating draught of these two platforms is 6.35 metres
(Annex 45), thus comfortably allowing them to be towed through
the Sound. This draught corresponds with the transit draughts of the
two jack-ups as listed in the offshore registers55.Table 16 fails to
include an explanatory note indicating that the quoted draught of
the jack-up was as carried on a heavy-lift ship. Table 16 also lists
the draughts of a number of jack-up rigs which Rauma-Repola has
tendered but not built. It may be assumed that these draught figures
do not refer to the towing draught of these units but again to the
draught of the heavy-lift ship carrying the jack-up. The draughts
quoted by Finland for some of these tendered rigs are approxi-
mately twice the towing draught of the largest modem jack-up rigs
in the world.
348. Table 16 of the Memorial also lists the two
Minsudprom jack-ups built by Rauma-Repola in cooperation with
the Vyborg Shipyard, Russia. According to information available to
the Government of Denmark, only one of these, Murmanskaya,has
been delivered from the yard in Vyborg, whereas the other platform
is stillunder constmction. Finland has submitted that the transit
draught of both jack-up rigs was "over 8.0 metres" stating
"(d)raught information as received from the yard" (p. 86 of the
Memorial). This piece of information contrasts with the fact that
when the jack-up Murmanskaya was towed through the Great Belt
in August 1991 the pilots measured and recorded it to have an
'Guide to Mobile Drilling UnOilfield Publications Limited, 1989.
116 actual draught of 6.5 metres, This draught would of course have
allowed Murmanskaya to be transported through the Sound. It may
thereforebe concluded that despite the figures listedinFinland's
Table 16 al1jack-ups built by Rauma-Repola have towing draughts
of 6.5 metres or less.
349. Further, the draught figures quoted by Finland in Table
16 for the six Aker H-3 semi-submersible rigs built by Rauma-
Repola are puzzling. Finland States that the draught of these six
units is 7.0 metres. The offshore registers consistently quote these
rigs as having transit draughts between 6.1 and 6.7 metres. These
latter figures accord with the draught readings executed by the
Sound pilots when three of these Rauma rigs transited the Sound in
the 1970s. Finland lists no source for the stated draught figures.
350. AIso in Table 16, Finland has quoted the Multi-purpose
Support Vessel (MSV) as having a water draught of 11.5 metres.
This conflicts with the registered transit draught of the unit, which
is 7.9 metres. It may be that this rStadive,has subsequently been
fitted with thmsters, but it should be noted that at least when the
unit transited the Danish straits in December 1982, the operator
reported to the Danish authorities that the semi-submersible had a
draught of 8.5 metres. As mentioned in paragraph 342 this craft
may pass under the East Bridge as it has no drilling tower.
351. As a final point it shouldbe pointed out that there is a
discrepancy between the information given by Finland in Table 16
and in paragraph 262 of the Memorial as to the number of offshore
rigs built by Rauma-Repola. In paragraph 262 the number of
offshore rigs delivered byRauma-Repola since 1972 is quoted as
23, whereas Table 16 only lists 21 deliveries. InRauma-Repola's
sales folder (Annex 51 to the Memorial) pictures are shown of 7
Aker H-3 and 4 Friede & Goldman semi-submersibles against only6 Aker H-3's and 3 Friede & Goldman rigs in Table 16. No
explanation is given for this dis~repancy.'~
352. Table II lists al1 MODUS produced at Rauma-Repola.
The list includes the transit draught of each unit, given either on the
basis of information available in various offshore registers, as stated
by the operator of the cig, or as measured by Danish pilots during
passage.
'6In this Counter-Memorial Denmark hasinter alion the basis ofRauma
Rcpola's sales folder (Annex 51 to the Memorial) assumed tRaumo Rrpola's
production totals 22 rigs. Denmark considers that only three jack-uprigs have been
completed, as the founh jack-up counted by Finland. a FinnishIRussian co-
production, has not yet been delivered from the shipyaVjhocy according to
information available to Denmark. TABLEIIMobile OffshoreDrilling UnifsBuiltut Ruumu-Repolu
PENTAGONE 84
Noie 1. Ail draught figures taken from Lloyd's Registebooks unless where otherwise indicated.
Note 2. Dnughl taken from the Guidr Io Mobile Drilling Uni!$,Oillield Publications Ltd.. 1989.
Note 3. Draughi as measured by Danish pilot priar Io passage.
Note 4. Hull draught ercluding thnisiers.
Noie 5. This Multi-purpose Suppon Vcssel has no derrick. and could pas? under the EaBridge.
Note 6. Draught taken from Anncx 45. 353. London Offshore Consultants Ltd. has concluded that 19
out of the 22 dnlling rigs built by Rauma-Repola could pass
through the Sound (or the Great Belt after construction of the East
Bridge) without any modification ta the design of the units. A few
of these units cannot go through the Sound with full variable load.
As stated above most of this variable load is usually not delivered,
and is in any event not required until the rig is in its area of dnlling
(paras. 339).
354. Only three semi-submersibles would, due to their
draught-increasing thmsters, have ta undergo a temporary
modification in order to pass the Danish straits. One possibility
would be to dismantle the thmsters, or - considenng that the
thrusters are not needed for propulsionduring transit as al1Rauma
semi-submersibles have been towed through Danish waters - not to
fit the thmsters until after passage of the Sound. Another possibility
would be to dismantle the top part of the derrick to allow passage
under the East Bridge and refit the derrick part afterwards. The
methods of modification and the costs involved will be addressed in
the following Chapter.
H. The Fixed Link across the Sound
355. In a treaty signed on 23 March 1991 the Governments
of Denmark and Sweden agreed on the constmction of a fixed link
between the two countnes. The treaty has subsequently been ratified
by the two parliaments, in Denmark through the passingof Act No.
590 on the Public Works for a Fixed Link across the Sound dated
19 August 1991.
356. The link will span a strait where a series of car ferries,
train femes, passenger hydrofoils, and cargo ships ply between the
coasts of Denmark and Sweden. In 1991 there were approximately
162,000 ferry departures across the Sound carrying around 21
million passengers including a fair number of daily cokmuters, 2.7
million cars and tmcks, and 6 million tonnes of goods.the Sound. The budgeted constmction costs for the fixed link are
approximately DKK 17,000 million (USD 2,650 million), which
will be financed exclusively through toll fees to be levied on the
cars and the national railway companies utilizing the link.
362. Following an international tender procedure it is
expected that construction works will commence in 1993, and the
road and rail connections are expected to open in 1999.
363. In support of ils argument that the Sound is not a
relevant alternative for the Great Belt as an international passage for
large ships, and, impliedly, for offshore units, Finland has stated
that it is unclear whether the conditions of the Sound can be
maintained if the proposed fixed link between Denmark and
Sweden is built (para. 94 of the Memonal).
364. Finland's conclusion is puzzling. In its section on the
proposed fixed link across the Sound (paras. 85-93), the accuracy of
which Denmark can fully endorse, there is no basis for Finland's
contention. On the contrary, itis clearly stated that the immersed
tunnel will leave existing navigational traffic through the Drogden
unaffected and even allow for a future dredging of the Drogden
down to a depth of 10.0 metres. It is understood, though, that any
future dredging of the Drogden Channel would have to be in
conformity with established environmental standards. CHAPTER VII.
MODIFICATIONOF SEMI-SUBMERSIBLE AND JACK-UP
DRILLING UNITS
A. Introduction
365. The traffic of mobile offshore drilling rigs through the
Danish straits can basically be divided into IWO categories;
northbound delivery voyages from MODU building yards located in
the Baltic, and transits made by rigs with exploration assignments
on drilling sites in the Baltic. The former is by far the more
numerous.
366. While it has been shown that 19out of the 22 MODUS
produced at Rauma-Repola could have gone either through the
Sound or the Great Belt after completion of the East Bridge without
any technical modification of the design of the rig, three semi-
submersibles fitted with thmsters would have had to be modified to
pass through one of the Danish straits. The type of modification
applicable to these three semi-submersibles, and possibly other
offshore units which might notbe able to transit through the Danish
straits without technical alterations, depends on which strait is to be
employed for passage, the Sound with its limited water depth and
its absence of height constraints, or the Great Belt which allows a
deeper draught and a maximum air draught of the unit of65 metres.
367. Contrary IO what may be inferred from Finland's
description of the offshore activity in the Baltic (paras-323 of
the Memorial) offshore exploration for hydrocarbons in the Baltic
has been very modest. Judging from the information that has been
released on the results of the various exploratory drills in the Baltic
Sea, there is no basis for expecting that the Baltic will become a
major or even an important area for offshore hydrocarbon
production. 368. At any rate, the East Bridge will not close off the Baltic
to incoming MODUs. As demonstrated above, most drill ships,
jack-ups, and semi-submersibles in the world may without technical
modifications go through the Sound. The few rigs that due to their
deep draught would not be able to pass through the Sound are harsh
environment rigs which would not be necessary to use in the Baltic.
The weather conditions in the Baltic are much less severe than e.g.,
the open sea environment of the North Sea offshore industry.
Consequently, the Baltic offshore activities do not require the very
large, deep-draught harsh-environment platfonns often utilized in
the North Sea. According to the findings of Lloyd's Register al1
drill ships, about two thirds of al1semi-submersibles and al1modem
jack-ups may be transported through the Sound without any
technical modifications (Annex 35). It may therefore be safely
assumed that the Baltic offshore exploratory activities will in the
future be adequately serviced by the MODUs that are capable of
passing through the Sound. No technical rationale or need for
bnnging in MODUs with deeper draughts can be demonstrated.
369. Most competitive rigs on the market willthus be able to
transit the Danish straits, the future East Bridge notwithstanding.
However, the possibility that an operator would want to bring into
the Baltic one of the very few MODUs that due to excessive
draught cannot pass the Drogden Channel e.g., a large deep-draught
harsh-environment semi-submersible, a semi-submersible with
thmsters, or an old jack-up with non-retractable spud cans
protmding beneath the hull and increasing the draught, cannot, of
course, be altogether mied out. In this case it would be necessary to
modify the rig temporarily to allow it to pass the Danish straits in
one of the three manners outlined below in sections B, C, and D.
The Government of Denmark submits, however, that irrespective of
whether MODUs enjoy a right of passage through the Danish
straits, Denmark is not obliged under international law to design the
Great Belt Link to accommodate such a theoretical future
development. 370. Of more interest are Rauma-Repola's possibilities for
towing possible future orders for offshore rigs from the Baltic to the
North Sea. Using the existing productions from the Finnish yard as
basis for an evaluations of the possibilities, the problems facing the
Finnish yard do not seem insurmountable. Only three out of twenty-
two rigs would need temporarily to be modified to reenter the
Baltic Sea. Il is by no means certain that future rigs will have
deeper draughts than existing ones. In fact the largest and most
modem jack-up rigs in the world al1 have towing draughts well
below 7 metres. The trend of jack-ups in recent years has been
towards a reduction rather than an increase of the draughts of the
rigs, partly due to the retractability of spud cans on modem units,
partly due to the fact that deep draught may eliminate the
possibility of using heavy-lift transport. The draughts of the drill
ships are not expected to change. Semi-submers-ible units tend to
be built larger than before. For very many of the semi-submersible
rigs, however, this increase in size has not led to an increase in the
draught of the rig.
371. Still, should it become necessary to modify a future
Rauma-Repola unit with critical draught and air draught in order to
facilitate passage through the Danish straits, three different methods
are available, depending on the type of unit and the strait to be
employed for passage. The three methods that have been examined
in thefollowing sections are; the removal of the thmsters of a semi-
submersible to reduce draught and enable passage through the
Sound (section B), the removal and subsequent assembly of the top
part of a derrick on a semi-submersible to reduce air draught and
permit passage under the East Bridge (section C), and subsequent
installation of the top sections of the legs of a jack-up to reduce the
air draught and allow passage under the East Bridge (sectionD).
372. Denmark has commissioned London Offshore
Consultants to identify what would be the most feasible technical
procedure for each modification method, and in particular, to
estimate the lime to be spent and the costs to be incurred in
connection with these modifying measures. In order to make theestimates realistic, London Offshore Consultants have solicited
estimates from contractors and offshore yards in Sweden and
Nonvay expenenced in the type of work in question. The estimate
from the yards indicate the expected duration of the job as well as
the inherent expenses and are appendixed to Annex 45. Thus,
optimum reliability of the time and cost estimates included in
Annex 45 is ensured.
373. In their cost estimates London Offshore Consultants
have assumed that the semi-submersible rig is completed and
commissioned in Finland, then modified (thmsters dismantled or top
of derrick taken off), whereas the jack-up hull and a section of the
legs will be fitted ininland with the top sections of the legs left
unassembled. The semi-submersible or the jack-up is then towed
through the Danish straits to a yard in Sweden, Norway, or the
United Kingdom for final assembly. Whether it is necessary to
complete assembly of the semi-submersible at Rauma-Repola only
to modify it again, or whether it would not be faster and more
inexpensive not to complete assembly until after passage through
the Baltic approaches is arguable. The more consemative method
adopted by London Offshore in their calculations ensures, however,
that the cost estimates are based on a worst-case scenario.
374. The cost estimates in Annex 45 are comprehensive and
include the costs of the modification measures themselves
(supported by estimates from contractors), maintenance of rig crew,
port fees, mobilization, demobilization and hire of tuglcraneibarge
where applicable, demobilization of crew, insurance, project
management, and allowance for contingencies. Where the quotations
from the yards and contractors Vary,the highest figures rather than
the lowest quotations obtained have been used by London Offshore
Consultants in the preparation of the estimates. The estimates
include neither the time nor the expense, of towing the unit from
Rauma-Repola through the Danish straits as this transportation cost
would have had to be incurred irrespective of modification. 375. Finland has presented cost estimates penaining to each
of the relevant methods of modification in Annexes 37, 39, and 55
to the Memorial. When comparing Finland's estimates with those
made by London Offshore Consultants on the basis of actual
quotations it seems evident that no attempt has been made on the
part of Finland to identify designs or procedures that minimise the
costs and time for the work. To name just one example, in its
estimate Finland has apparently considered itnecessary to remove
not just the top part but the entire derrick to allow passage under
the East Bridge, thereby, unnecessanly, increasing the time and
costs of the modification vastly.
B. Removalof Thrusters
376. Thrusters are sometimes fitted on a semi-submersible.
Thmsters may serve one or both of two purposes, namely to give
the unit propulsion for independent navigation and to provide the
unit with dynamic positioning abilityduring drilling operations. The
thrusters are installed under the platfom, protruding up to 3 or 4
metres beneath the underside of thehull itself. The draught of the
unit would thus be reduced very considerably if the thrusters were
temporarily removed.
377. Thrusters are by their very nature dismountable.
Sometimes older semi-submersibles are furnished with thrusters
years after their completion. In many instances the thrusters: even
on new semi-submersibles, are not fitted at the place where therig
itself is constructed. Thiss due to the limited water depth ofmany
MODU yards, which cannot accommodate the draught of a semi-
submersible with thrusters. Instead, the platfom is completed at the
yard, and then towed to a deep-water site where the propulsion
system is mounted. Subsequent mounting of thrusters is thus a
routine part of rig construction at many yards.
378. Finland has conceded that it is technically feasible to
tow a semi-submersible without thrusters through the Sound forsubsequent mounting (para. 292 of the Memorial). Indeed, Finland
has informed the Court that also the semi-submersibles fitted with
thnisters were towed on their delivery voyages from the Baltic
through the Danish straitss8. The only arguments advanced by
Finland against these modifying measures are the costs and the loss
of time involved in dismantling and reinstalling the thrusters. It is
important to note that when looking only at hull draught of the unit
(without thmsters) London Offshore Consultants have concluded
that al1 semi-submersible drilling rigs hitherto built by Rauma-
Repola, whether they be of the Aker, the Pentagon, the Ocean
Ranger, or the Friede & Goldman type, may be towed through the
Sound without altenng the design of the unit. It is not until
thnisters are mounted that draught becomes a problem for passage
through the Drogden Channel.
379. Invanably, the removal and refitting of thmsters will
take time and involve costs. Thmsters are not constmcted by the
yard but delivered to the yard by a specialized manufacturer. One of
these manufacturers, KaMeWa, estimates that thmsters of KaMeWa
design may be dismantled in half a day per thruster (Appendix C to
Annex 45). At the request of London Offshore Consultants
Gotaver-kan in Gothenburg, Sweden, has quoted time and costs for
dismantling the thrusters of a semi-submersible drilling rig and
fitting them on the rig again. In this quotation, it has been assumed
that the number of thmsters to be dismantled was four. On the basis
of this quotation, the total costs of this modifying operation have
been estimated by London Offshore Consultants to USD 757,500.
This figure does not include an allowance for the interest on the
extension of the time of delivery.
380. Finland's calculation of the extra costs for delivery of
semi-submersibles due to removal of thmsters cannot be accepted
(Annex 55 to the Memorial). Finland has contended that this
modification job will cost Rauma-Repola USD 1,398,730 (FIM
Picture I showby Finland's AgentMr Gronberg10the Coun on 4 luly
1991.
128 10,833,333), excluding again the time-interest factor. As
demonstrated by the quotation referred to above, the dismantling of
the thmsters and the refitting is much less lime-consuming and
particularly less costly than indicated in the Finnish calculations.
381. Further, Finland's calculation of the time interest factor
is inflated. The following remarks on Finland's method for
calculating the interest on the extension of the delivery time are
general in nature and thus also apply to Finland's calculations for
modification of the derrick of a semi-submersible (Annex 37 to the
Memonal) and for modification of the legs of a jack-up (Annex 39
to the Memorial).
382. In the three cost calculations made by Finland, the
interest on the extended delivery time account for between 42 and
62 per cent. of the total costs of modifying the rig to permit
passage (Annexes 55, 37, and 39 to the Memorial). Calculation of
the lime interest depends on four factors; lime spent, total purchase
sum for rig, outstanding payments on the rig at the time of delivery,
and the interest rate employed.
383. In the first place, less time than assumed by Finland is
needed for the actual modification works, and, as noted above, the
transportation time from Finland through the Danish Straits cannot
reasonably be said to constitute a delay and should therefore not be
included. Secondly, Finland States the price of a semi-submersible
at USD 200 million. The average cost of the semi-submersible
drilling rigs currently under construction in the world is not USD
200 million but USD 90 million59.Thirdly, Finland's calculation
presupposes that a MODU ispaid cash on delivery with no down
payment or instalments paid prior to delivery. This would be a
highly unusual payment plan. A much more common procedure on
the offshore market would be that a total of 80 per cent. of the
purchase sum is paid in instalments prior to cornpletion of the rig,
OffshoreData Services:Chronology of Offshore Mobile Drilling Rigr 1949-
presenl, Janua28, 1992,Table6.and a final 20 per cent. instalment would be paid at delivery.
Finally, the interest figure of 13 per cent. employed by Finland is
disputed by Denmark. Finland offers no explanation for the choice
of an interest rate of 13per cent. While resewing its position with
respect to the correct rate of interest to be employed, Denmark has,
in order to facilitate comparison, chosen to make use of the figure
of 13 per cent. in the following calculations.
384. According to a calculation of the interest on the
extended delivery time in relation to the removal of thrusters based
on, it is submitted, more realistic premises would then amount to;
13 per cent. on USD 16 million (20 per cent. of USD 90 million)
for 18 days (including an allowance for unforeseen contingencies),
or USD 104,000 as opposed to Finland's USD 2.7 million (FIM
10.8 million).
C. Removal of the Top Part of the DrillingDerrick
385. In the unlikely event that the draught of a semi-
submersible drilling rig cannot be reduced to the maximum
permissible draught in the Drogden, and the rig is to be towed
under the East Bridge, part of the drilling tower or derrick of the
unit would have to be left unassembled until after passage through
the Great Belt. According to the conclusions in Annex 45, none of
the units produced at Rauma-Repola would have had to undergo
this modification as they may al1be towed through the Sound (three
of them only after dismantling of thmsters, however). Modification
of the derrick is therefore an operation to be performed only on a
possible future unit with an unusually deep draught.
386. In such a case, a primary objective would be to take off
as little as possible of the derrick to minimise the lime and cost
needed to execute the final assembly away from the yard. To reduce
the air draught of the semi-submersible as much as possible during
passage, the rig would be ballasted down to the maximum
permissible draught during passage of the bridge. Semi-submersiblesoften have operating draughts in excess of 25 metres, and it is
perfectly feasible to tow the semi-submersible for a short distance
ballasted to or almost to its operating draught. The water in the
navigational route through theGreat Belt is relatively deep. Map V
shows that in an area stretching from at least 10 nautical miles
south to at least 10 nautical miles nonh of the siting of the East
Bridge the water depth in the navigational route is constantly in
excess of 25 metres. This water depth will permit ballasting the
semi-submersible to a draught of at least 23 metres during passage
of the bridge thus minimising the part of thederrick to be taken off.
387. How much of the derrick could be completed at the
yard, and how much would have to be fitted subsequent to passage
will be determined by the air draught of the unit when ballasted to
a draught of e.g., 23 metres. The derrick height must be reduced
sufficiently to give the semi-submersible an air draught of no more
than 65 m when floating with a draught of 23 metres. At this
draught the semi-submersible drilling rigs built byRauma-Repola
would have air draughts ranging between 74 and 97 metres. Thus,
for the lowest semi-submersible rig only the top 9 metres of the
derrick would have to be taken off and fitted afterwards to enable
the unit to pass under the bridge. For the tallest Rauma-Repola
semi-submersible rig the derrick would have to be reduced by 22
metres. As the height of a derrick is approximately50 metres, it is
clear that, in any case, less than half of the derrick will have to be
taken off and refitted after passage of the Great Belt. This
conclusion also holds true for the semi-submersibles that Rauma-
Repola Ofl~hore, according to Table 16 on page 86 - 87 of the
Memorial, has tendered although not built in the period 1984-1991
as far as can be seen from the air draught figures listed by Finland
in Table 16.
388. The cost and time required for the dismantling and
refitting of the top of the derrick would be significantly less than
calculated by Finland in Annex 37. London Offshore Consultants
have made a cost estimate based on the premise that the rig and
derrick will be completed and commissioned in Finland.Subsequently, the top part of the derrick will be lifted off in one
piece and put upright on the rig for transport through the Great
Belt. Instead of using the older, and more simple type of derrick
installed on the semi-submersibles hitherto built in Finland, the cost
estimates have been based on the taller and more complicated
derricks with top mounted motion compensators now used on most
modem semi-submersible rigs. The rig would then be towed to e.g
Gothenburg in Sweden or Stavanger in Norway where crane
capacity 'isavailable for lifting the top of the derrick ont0 the rig in
one section.
389. For purposes of the cost estimate, quotations have been
solicited from experienced yards and operators of crane vessels etc
in Sweden and Norway (appendixed to Annex 45). On the basis of
time estimates and budgetary prices submitted by these contractors,
London Offshore Consultants have compiled a comprehensive cost
calculation according to which taking off the top part of the derrick,
securing it on the rig, and lifting it back and installing it finally on
the rig will take a total of 24 days and mn to a total expense of
approximately USD 2,380,000 (including a sizable allowance for
contingencies both in terms of time needed and costs, but excluding
possible consequential costs from the extension of the delivery
time).
390. The Finnish calculation of extra costs flowing from
subsequent assembly of a derrick in Annex 37 is exaggerated in a
number of respects. From the amount of time allotted to the
disassembly and reassembly of the demck (four months), it is clear
that Finland presupposes that the whole demck is to be dismantled.
This is an infinitely more complicated and time-consuming task
than the one proposed by Denmark". What is more, the method
Finlandhas submitteda statementfrom the reputed rigdesigners Friede &
GoldmanLtd. onthe estimateddurationof disassemblyand reassemblyof a fully
outfitted drilling derrick on a MODU (Annex 410 the Memorial). Simila10
Finland'sown time and cost calculations.Friede& Goldman'sestimateof a total
work lime of 5- 7 weeks is based on the assumptionchatthe whole derrickwill
have to be dismantledandeinstalled. presupposed by Finland is completely unnecessary as it is only
necessaryito take off as much of the derrick to give the rig it anair
draught of 65 metres dunng passage under the East Bridge. The
method proposed in Annex 45 is simply to lift off the top part of
the demck with the aid of a floating Crane, leaving at least the
lower half of the derrick with its hydraulic, electrical, and
mechanical systems intact. Leaving these systems unaffected also
means that Rauma-Repola may run its test drills on this equiprnent
inFinland. The tests to be conducted on the ng subsequent to final
assembly of the derrick will be very limited and will involve only
the small amount of equipment directly affected by the dismantling
and reinstallation of the derrick. Presumably, it is such extensive -
and supeffluous - test runs that have led Finland to estimate that the
' refitting of the derrick will take ten weeks rather than the two
weeks estimated by the yards.
391. Finland's estimate of the extension of the delivery
penod to four months as opposed to the total of 24 days estimated,
by London Offshore Consultants on basis of the estimates from the
yards also leads to excessive budget figures for crew salary and
expenses, maintenance of rig operation during reassembly of
derrick, insurance, and other time-related components of the cost
estimate. All in all, Finland has estimated the total costs of the
modification job to USD 6,057,236 (FIM 23,017,500) against
London Offshore Consultants' quotation-based estimate of USD
2,380,000 (both figures exclude interest on the extension of time of
delivery).
392. Denmark again disputes Finland's calculation of the
interest on the extension of the time of delivery as unreasonable.
Denmark's arguments against Finland's methodof calculation are of
course parallel to the ones advanced in paragraphs 381 - 383 on
removal of the thrusters of a semi-submersible. The calculations
should thus be based on a rig pnce of USD 90 million with a final
payment of 20 per cent. of the total purchase sum outstanding at the
time of delivery, and most importantly of an extension of the
delivery time of only 24 days as opposed to Finland's suggestionoffour months. The interest factor would then amount to: 13 per cent.
of USD 16 million for 24 days = USD 138,666. The total costs of
the modification may then be estimated to USD 2,518,666 which
compares with Finland's calculation of the total costs to USD
14,724,000.
D. Reductionof the Leg Lengthof a Jack-UpRig
393. All jack-ups produced 4 Rauma-Repola, and most other
jack-ups in the world, particularly al1modem units, have draughts
that would allow themto be towed through the Sound without any
type of modification oreven adjustment of the variable loadcarried
on the rig (Annex 35 and Annex 45) The moulded draught of a
jack-up (the distance from the water line to the underside of the
jack-up hull) is usually less than 6 metres. On some older jack-ups
the extremities of the legs, the spud cans, protrude below the hull
increasing the draught of the platform. All new jack-ups, however,
are built with cetractable spud cans that do not add to the draught.
It is therefore extremely unlikely that future jack-ups will
expenence draught problems if towed through the Sound, and
modifications will therefore not be necessary.
394. Should it become necessary for one reason or another to
tow a jack-up under the East Bridge it will be necessary to leave
part of the legs of the jack-up unassembled until after passage of
the bridge. The air draughts of jack-ups in transit conditionVary
between 130-170 metres.It will thus be necessary to fit at least half
and often more than half of the leg sections of the rig north of the
bridge.
395. Jack-up legsare normally welded together in sections,
and neither the procedure of taking off the legs and refitting them
later nor the procedure of completing the constmction of the jack-
up hull in one place and installing the legs in another is an
unprecedented undertaking. 396. Section of the legs of particularly very tall jack-ups are
sometimes removed for long inter-continental transports. In the case
of towage of jack-ups this is done to increase the stability of the
unit, reduce the risks of capsizing and for strength reasons. The leg
sections are then carried either on the deck of the unit or on
accompanying barges. When a jack-up with very long legs is
transported, the legs are subject to strong inertia forces which may
in some cases cause damage to the joints in the steel constmction.
397. A fair number of MODU yards, some of them among
the largest and most successful in the world, are located on rivers
behind fixed bridges or other permanent height constraints with
critical clearances. These yards will complete constmction of the
hull and the legs, and then tow these separately past the height
constraints for final assembly at another location. The situations
faced by these yards is addressed in some detail in paragraphs 403-
410. Suffice it here to say that one of these yards, Marathon Le
Toumeau, in fact the biggest producer of jack-ups in the world, has
to tow the unassemhled unit down the Mississippi River for more
than 350 nautical miles past more than 20 overhead constraints to
have the legs of the rig installed at another yard. This distance is
not very different from that between Finland and the Sound, and it
is worth noting that the maximum free clearance to which this yard
has had to conform is more than 20 metres lower than the clearance
of the East Bridge.
398. Finally, a number of oil exploration and exploitation
sites are located behind fixed bridges necessitating the temporary
removal of most of the leg length of incoming and outgoing jack-
ups. The most important of these offshore hydrocarbon fields
behind fixed height constraints would probably be Lake Maracaibo
in Venezuela. As of May 1992a total of 38 mobile offshore drilling
rigs are at work in Lake ~aracaibo~'. Jack-ups entering or leaving
''OffshoreRigLr~catoVol. 19,No. 5, May 1, 1992
135the area will have to pass the Maracaibo Bridge with its free
vertical clearance of 45 metres.
399. Thus, although the reduction of the leg length of a jack-
up is not expected to become necessary to pass through the Danish
Straits where the Sound will be a perfectly viable route for a wet
tow transport,this procedure is well-known in the offshore world.
London Offshore Consultants have proposed that the jack-up hull be
completed and pan of the legs installed atRauma-Repola up to an
air draught of no more than 65 mètres in wet tow. The remaining
part of the legs are built inFinland and towed on a barge to a
sheltered deep-water sitee.g., in Norway where the remainder of
the leg sections will be installed. This may require an adjustment of
the method of building jack-up legs at Rauma-Repola, but the
method that Rauma-Repola may be required to adopt is a
conventional and acceptable method of building jack-up legs.
400. On the basis of a quotation from the HMV yard in
Norway and the Ugland Crane vesse1 operator also in Norway a
comprehensive time and cost estimate has been compiled in Annex
45. As there will not be any dismantling of the unit at Rauma-
Repola's yard in Finland, the only delay in delivery will be the time
needed to fit the legs after passage of the bridge. This period has
been estimated by the yard to 20 working days, although London
Offshore Consultants have, allowing for various contingencies,
allotted 49 days to complete the assembly. Based on the various
quotations the total price for the subsequent installation of the leg
sections has been assessed at USD 3,741,200. This contrasts with
Finland's calculationof the same job for a duration of three months
and at an estimated cost of USD 6,146,236.
401. Denmark again differs from Finland on the calculation
of the time-interest factor. Finland again assumes the price of the
rig to be USD 200 million. The average price of the jack-up rigs
under construction as of 28 January 1992 was USD 79.6 million,
and Denmark submits that in order to make a reliable calculation it would be more reasonable to employ this figure6'.For purposes of
illustration it may be noted that the constmction costs of a Coral
Design jack-up currently under construction in Vyborg, presumably
the Rauma-RepolalVyborg CO-production,are USD 67 millionh3.
402. Thus, the interest on the extension of the delivery time
in case of modification of a jack-up calculated according to the
pnnciples outlined in paragraphs 381 - 383 totals: 13 per cent. on
USD 15.92 million (20 per cent. on USD 79.6 million) for 49 days,
or USD 277,836. The total cost of the modification of a jack-up
carried out according to the procedure proposed by Denmark will
be USD 4,019,036 vis-à-vis Finland's calculationof a total of USD
10,696,237.
E. MODUBuilding YardsLocated behind Fixed Bridges or
other PermanentHeight Constraints
403. A significant number of MODU building yards in the
world are situated on rivers or in river deltas with permanent height
constraints in the form of fixed bridges or aerial cables between the
yard and the sea. In al1instances the maximum free clearances of
the height restrictions encountered by the yard are around 50 metres
or lower.
404. It has consequently been an integral part of the
production routine of these yards to complete assembly of their rigs
at a site other than the constmction facility. The distances between
the production site and the site where the final assembly and the
commissioning procedure are executed Varyfrom 20 to 350 nautical
miles. In some cases the completion of the legs of a jack-up or the
"Offshore Data ServiceChronologyof OffshoreMobile DrilliRigs 1949-
presenrlanuary 28, 1992.Table 6.
"Ofl~horeRi8 LocatorVol. 19, No 5, May 1, 1992.
137derrick is carried out at a yard that does not belong to the builder of
the MODU (e.g., Annex 54 to the Memorial).
405. These upriver MODU yards, and there are at least 9
such yards located behind height constraints, produce jack-ups,
semi-submersibles, drill ships, submersibles and drilling barges. It is
certainly not correct when Finland asserts that "cases of known
disassembly concem only lightweight structures, do not involve
harsh environment, heavy jack-ups or semisubmersibles" (para. 208
of the Memonal). In fact, the three largest producers of MODUs in
the world in the past 20 years, Marathon Le Tourneau (Vicksburg,
Mississippi) Bethlehem Steel Corp. (Beaumont, Texas) and
Levingston Shipbuilding Co. (Orange, Texas) are al1 located with
permanent height constrictions between their place of production
and the sea. These three yards have pnncipally built jack-ups but
also semi-submersibles and drill ships for use al1 over the world,
including in harsh environments, and they alone account for 143out
the 603 semi-submersibles, jack-ups, and drill ships currently in
existence. All of these 143 MODUs were built in one place and
then towed to another for final fitting of the top sections of the legs
or the top of the derrick.
406. The usual procedure adopted by these yards is to
complete construction of the jack-up with the maximum leg length
and derrick height permitted by the height constraints and complete
construction of the drill ships and the semi-submersibles with as
much of the derrick as allowed by the bridges etc. The remainder of
the leg sections and the top of the derrick are then assembled once
the units have been towed past the height restrictions to reach the
open sea (Annex 54 to the Memonal). It is precisely this well-tested
method that Denmark would expect Rauma-Repola to employ,
should it- in the future- prove necessary to modify the height of
Rauma-Repola's rigs. The only difference is that it will not be
necessary to take as much off the leg sections of a Rauma-Repola
jack-up due to the fact that the clearance of the East Bndge is much
higher than the height constraints encountered by the three above- mentioned American yards on the Mississippi, the Sabine, and the
Neches Rivers and by Scottish MODU yards on the Clyde River.
407. These MODU yards behind bridges or aerial crossings
etc naturally take the relevant height constraints into consideration
in the design of the rig to facilitate completing the rig in stages
(Annex 54 to the Memonal). It has not been demonstrated why
Rauma-Repola could not do the same, if need be.
408. Finland argues that to complete erection of the derrick
or the legs subsequent to passage of the East Bridge "would be
totally unfeasible" and that "the builder would automatically be
disqualified from the competition due to extra costs and extended
delivery time" (paras. 287 - 88 of the Memorial). Finland's
argument is untenable. Marathon Le Tourneau, Bethlehem Steel
Corp., and Levingston Shipbuilding Co. have grown to be among
the biggest producers ofjack-ups in the world despite the fact that
al1 MODUs produced at these yards had to be towed for distances
of up to 350 nautical miles under a number of bridges and aerial
crossings with free clearances of less than 50 metres.
409. Similarly untenable is Finland's argument that if a
requirement for subsequent fitting of the legs of a jack-up "were for
some reason imposed on (Rauma-Repola) alone the Companycould
be disqualified from the competition" (para. 291 of the Memorial).
But Rauma-Repola would not be the only yard. As demonstrated, at
least 9 other MODU yards are faced with height constraints in their
production process, but unlike Rauma-Repola these yards may not
avail themselves of an alternative passageway free of height
constraints (for MODUs with draughts not exceeding 7.2 metres)
nor of a passageway with a free clearance of 65 metres.
410. Out of the 603 semi-submersibles, jack-ups, and drill
ships currently in existence, more than one'fourth or 180 of the
units have been builtat yards which have had to tow their rigs past
fixed height constraints with clearances significantly below that of
the future East Bridge to reach the sea, see Annex 49. CHAPTERVIII.
THE PASSAGEOF CRANEVESSELSTHROUGHTHE
GREATBELTAND THE SOUND
411. A crane vessel is a floating unit with one or more
permanently installed cranes capable of carrying out lifting
assignments at sea. It does not have drilling capability, and,
although primarily used in the offshore business, crane vessels
cannot,strictly speaking, be characterized as offshore vessels. Large
crane vessels are employed during the transport, installation,
operation, and repair of offshore units.
412. Crane vessels include a wide range of very different
units, from regular ships to offshore-type semi-submersibles. In this
Counter-Memorial the term crane vessel is employed as a common
denominator for four distinct types of units;
a) Crane barges
b) Mono-hulls (regular ships) fitted withanes
C) Catamaran vessels (twin-hulls) fitted with cranes
d) Semi-submersible crane vessels.Figure 11: MONO-HULL CRANE VESSEL, THORC , APABLE OF
PASSINGUNDERTHE EASTBRIDGE
413. Lloyd's Register has reviewed the specifications of the
295 registered crane vessels in existence, in particular with regard
to air draught, draught and lifting capacity (35).The great
majonty of the crane vessels are smaller barges or crane ships with
limited lifting capacity. When it comes to lifts in ex1,000of
tonnes, only the 15 largest cranes in the world can be employed.
Such lifts can be carried out by the largest mono-hulls and
catamaran vessels, whereas the heaviest lifts mabeoexecuted
by semi-submersible crane vessels. During transport most crane
barges are towed by tugs, mono-hulls and catamaran vessels sail
under their own propulsion, while semi-submersible crane vessels
are usually fumished with some means of propulsion and may in
some instances be fully self-propelled.Figure12: CATAMARAC NRANE VESSEL E,TPM1601, CAPABLE
OF PASSING UNDER THE EASTBRIDGE
414. The air draughts of the large crane vessels are quite
high, but out of th295 crane vessels in existence today, al1 but
four vesselsan pass either through the Sound or under the future
East Bridge without any technical modification to the vessels'
design.
415. As with any other vessel the air draught of a crane
vessel depends on its draught. All crane vessels are capable of
being ballasted to a draught significantly deeper than their transit
draughts in order to obtain sufficient stability during the execution
of their lifting assignments. The variation in draught, and thereby in
air draught, is particularly significant for semi-submersibles; to
name just one example, Herrnod,one of the largest semi-submers-ible crane vessels in the world, has a transit dra11.5metres
and a maximum operating draught of28.2metres.
Figure 13: SEMI-SUBMERSIB CLEANEVESSEL ,ERMOD,
CAPABLE OF PASSING UNDER THE EASTBRIDGE
416. When detemlining whether the existing Crane vessels
may be able to pass under the future East Bridge, the air draught of
the vessel at transit draught is not decisive as the water depth in the
Great Belt permits the vessel tbe ballasted to a much deeper
draught. As mentionedinparagraph 386,Map V demonstrates that
the water depth in the Great Belt, in an area from at least 10
nautical miles south of the East Bridge to at least 10nautical miles
north of the bridge, is constantly more than25 metres. While
allowing for a sizable underkeel clearance this will enable the large
semi-submersibles to ballast down to a draught of a23lmetres
during passage of the East Bridge. The largest mono-hull crane
vessels may ballast down to their maximum operational draughts,which range between 8 and 10 metres. Ballasting down to the
deepest possible draught is of course normal operational procedure
for a crane vessel when it carries out its lifting assignments.
417. In Annex 35 Lloyd's Register has listed the air draughts
of the world's largest semi-submersible crane vessels at a draught
of 23 metres and the world's largest catamaranand mono-hull crane
vessels at their operational draughts.hese figures show that out of
the 295 crane vessels on the market only three semi-submersibles
and one mono-hull crane vessel will not be able to pass under the
future East Bridge with its vertical clearance of 65 metres or
through the Sound with its minimum water depth of 7.7 metres.
418. The Finnish yard Würtsilü, now KvŒrner Maso-Yards
Ltd., has built one of the largest crane ships in the world, Stanislav
Yudin,see illustration page 85 of theMemonal. With its air draught
of 62.6 metres, Stanislav Yudin may sail under the East Bridge
even at transit draught, 'andthe craft has a draught that has allowed
it to pass through the Sound in the past. One of the largest semi-
submersible crane vessels, McDermotrDB 101, has a transit draught
of only 7.5 metres and could, if it ever had to enter the Baltic, be
towed through the Sound.
419. It is important to note that according to information
available to Denmark, the very few crane vessels that will not be
able to go under the East Bridge (unless temporarily modified) were
neither built nor have they ever operated in the Baltic. Nor can any
need for their presence in the Baltic be demonstrated. The Baltic
will be adequately serviced by the 291 crane vessels that can pass
either under the East Bridge or through the Sound. The largest of
these crane vessels, the semi-submersible Balder ensure the
availability in the Baltic of a single-vesse1lifting capacity of up to
8,100 tonnes. To identify the need for a lifting capacity of this
magnitude in the Baltic is, however, very difficult.
420. Finland's contention that the East Bridge will exclude
large crane vessels from the Baltic is thus plainly wrong. Similarlyuntenable is Finland's argument that the exclusion of the Large
crane vessels might prevent the canying out of a salvage operation
of e.g., a nuclear powered submarine weighing more than 4,000
tonnes (para. 230 of the Memorial). Firstly, crane vessels with
lifting capabilities of more than double the figure mentioned by
Finland may navigate the Great Belt also after constmction of the
Fixed Link. Secondly, heavy lifting assignments may be canied out
by several smaller crane vessels working jointly rather than one
large unit. This is in fact oftendone due to the high mobilization
costs of the very large crane vessels and the higher degree of local
availability of smaller crane vessels.
421. Thus, the East Bridge will not prevent even very large
crane vessels from being taken into the Baltic should the need for
assistance from these very large units arise in the future. Even more
relevant, however, is the fact that the Fixed Link will leave the
existing traffic of crane vessels through the Danish straits
completely unaffected. None of the crane vessels which have been
built or which have previously had lifting assignments in the Baltic
will be prevented from making passages through the Danish straits
in the years tocome. CHAPTERIX.
THE EFFECTOF THE GREATBELT PROJECTON THE
BUILDINGOF OFFSHOREUNITSIN FINLANDAND ON
OFFSHOREOIL ANDGAS ACTIVITIES IN THE BALTIC
SEA
A. Effectson the Buildingof OffshoreUnits
422. In the Memorial (paras. 264 - 269) Finland gives an
account of the investment made at the Rauma-Repola Offshore
shipyard and at the Tahkoluoto harbour of the City of Pori. Finland
claims that in the period 1983 - 1985 investments totalling USD
46.1 million have beenmade to enable Rauma-Repola OffshoreOy
to compete on the offshore market.
423. Finland has argued that the lack of orders at the Finnish
shipbuilding industry for offshore units is attributable to the Great
Belt ProjectM.It is deplorable that the Govemment of Finland will
introduce allegations of this nature in proceedings before the
International Court of Justice.
424. According to Table 17 of the Memorial (p. 88) in the
six years following the completion of the investments claimed to
have been undertaken in 1983 - 1985 to enable Rauma-Repola
Offshore Oy to compete on the offshore market, one MODU was
delivered from Rauma-Repola Offshore 0~~~. Within the same
Requestfor the Indication of Provisional Measures,para. 12,andstatementby
counselof Finland, Sir Ian Sinclair, 1 July 1991.
" The MODU stated by Finland to have been delivereRauma-Repola
Offshore Oyn 1991 was actually delivered VyborgShipyard, Russia, but
built in cooperationRauma-RepolaOffshoreOyIt was the jackMurman-
skaya,which was towed through the Great Belt on its delivery voyage in August
1991with anactual draught of 6.5 metres.This draught would alsoitaveallowed
to go tbrough the Soundseepara.327. time period shipyards outside Finland delivered 34 MODUs, see
Table 17on page 88 of the Memonal.
425. According to the information given in Table 16, Rauma-
Repola Offshore Oy has in the period from 1984 - 1991
unsuccessfully tendered 6 semi-submersibles including one floating
production vesse1 and in the penod from 1988 to 1991
unsuccessfully tendered 10 jack-ups. Finland has failed to
demonstrate that the lack of success of Rauma-Repola Offshore Oy
has in any way been caused by the Great Belt Project. In so far
orders for the rigs tendered by Rauma-Repola Offshore Oy have
been placed at other yards, the reason has to be found in Rauma-
Repola Offshore Oy's lack of ability to compete, not in the Great
Belt Projecf6.
426. The depressed situation of the Finnish offshore shipbuil-
ding industry is of course also affected by the general economics of
the oil market. Since the mid 1980s, the rig building industry have
been in a state of recession. In the second half of the 1980s the
offshore yards only delivered 43 MODUs, whereas the period 1980
- 84 saw 319 new deliveries.
66 The 1991 AnnualReport fromRepolaCorporation.the parentCompanyof
Rauma Repola Offshore Oy,plainly states that "(d)emandfor the products of
Rauma-RepolaOffshoreOy faileIOpick up duringthe year,and majorworkforce
reductionsere necessary." 427. The outlook for the offshore contract drilling industry
remains bleak6'. Major oil companies have announced substantial
cuts in their exploratory expenditures for 199268.
428. The market for mobile offshore rigs have showed a
steadily falling trend over the past years with no indications of a
change in the near future. The number of units is decreasing as
older rigs are removed from the market without being replaced.
Still, supply far exceeds demand. Supply and demand from January
1988 -May 1992 for jack-ups and semi-submersibles are shown on
Tables III - IV.
'' An editorial comment in OffshoreRig Neuirlefrerdescribes the market
situation in theollowing way: "Let's face il, the offshore contract drilling industry
is in a mess...In hetter times (and this is part of the current prohlem), new rig
orders were so commonplace as to become almost non-events. Today.an order for
any rig, regardless of size or design, is noteworthy (OffshoreRig Newslerrer,Vol.
18, No. II, November 1991 (Offshore Data Services. Houston, Texas)).
a See OffshoreRig NewslerrerV, ol. 18, No. 11, November 1991 (Offshore Data
Services. Houston. Texas). TABLE 111
OFFSHORE RIO LOCATOR MAY 1892PAOE 6
JACKUP UTlLlZATlON
O COPYRIQHTOFFSHORE DATASERVICES INC.. 1882OFFSHORE RIQ LOCATOR MAY 1002 PAQE 6
QCOPYRIQHT OFFSHORE DATA SERVICES INC.. 1002 429. The reduced demand for mobile offshore drilling units
has depressed the rates. Day rates for hiring the largest type of jack-
ups employed in the North Sea have dropped from USD 52 -
65,000 in the beginning of 1991 to USD 28 - 39,000 in the
beginning of 1992. Day rates for the largest semi-submersibles
employed in the North Sea dropped from USD 40 - 60,000 to USD
32 - 43,500. Similar decreases have hit other types of jack-ups and
semisubmersibles employed in the North Sea. Day rates for offshore
rigs working in the Gulf of Mexico, Southeast Asia and West
Afnca have seen equivalent de~reases~~.
430. The surplus capacity of rigs on the offshore market has
caused a sharp decline in orders for new offshore rigs.
431. Against this background, it is difficult to see the validity
in the Finnish point of view that the Great Belt Project have had an
adverse impact on Finnish shipyards' ordersfor MODUs. As for the
future, reference is made to Chapter VI - VI1of Part 1, where it is
explained to what extent the Great Belt Project has any impact on
the transport of MODUs through the Danish Straits.
B. The Effects on Offshore Oil and Cas Activities
432. Finland claims that the Great Belt Project adversely will
affect the conditions for offshore oil exploration in the Baltic Sea.
Based on the assumption that the Great Belt Project in its present
form will separate the Baltic Sea from other offshore exploration
areas, a picture is painted of the oil industry being subjected to the
exploitation of "a monopolistic contractor" dominating the Baltic
Sea (para. 323 of the Mem~rial)'~.
" OffshoreRigLocaror Vol. 19No. I Janua2, 1992,OffshoreDataServices,
Houston.Texas.
'OAccordingto Finlandthe BalticSeacontainsa substantialoil andgaspotenti-
al. Publiclyavailableseisrnicdatado not.however, suppontheFinnish presentation
of theBalticSea asan areawitha highoil andgas potential. 433. The Finnish assumption is wrong. All existing drill
ships, almost all, at least modem, jack-ups and most semi-
submersibles can pass through the Sound without any technical
modifications, see Annex 35. These many hundred rigs are of
course operated by a multitude of rig owners, and the economic
competition for exploration work in the Baltic Sea will be similar to
the competition in other parts of the world. The Finnish notion of
"a monopolistic contractor" in the Baltic Sea has no place in reality.
434. Finland has recently tried to rally support within the oil
industry for its attempt to stop the Great Belt F'rojectin its present
form. The Govemment of Denmark has leamt that the Government
of Finland has approached a major oil company with offshore
interests in the Baltic area asking the company to support Finland in
its allegations that the Great Belt Project would be an obstacle to
future oil and gas exploration and exploitation in the Baltic. Despite
persistent endeavours from the Finnish Government the oil company
declined. CHAPTERX.
THE GREAT BELTPROJECT ANDOTHERBRIDGES
AND TUNNELSIN THE WORLD
A. The Similarity betweenthe GreatBelt Bridgeand other
Bridges acrossInternationalStraits
435. Finland claims that the Great Belt Bridge is unique as it
is alleged to be the "only obstruction" across a temtorial sea
constituting part of an international strait (paras. 324326 of the
Memonal).
436. First, it should be recalled that the Great Belt Bridge is
not an obstmction to international navigation. Ali existing ships
using the Great Belt will continue to be able to go through the
Great Belt in the future, see paragraphs 195 -203. The two sailing
ships that have been identified as being unable to pass under the
East Bridge have never plied the Great Belt. As al1sailing ships in
the world, these two vessels have draughts that allow them to pass
through the Sound. As for MODUS, al1 rigs built by Finnish
shipyards, Save three, can pass the Danish straits without any
modifications, and the remaining units can pass subject to relatively
moderate modifications. Do these facts warrant the use of the words
"an obstacle - a definite obstruction""? The fact remains that
international shipping is notoing to be hampered by the Great Belt
Bridge.
437. Finland's description of the Great Belt Bridge as being
unique because of "cmcial differences" between the planned Great
Belt Bridge and al1 other existing bridges in the world begs a
question of law. Finland argues as if a relevant distinction can be
drawn between international straits through interna1 waters and
international straits through territorial waters. The distinction
" Para.330 of the Mernorialalleged by Finland is clearly not a valid one, especially not when
applied to the passage régimein the Danish straits.
438. F'rincipally, the right of passage through the Danish
straits is governed by the 1857 Treaty for the Redemption of the
Sound Dues. Without going into the details of the Treaty, which
will be addressed in paragraphs 661 - 682, suffice it here to
mention that under the Treaty, Denmark has taken upon itself the
obligation to let merchant ships pass unhampered through the
Danish straits. This right of passage obviously exists irrespective of
the legal status of the waters in the strait. The right of passage
cannot be rendered obsolete through Denmark's unilateral actions
e.g., by a pronouncement that a particular part of one of the Danish
straits shall no longer be territorial sea but rather internal waters,
notwithstanding the justification of such a step under international
law. Thus, there is no difference in law between the right of
passage through the Great Belt where the navigational route
traverses only territorial sea (and high seas), the main navigational
route through the Sound which also passes through internal Danish
waters near Copenhagen, and the Little Belt which in its entirety is
internal waters.
439. But the same result would follow if the right of passage
through the Danish straits were governed exclusively by general
international law. Article 16, paragraph4 of the 1958 Geneva Con-
vention on the Territorial Sea and the Contiguous Zone provides
that there shall be no suspension of the innocent passage of foreign
ships through straits which are used for international navigation
between one part of the high seas and another part of the high seas
or the temtorial sea of a foreign State. The right of innocent
passage through international straits laid down in this provision
does not distinguish between an international strait constituted by
internal waters and an international strait constituted by tenitonal
waters.
440. The fallacious nature of the Finnish distinction is further
illustrated by the mles goveming the coastal State's right to drawstraight baselines thereby converting temtonal seas to internal
waters. Coastal States have the freedom, within recognised limits
set by international law, to draw straight baselines. Whether or not
a coastal State has exercised its discretion to draw straight baselines
with the effect of enclosing as internal waters areas which had
previously been considered pari of the territorial sea or the high
seas cannot be decisive for the extent, let alone the existence, of the
right of innocent passage through an international strait. The same
principle applies in the event the establishment oa straight baseline
has the effect of enclosing as internal waters areas which previously
had been considered part of the temtonal sea or the high seas. In
such cases the right of innocent passage will continue to apply to
those waters, see paragraph 2 of Article 5 of the 1958 Geneva
Convention on the Territorial Sea and the Contiguous Zone.
441. Ordinance No. 437 of 21 December 1966 on the
Delimitation of the Temtorial Sea delimits the Little Belt and the
Copenhagen Road area with the Drogden Channel as intemal waters
(Annex 50). In accordance with intemational law Article 3 of the
Ordinance provides that this delimitation of areas as intemal waters
shall not entail any restriction in the existing right of passage for
foreign ships through the parts of the internal waters of the Little
Belt and the Sound which are normally used for such passage.
442. It is submitted that the distinction between internal
waters and territorial sea has no bearing on the right of passage
through an intemational strait. Therefore, the fact that the EastBridge will cross an international strait constituted partly by
temtorial sea does not make the Great Belt Project unique7'.
B. Various Types of International Waterways
443. An international strait is one such type of waterway.
Certain geographical, jurisdictional and functional criteria must be
fulfilled in order for a waterway legally to constitute an
international strait. Thus, in legal' terms a waterway can be
classified as an international strait when the following elements are
present. The waterway in question must be a natural watenvay
between land masses connecting one part of the high seas or an
exclusive economic zone and another part of the high seas or an
exclusive economic zone or the temtorial sea of a foreign State.
Secondly, the waterway must be under the navigational jurisdiction
of the coastal State or States concerned, i.e., it must be covered by
the temtorial sea(s) or internal waters of the State or States
concerned. Thirdly, the watenvay must be used for international
navigation.
444. A canal is another type of waterway. An inter oceanic
canal is an artificial internal waterway connecting one part of the
high seas or an exclusive economic zone with another part of the
high seas or an exclusive economic zone. Due to the artificial
nature of a canal, in principle canals are to be distinguished in
international law from natural waterways such as straits. In the
72In support of the view that the Sound is not a feasible route Finland argues
that Drogden is Danish intemal waters (paras. 82- 84 of the Memorial). As
demonstrated above this is not a valid argument. Although the Drogden Channel
today lies within Danish intemal waters, the right of innocent passage continues ta
apply because the Drogden Channel is pan of an international strait, which in its
entirety is subject a régimeof innocent passage under the mles of the 1857
Treaty of Copenhagenas well as the 1958Geneva Convention on the Territorial Sea
and the Contiguous Zone. The right of passage through the main navigational route
through the Sound, and thereby through the Drogden. is indeed derived from
internationalaw not merely fmm "local custom" as wrongly alleged by Finland in
the Memorial (para. 84).absence of express treaty provisions, it cannot be assumed that
international law imposes restrictions upon a State in virtue of its
own creative act in providing a new navigational connection.
445. However, the State in question can by treaty or by
unilateral declaration accept the establishment of an international
régime for an artificial interna1 waterway such as a canal.
Consequently, when such a régimegives free access and unimpeded
navigation to ships of al1nations, the legal status of a canal can be
compared with the legal status of an international strait, and bridges
over such canals then become of interest to the present case.
446. Bridges across entrantes to major ports served by
international shipping and bridges across waterways used for
international navigation will also be dealt with, as international
shipping is concerned more with trade and transport than with the
legal régime goveming the different watenvays.What counts from
the point of view of merchant vessels are the actual conditions
around the world for navigation including entering and leaving
ports.
C. Bridgesacross InternationalStraits
1. THE BRIDGE SCROSS THE LIPLE BELT
447. The first bridge ever erected across an international
strait was the Little Belt Bridge in 1935 with a vertical clearance of
33 metres (Figure 14).The Government of Denmark considered this
bridge to be in accordance with international law, and no protests
were conveyed to Denmark as a result of the construction of the
bridge.
448. In 1970 another bridge with a height of42 metres was
erected across the Little Belt. 2.THEBRIDGES ACROSS THE BOSPHORUS STRAIT
449. The Strait of the Dardanelles joins the Mediterranean
Sea to the Sea of Marmara, and the Strait of the Bosphorus joins
the latter to the Black Sea. The straits are connecting two paris of
the high seas, and they are both frequented by international
shipping.
450. The Bosphoms Strait somewhat resembles a river in
being narrow with abmpt and angular windings and a strong
current. The length of the Bosphoms Strait is approximately 17
nautical miles. At thearrowest point the strait is 0.5 nautical miles
wide, and it has a minimum depth of 36 metres in the navigation
channel. The Bosphoms Strait is indisputably an international strait.
A status unaffected by the fact that the strait is interna1 waters
enclosed by straight baselines (paras. 437442).
451. The passage régime in the Turkish straits (the
Bosphoms and the Dardanelles) has been regulated by several
conventions, the most recent one being the Montreux Convention of
1936.This Convention provides for complete freedom of transit and
navigation formerchant vessels of al1nations in time of peace and
war, subject only to taxes, charges, and sanitary measures
authonsed by the Convention, and to the right of Turkey to refuse
passage to merchant vessels of States at war with Turkey. As for
warships, in time of peace a limitation is placed only on the number
and tonnage of vessels of non-Black-Sea Powers. Vessels of Black-
Sea Powers are not subject to limitations placed on the tonnage if
the vesse1concerned pass through the straits singly, escorted by not
more than two destroyers. In time of war, if Turkey is not a
belligerent, warships enjoy complete freedom of transit and
navigation through the straits only subject to the above-mentioned
limitations. If Turkey is a belligerent, the passage of warships shall
be left entirely to the discretion of the Government of Turkey.
452. Considering that the Montreux Convention provides for
complete freedom of passage for merchant vessels of al1nations inFigure14: THEFIRSTLITTLEBELTBRIDGE
Figure 15: THEFATIHSULTANMEHMET BRIDGE time of peace, it is noteworthy that bridges havebeen erected over
the Bosphoms Strait.
453. In 1973 the first bridge - the Bosphoms Bridge : was
erected across the Bosphoms Strait. The bridge has been
constructed as a suspension bridge with a vertical clearance of 64
metres. The bridge has a total length of 1,470 metres containing a
main span of 1,074 metres. The bridge carries a six-lane highway
and Iwo sidewalks.
454. In 1988 another bridge - also with a vertical clearance
of 64 metres - was constmcted across the Bosphoms Strait 5.5
kilometres north of the previous bridge. The second Bosphoms
bridge, named the Fatih Sultan Mehmet Bridge, has a main span of
1,090metres and carries an eight-lane motorway and Iwo sidewalks
(Figure 15).
455. The Bosphoms bridges have to be passed by al1ships to
and from the Black Sea, which is today surrounded by seven States:
Bulgaria, Rumania, Moldavia, Ukraine, Russia, Georgia, and
Turkey.
456. The Rumanian Ministry of Industry has in a recent letter
to the Danish Embassy in Bucharest explained that theRumanian
Shipyard Galarisince 1976 has delivered drilling platfonns of the
jack-up type for offshore drilling use in the Black Sea. The letter
further explained that there would be no difficulty for such a type
of platform to pass under the Bosphoms bridges as the legs of the
platforms are made of parts that can be welded after passage under
the bridges (Annex 51).
3. THE PROPOSED BRIDGE ACROSS THE STRAIT OF MESSINA
457. The Strait of Messina separates the Italian island of
Sicily on theWestfrom the Italian mainland on the east, and joins
the high seas of the Tyrrhenian Sea, northward, to those of theIonian Sea, southward. The length of the strait and its approaches is
approximately 27 nautical miles, and it has a minimum depth of 7 1
metres in the navigation channel. The strait, which lies within the
territorial sea of Italy, is at the narrowest point approximately 1.6
nautical miles wide.
458. Connecting two parts of the high seas and being used
for international navigation, the Strait of Messina is an international
strait.
459. In 1988 the Government of Italy informed the Sub-
Committee on Safety of Navigation of the International Maritime
Organization (IMO) on a project for the construction of a single or
double span bridge across the Strait of Messina (Annex 52).
460. In a report to the Maritime Safety Committee the Sub-
Committee noted that the minimum clearances foreseen for either of
the proposed bridges "...would be not less than 64 metres in the
central span of 1,400 metres for the single span and 500 metres for
the double span proposed." The Sub-Committee was of the opinion
that "...these minimum clearances should be more than adequate
for ships likely to use the Strait of Messina, so far as can be
foreseen" (Annex 53). In May 1989, the Maritime Safety
Committee in a report endorsed the Sub-Committee's opinion on
the navigational aspects of proposais to construct a bridge across
the Strait of Messina (Annex 54).
461. Information from the Stretto di Messina S.pA. - the
state-owned Company which has been granted a concession of
undertaking preliminary investigations, planning, construction and
operation of afixed link across the stra-tshows that the alternative
project for a submerged bridge across the Strait of Messina has
been abandoned for technical reasons. The final bridge design,
Progetto di Massima Definitivo, which is expected to be submitted
to the Italian Parliament for approval, provides for a single span
suspension bridge with a vertical clearance of 64 metres, a total
length of 3,660 metres, and a main span of 3,300 metres (Figure 16).Figure 16: MODEL OF THE MESSIBRIDGE
l
Figure 17: THEVERRAZANN OARROWSBRIDGE 462. It is thus not correct when Finland asserts that the
alternative of an undenvater bridge at a depth of 30 metres is being
actively considered (para. 426 of the Mernorial).
D. Bridges across Canals open to InternationalShip Traffic
1. THE BRIDGES ACROSS THE KIELCANAL
463. The German Kiel Canal is approximately 53 nautical
miles long and connects the Baltic Sea with the North Sea. It was
constructed during the period 1887 - 1895 and has a width of 162
metres and a depth of 11 metres.
464. The fact that a total of 13 bridges -al1with a vertical
clearance of 42 metres -have been erected over the Kiel Canal has
not prevented this navigational route fromking the most important
connection in terms of number of ships between the North Sea and
the Baltic Sea73.The Kiel Canal bridges have been constructed
between 1894 and 1989.
465. During the period 1919 - 1936, the Kiel Canal was
governed by the Peace Treaty of Versailles. Article 380 of the
Treaty is of special interest:
"Art.380: The Kiel Canal and its approaches shall be
maintained free and open to the vessels of commerce and of
war of al1nations at peace with Germany on terms of entire
equality."
466. In 1923 the status of the Kiel Canal came before the
Permanent Court of International Justice in the Wimbledon case.
The Court by a majority, in giving judgement against Germany,
" In 1988a total numberof 34.300 vessels passed through theKiel Canal. The
same year 17,900vessels passed throughthe GreatBelt.held that the Canal had been intemationalized by the Treaty of
Versailles as the Court in its judgement said:
"...that the terms of Article 380 are categorical and give
rise to no doubt. It follows that the canal has ceased to be
'an intemal and national navigable watenvay, the use of
which by the vessels of states other than the nparian state is
left entirely to the discretion of that state, and that it has
become an international watenvay intended to provide under
treaty guarantee easier access'to theBaltic for the benefit of
al1 nations of the world. Under its new régime, the Kiel
Canal must be open, on a footing of equality, to al1vessels,
without making any distinction between war vessels and
vessels of commerce, but on one express condition, namely,
that these vessels must belong to nations at peace with
Gennany.", see P.C.IJ. 1923 Series A,No.1, p.22.
2. THEBRIDGES ACROSS THE PANAMC AANAL.
467. The Panama Canal, which opened to traffic in 1914, is
approximately 44 nautical miles long, has a width that varies
between 70 - 300 metres, and a minimum depth of 12.4metres. The
Panama Canal ranks as one of the most important artificial
waterways in the world.
468. In 1942 and 1962 two bridges were erected across the
Panama Canal.
469. During the penod 1901 - 1977, the passage régimein
the Panama Canal was govemed by the Hay-Pauncefote Treaty
between the United States and Great Britain, signed 18 November
1901, and the Hay-Varilla Treaty between the United States and the
Republic of Panama, signed 18 november 1903. Both Treaties
provide for a canal that, when constmcted, shall be neutral in
perpetuity, and free and open to vessels of commerce and of war of
al1nations,'on tenns of entire equality. 470. The status of the Panama Canal was discussed in the
Wimbledon case in which the Permanent Court of International
Justice referred to the Suez and Panama Canals as precedents which
were:
"merely illustrations of the general opinion according to
which when an artificial waterway connecting two open seas
has been permanently dedicated to the use of the whole
world, such watenvay is assimilated to natural straits in the
sense that even the passage of a belligerent man-of-war does
not compromise the neutrality of the sovereign State under
whose jurisdiction the waters in question lie.", see P.C.IJ.
1923 Series A, No.1, p. 28.
471. In spite of the fact that the Panama Canal according to
the Treaties mentioned above is free and open to passage of vessels
of al1nations, bridges have been erected across the Canal.
472. In 1942 the first bridge -the Miraflores Bridge - was
erected across the Panama Canal. The bridge was constructed as a
swing bndge.
473. In 1962 another bridge - the Thatcher Ferry Bridge -
was erected as a fixed arch bridge across the Panama Canal. No
protests from other States were conveyed to the Govemment of
Panama as a result of the construction of a bridge with a vertical
clearance of 60 metres, a total length of 1,650 metres, and a main
span of 344 metres.
474. It must be assumed that the Govemment of Panama -
when deciding to build a fixed bridge across the Panama Canal -
held the view that the bridge did not violate its treaty obligation to
ensure free and open passage of vessels of al1 nations. No legal
controversy surrounded the Govemment's decision to build a fixed
bridge with a vertical clearance of 60 metres, presumably because
the bndge was not considered ta be an impediment to free passage
through the Canal. E. Bridges across Entrances to Major Ports Served by
International Shipping and across Waterways Used for
International Navigation
1. BRIEGES ACROSS ENTRANCE SO MAJORPORTSSERVED BY
INTERNATIONA SHLIPPING
475. As illustrated below, bridges across entrances to
important ports in the world are not an uncommon feature.
Bridges: Vertical
clearances:
Verrazano Narrows Bridge, New York 66 metres
Golden Gate Bridge, San Francisco 67 metres
San Francisco-Oakland Bay Bridge, San Francisco 65 metres
Lions Gate Bridge, Vancouver 60 metres
Tagus River Bridge, Lisbon (duttocai topopaphy)etres
Maracaibo Bridge, Venezuela 45 meters
Guanabara Bridge, Rio de Janeiro 63 metres
Sidney Harbour Bridge, Sidney 52 metres
~lvsborg Bridge, Gothenburg 45 metres
Yokohama Bay Bridge, Yokohama 55 metres
476. International shippingcalls extensively on these major
ports notwithstanding the height restrictions set by the above-
mentioned bridges.
477. As stated inparagraph 211 -221, the vertical clearances
of some of these bridges will, due to the importance of the ports in
question, operate as primary design parameters with respect to the
air draught of future ships.
478. The bridges listed above and the Japanese bridges
mentioned below further serve to illustrate that international
shipping has, apparently quite successfully judging from theFigure 18:
THEGOLGATEBRIDGE
O
Figure THEMARACORIDGEFigure 20: THEKANMON BRIDGE
Figure21: THEBISANSETOBRIDGEimportance of the ports concerned, been able to trade on ports with
bridges whose clearances are similar to, or even significantly below,
the clearance of the East Bridge.
2. BRIDGES ACROSS WATERWAYU SSED FOR INTERNATIONAL
NAVIGATION
479. The Kanmon Strait - one of the watenvays connecting
the Japan Sea with the Pacific Ocean - is the strait between the
main island of Japan, Honshu, and the island Kyushu. At the
narrowest point the strait is only a few hundred metres wide, and it
has a minimum depth of 13 metres in the navigation channel. The
Kanmon Strait is intensively frequented by international shipping
calling on major Japanese ports in the Seto Naikai (Seto Inland
Sea)74.
480. In 1958 a highway tunnel was constructed under the
Kanmon Strait. As a result of increasing traffic, studies were begun
in 1962 on the possibility of erecting a bridge across the $trait.
Formal approval for the construction of a bridge was given by the
Minister of Construction in April 1968. In 1973 the bridge'was
completed as a suspension bridge with a vertical clearance of 61
metres. The bridge has a total length of 1,068metres containing six
lanes and a main span of 712 metres (Figure 20).
481. The Seto Naikai is the inland sea between the Japanese
islands Honshu and Shikoku. The Seto Naikai is intensively used
for international navigation, especially to and from the ports of
Osaka, Kobe, and Hiroshima. A total of 18 bridges are to connect
Honshu and Shikoku across the Seto Naikai. One of these, the
Bisan Seto Bridge, is shown on Figure 21.
" As to the history of the Kanmon Strait see Internarional Srrp.ts.
104 -105(London ,947).
165 482. Twelve of these bridges have already been completed.
The remaining six, currently under construction, will be completed
in 1998 - 1999. One of these, the Akashi Kaikyo Bridge, will be
the longest suspension bridge in the world when completed.
483. In the main navigational routes the bridges have been or
will be constmcted with vertical clearances of 65 metres and main
spans of more than 800 metres.
484. It is interesting to note that the number of ships passing
under the Seto Naikai bridges each year is about ten times larger
than the number of ships passing through the Great Belt. The height
restrictions in the Seto Naikai have thus not hampered international
navigation.
F. The Tendency in Bridge Construction
485. From the examples mentioned above it appears that the
vertical clearances of bridges across major waterways used by
international shipping Varybetween 42 and 70 metres, and that the
clearances,concentrate around 60 -65 metres. This also applies to
future bridges that are designed or currently under construction. A
graphical illustration of this is given bélow.The examples illustrate
that the vertical clearance of the East Bridge is in.accordance not
only with the height of other bridges across waterways with a legal
status similar to that of the Great Belt but also with other bridges
that are of comparable importance to international navigation. Figure 22: . VERTICAL CLEARANCE OF BRIDGES ACROSS MAJOR
WATERWAYU SSED BY INTERNAT~ON SAHL~PPING
? - cd W P ' O O O O2
m O O O
O BrookiyL BridéeI' l p
............
.............
5CFirth of Forth Bridge- ......................
O ......
Kiel Canal Bridge+
w
O
O
-
-
O
n
- Quebec Bridge--+ H
N
O
+
m
O George Washington Bridge
San Francisco-OaklanBay Bridge
m Golden Gate Bridge
O
m
O"
T(Panama Canal)Bridge
m.
O
Verrazano Narrons Bridge
Tagus RiverBridge
m. Guanabara Bridge
-2
O Kanman Bridge
Bosporus Bridge
-
m
O
aruto Bridge+
L.. FatihSultan Mehmet Bridge
m Yokohama Bay Bridge BisanSet0 Bridges
O
N Akashi Kaikyo Bridge
O Kurushima Bridges
O ....................
(MessinaBridge) 486. As demonstrated in Figure 22, no tendency in bridge
construction towards increasing the vertical clearance of bridges
across watenvays important for international navigation can be
ascertained. This corresponds with the fact that there has not been
any increase in the air draughts of the largest vessels in recent
years. In fact, the tallest passenger vessels ever built were delivered
in the 1930s, and subsequent generations of very large cmise ships
have been somewhat lower (para. 212 and Annex 37).
487. The tendency in bridge constmction to be observed is
the trend towards increasing the horizontal clearance of the free
span open to ship traffic in order to promote navigational safety.
G. Tunnels under International Straits and Waterways
488. Finland has put much emphasis on the tunnels under the
Straits of Dover and Tsugam and the planned tunnel under the river
Westerschelde. As will be shown in the following sections, these
three tunnels are not relevant to the present case.
1.THETUNNEL UNDER THE STRAIT OF DOVER
489. The Strait of Dover, situated between the south-east
coast of England and the northern coast of France, connects the
high seas of the English Channel to those of the North Sea. In the
narrowest parts of its length, the strait is less than 24 nautical miles
wide and covered by the 12-mile territorial seas of the United
Kingdom and France.
490. In 1963 the British Minister of Transport presented a
report concerning Proposals for a Fixed Channel Link to Parliament.
The report proposed the constmction of either a bridge or a tunnel
across the Strait of Dover. As to a bridge solution the ieport noted
that a bridge with a vertical clearance of 70 metres wou"..allow
the passage of the largest ships in normal weather", see paragraph 1.3 of the report (Annex 55). The report, however, also noted that
whilst a bridge across the strait would have certain advantages, it
would require "... the concurrence of the States principally
concerned with navigation in the Channel", see paragraph 1.9.of
the report.
491. It is worth noting that in 1963 the territorial seas of
France and the United Kingdom did not exceed three nautical miles
from the baselines. Thus, at that lime the Strait of Dover contained
a high seas channel over which France and the United Kingdom
could not exercise sovereignty. Consequently, the 1963Report from
the British Minister of Transport stated that the concurrence of
necessary for the construction of a bridge that
other States was
would cross waters outside the territorial seas of the IWO littoral
States.
492. The statement by the British Minister of Transport thus
cannot be quoted as has been attempted in paragraph 345 of the
Mernorial in support of the existence of a requirement for
negotiations among the States concerned if a bridge across an
international straitis Io be const~cted.
493. Economic reasons ultimately dictated a tunnel solution.
It appears from the conclusions of the 1963 Report that intea rlia
economic considerations caused the bridge solution to be rejected,
see paragraph 1.34of the report. The report concluded in paragraph
5.12 that "...the results of the economic assessment indicate that
the constmction of a tunnel under the Channel can now be regarded
as reasonable from an economic point of view. We cannot reach the
same conclusion about the bridge".
494. At the end of 1971, France had extended the breadth of
its territorial sea from three to twelve nautical miles, subject to a
median fine in the strait, and when the United Kingdom did the
same in 1987, the Strait of Dover, for part of ils length, was wholly
covered by temtorial seas. 495. Throughout the Third United Nations Conference on the
Law of the Sea, France and the United Kingdom supported the right
of transit passage in straits used for international navigation, in the
context of acceptance of the 12-mile limit for the territorial. The
Anglo-French Declaration of 2 November 1988, mentioned in
paragraph 342 of the Memorial, is in conformity with the position
of the two countries regarding new broad straits created by
extension of the territorial seas of the littoral States to twelve
nautical miles, as the Declaration establisheda régimeof navigation
which takes account of the transit passage régime containedin Part
III of the 1982 United Nations Convention on theLaw of the Sea.
496. The legal régime applicable to the Straitof Dover is
thus not similar to that of the Great Belt, which has always been
covered by the territorial sea of Denmark. In the Great Belt, as
explained in paragraphs 726 - 742, the right of innocent passage
will remain unchanged even after the entering into force of the
1982 Convention on the Law of the Sea according to Article 35 (c)
of the Convention.
497. In April 1985 an Invitation to Promoters for the
development, financing, constmction and operation of a Channel
Fixed Link, produced by the British and the French Governments,
was sent out. According to the Invitation, promoters could put
fonvard any proposal for a fixed link in so far as certain
requirements listed in the Invitation were fulfilled. It .was thus
evident that various options for a fixed link were still under
consideration at that time (Annex 56). Concerning the bridge
alternative, it is interesting to note the statement in the Invitation to
the effect that a minimum air draught of 70 metres might avoid the
need to resort to a procedure of prior approval of the IMO.
Notwithstanding the fact that MODUS have been transiting the
Strait of Dover frequently over the past years, the two Governments
thus held the view that a vertical clearance of 70 metres would not
be a violation of international law. 498. In January 1986 the Prime Minister of the United
Kingdom and the President ofFrance announced the decision of the
two Govemments to constmct a tunnel under the Strait of Dover.
On 20 January 1986 the British Secretary of State for Transport
stated in Parliament that the bridge proposal put forward by the
Eurobridge Studies Group was eliminated largely on technical
grounds (Annex 57).
499. A treaty on the Channel Tunnel between Great Britain
and France was signed in Fetimary 1986 and ratified by both
Governments in July 1987. Construction work on the tunnel was
started in 1987, and the work is estimated to be completed in 1993.
2. THETUNNEL UNDER THE STRAIT OF TSUGARU
500. The Tsugaru Strait, located between Honshu, the main
island of Japan, and Hokkaido, the northern island, is at the
narrowest point about 11 nautical miles wide.The Japanese Act No.
30 of 2 May 1977 on the extension of the territorial sea of Japan
from three to twelve nautical miles expressly exempts the Tsugaru
Strait, leaving a channel of open sea in the middle of the strait.
Consequently, al1ships and aircraft enjoy freedom of navigation and
overflight through the Tsugam Strait outside the jurisdiction of
Japan related Io navigation. Therefore the Tsugam Strait does not
legally constitute a strait.
501. At the end of the 1950s.when the decision was taken to
establish a fixed link between Honshu and Hokkaido, itwas on the
basis of the existing technology considered impossible to construct
a bridge across a strait morean 10nautical miles wide and with a
depth of 140 metres. Instead, Japan decided to construct a bored
tunnel under the Tsugaru Strait. The Seikan Tunnel works were
commenced in 1964 and completed in 1985.
502. As a bridge solution could not be chosen, the legal
implications of constructing a bridge which would cross watersoutside the temtorial sea did not arise. Japan's decision to construct
a tunnel under the Tsugaru Strait, therefore, is of no relevance to
the present case as a tunnel was the only option.
3. PLANS FOR CONSTRUCTIO ONF ATUNNEL UNDER THE RIVER
WESTERSCHELDE
503. The river Schelde rises in northern France and is
navigable from the French town of &rnbrai. The river mns through
Belgium and the Netherlands where it flows into the North Sea.
Passing through several States between its source and its mouth,
and being navigable from the North Sea, the Schelde, including its
lower reach, the Westerschelde, must be classified as an
international river.
504. In 1815 the Vienna Congress proclaimed the pnnciple
of free navigation on the international rivers of Europe by
merchant-men of al1 nations. The Congress itself gave theoretical
recognition to that principle in providing for free navigation on
interalia the river Schelde.
505. The Peace Treaty of 19 April 1839 between Belgium
and the Netherlands provides for complete freedom of navigation on
the nver S~helde'~and embodies the provisions of the Final Act
of the Conference of Vienna conceming free passage on navigable
rivers.
506. Finland claims in its Memorial, paragraph353, that the
situation of Belgium in respect of the nver Westerschelde has an
obvious similarity to Finland's situation in relation to the Danish
straits. However, there is no such similarity between these two
situations. The régimegoveming the river Westerschelde provides
" See ArticlIXparagraph3: "(e)tafin queles dits navires neêtressent
assujettisucunevisite, Aaucun retardou entravequelconquedans les rades
Hollandaise..."for complete freedom of navigation, whereas that of the Danish
straits only provides for innocent passage, see paragraphs 72-742.
507. Moreover, Belgium is a riparian State vis-à-vis the
Schelde, and thus has a status quite different from that of Finland.
508. In order to connect two parts of the Province of
Zeeland, which is entirely under Netherlands sovereignty, it is
planned to construct a fixed link across the Westerschelde. A
decision to construct such a fixed link across the river ibetmade
exclusively by the Netherlands authorities, taking into account their
treaty obligations.
509. As can be seen from an answer given by the
Netherlands Minister for Transport in the Parliament of the
Netherlands in December 1991, a decision to opt for a tunnel
solution under the main channel of Westerschelde combined with a
bridge or a tunnel across a secondary channel was made in order to
keep good neighbourly relations with Belgium (Annex 58). It might
be inferred from the answer that the Netherlands authorities
apparently do not consider themselves to be under any legal
obligation to obtain the Belgian authorities' approvalof the project.
The answer further shows that the Netherlands authorities are
conducting technical consultations with their Belgian counterparts to
remove any possible Belgian concern. CHAPTERXI.
HISTORYOF THE DISPUTE
A. The Silenceof Finland
510. By Circular Note of 12 May 1977the Danish Ministry
of Foreign Affairs advised al1 Heads of Foreign Diplomatic
Missions accredited to Denmark of the Great Belt Project which
included a high-level bridge across the Eastern Channel with a free
vertical clearance of 62 metres above sea level. Several Missions
acknowledged receipt of the Note, whereas only the USSR and
Poland reacted in substance to the notification. Finland did not react
to the Note, see paragraphs 66- 70.
511. By Circular Note of 30 June 1987 the Danish Ministry
of Foreign Affairs advised al1 Heads of Foreign Diplomatic
Missions accredited to Denrnark of the Project (Annex 25).The
Diplomatic Missions were informedthat the motorway crossing the
Eastern Channel would be either a high-level bridge or a tunnel.
This Note did not give rise to any reactions frorn foreign States.
512. On 9 September 1988 AIS StorehŒltsforhindelsen
recommended to the Minister for Transport that the roadconnection
across the Eastern Channel should be carried out as a high-level
bridge, and that consequently a tunnel solution should not be put
out for tender. This recommendation was widely reported in the
Danish press at the time. Also foreign news media, including
Finnish newspapers, reported on the latest developments in the
Great Belt Project. On4 Novernber 1988the Minister for Transport
approved the recomrnendation. No formal communication was made
at the timesince the vertical clearance of the East Bridge was not
yet decided, see paragraphs 111- 113.
513. Denmark had no reason to believe that the Great Belt
Project would be detrimental to the interests of Finland, let alonethat Finland regarded the Great Belt Project as a violation of
Finland's rights.
514. On 17 March 1989 the Ambassador of Denmark in
Helsinki paid his farewell visit to the President of Finland. On that
occasion the President expressed his delight to find that there were
no disagreements or problems between Finland and Denmark
(Annex 59).
B. Consultations between the Parties prior to the Court's
Order of 29 July 1991
515. It was not until July 1989 that Finland reacted to the
Great Belt Project i.e., more than 12 years after the first and basic
diplomatic communication concerning the Project was circulated.
On 18 July 1989 thecommercial Department of the Embassy of
Finland in Copenhagen sent a letter to the Danish Maritime
Authority. The Danish Authorities were informed that
representatives of the Finnish industry who had followed the
planning of a fixed bridge over the Great Belt had asked the
Embassy of Finland how large transports by sea through the Danish
Straits could be carried out in the future in case the bridge would
have the dimensions planned. In the letter it was further stated that,
according to available information Finland's large transports, e.g.,
drilling platforms with a free height of 150 metres, would be
obstmcted by the new bridge. If this was the case, Finland
requested information on possiblealternative routes (Annex 60).
516. The Finnish inquiry was answered by the Danish
Ministry of Foreign Affairs in a letter of 29 August 1989
confiming that passage under the bridge would notbe possible for
structures measuring 150 metres in height. The Danish Ministry of
Foreign Affairs pointed out that such structures would be able to
pass through the Sound provided their draught did not exceed
8 metres. Moreover, it was suggested that the rigs be transportedpartly dismantled, thus permitting passage under the Great Belt
Bridge (Annex 61).
517. In the following months, several meetings were held
between representatives from Denmark and Finland in the context
of traditional, bilateral contacts between the two countries on a
variety of subject-matters. Prior to each of these meetings an agenda
was made. Finland did not propose to include the Great BeltProject
in any agenda in advance of those meetings.
518. In a letter of 25 August 1989 from the Finnish State
Secretary Ake Wihtol to the Danish Permanent Under-Secretary of
State Otto Meller a draft agenda was proposed for talks to be held
on 20 September 1989 (Annex 62). In the letter Mr. Wihtol
concluded that he did not have any questions conceming bilateral
matters, thereby confiing the remarks by President Koivisto to
the Danish Ambassador quoted in paragraph 514. At the meeting
between State Secretary Ake Wihtol and Permanent Under-Secretary
of State Otto Meller on 20 September 1989 general political and
economic issues were discussed. At the end of the meeting Mr.
Wihtol told Mr. Meller that the Finnish Embassy in Copenhagen
had not yet received an answer to a letter sent to the Danish
Maritime Authonty conceming the transport of drilling platforms.
Apparently, Mr. Wihtol had not at the time been informed of the
Danish Ministry of Foreign Affairs' reply to the said letter sent
already on 29 August 1989 to the Embassy of Finland in
Copenhagen.
519. On 24 October 1989 the Danish Ministry of Foreign
Affairs issued another Circular Note advising inter alia on the exact
height of the high-level bridge across the Eastem Channel which
was set at a vertical clearance of 65 metres (Annex 31).
520. The Finnish Minister for Foreign Affairs, Mr. Pertti
Paasio, did notraise any question conceming the Great Belt Project
when on 13 November 1989 he had an hour-long conversation in Copenhagen with the Danish Minister for Foreign Affairs, M. Uffe
Ellemann-Jensen.
521. During the regular bilateral consultations on trade issues
between civil servants from the Foreign Ministries of both countries
held in Copenhagen on 5 Febmary 1990 the Finnish representatives
raised the issue of the passage of drilling platfoms through the
Great Belt. The issue had not in advance been placed on the agenda
for the consultations, and the Finnish representatives suggested that
Finnish experts on international law should explain their views to
the Danish Ministry of Foreign Affairs.
522. This meeting took place in Copenhagen on 15 May
1990. Finland stated as a matter of fact that a bridge clearance of
65 metres would render impossible the passage of Finnish MODUS
through the Danish Straits. In the opinion of Denmark the Fixed
Link was in confomity with international law, allowing ships of al1
nations which had used the Great Belt in the past to pass under the
bridge with its clearance of 65 metres. Finland doubted the Danish
interpretation of the concept of innocent passage. The Finnish
delegation stated at the end of the meeting that the consultations
should not be regarded as an official démarche.
523. In a Note of 19 June 1990 the Embassy of Finland,
refemng to the Danish Circular Note of 24 October 1989,expressed
Finland's reservations to the Great Belt Project, making for the first
time an official diplomatic request for bilateral talks before a final
decision was made on the bridge project in order to secure free
passage through the Great Belt for e.g., oil drilling rigs requiring a
clearance of up to 200 metres and a minimum draught of 12metres
(Annex 63).
524. The Danish Ministry of Foreign Affairs replied in a
Note Verbale of 11 July 1990 to the Embassy of Finland in
Copenhagen. The Danish Ministry of Foreign Affairs referred to the
Circular Note of 24 October 1989 in which it was stated that the
Fixed Link across the Great Belt in al1respect fulfils internationallaw by permitting free passage for al1 existing ships which have
used the strait for passage. Consequently, the Danish Ministry of
Foreign Affairs was of the opinion that the points raised by the
Finnish authorities did not offer ground for any negotiations
conceming the Great Belt Project. The Danish authorities would,
however, not reject a Finnish request for consultations between the
respective authorities on any practical, technical possibilities of
solving, in any other way, the problem mentioned by Finland
(Annex 64).
525. On 26 July 1990the Chargéd'Affaires of Finland called
at the Ministry of Foreign Affairs in Copenhagen, acting upon
instmctions from his Government, to inform the Danish authorities
that in the Finnish view the right of passage also included drill rigs.
Denmark maintained the view expressed in the Note Verbale of
11 July 1990.
526. On 30 August 1990 the first technical meeting was held
in Copenhagen at the office of AIS SrorebŒltsforhindelsen.Mr.
Seppo Silvonen, Marketing Director of Rauma-Repola OffshoreOy,
participated in the meeting. Mr. Silvonen explained that Rauma-
Repola Offshore Oy approximately once a year produced a drilling
rig or a similar constmction with an air draught of up to 160
metres. Mr. Silvonen claimed that these constructions were
transported on ships with a draught of 15 metres. At the meeting
Mr. Silvonen stressed that the costs incurred by making the
necessary and feasible modifications of the Rauma-Repola Offshore
products to enable them to pass through the Danish Straits after
completion of the Great Belt Project had to be borne by others than
Rauma-Repola OffshoreOy.
527. In a Note Verbale of 7 September 1990 Finland
suggested that discussions between experts on international law be
simultarieously with the technical negotiations (Anne65).
528. Denmark responded to the Finnish suggestion in a Note
Verbale of 2 October 1990 advising that a technical meeting at AISStorebŒltsforbindelsen had been arranged (Annex 66). The Danish
Ministry of Foreign Affairs explained in the Note that it did not
find it appropriate that purely legal aspects were included in
technical consultations but would be "happy to receive members of
the Finnish delegation during its stay in C~penhagen"'~.
529. The meetings suggested in the Danish Note Verbale of
2 October 1990 took place on 17 October 1990. Legal issues were
discussed at a meeting held in the Danish Ministry of Foreign
Affairs. Each side maintained their different understanding of the
right of passage through the Danish straits. The Danish side also
expressed its astonishment that Finland had not reacted to the
previous notifications of 1977 and 1987.The possibility of finding
a technical solution was discussed at a meeting held at AIS
Storeb~ltsforbindelsen.
530. In a NoteVerbale of 5 November 1990 to the Danish
Ministry of Foreign Affairs Finland suggested a discussion on
inserting a movable span in the West Bridge (Annex 67).
531. While retaining its position that the Fixed Link in its
entirety conformed to the requirements of international law,
Denmark undertook at the request of the Finnish side to investigate
without prejudice the possibility of insertinga passage opening in
the West Bridge, either as a dismountable span or a movable
bridge. However, the conclusion was that for technical reasons it
would not be feasible to modify the West Bridge as requested by
the Finnish side.
532. In a letter of 9 November 1990to the Danish Minister
for Industry the Finnish Minister for ForeignTrade expressed his
wish to discuss the Great Belt issue at the meeting of the Nordic
Ministers for Foreign Trade in Helsinki on 20 November 1990
''The descriptiongiven by Finlandin the Memorial(para.366) of the content
of the DanishNote Verbale o2 October 1990 mighi give a slightly distorted
impressionof the Danishreply.
179(Annex 68). The Danish Minister for Industry explained at the
meeting that the issue did not fa11within her competence.
533. On 23 January 1991 Danish and Finnish representatives
met in Copenhagen for further talks on possible, technically feasible
solutions. Finland suggested e.g., a draw bridge or a tunnel.
Denmark did not consider these proposals to be realistic and
pointed out that the practical solution to the problem would beto
use the passageway through the Sound or to complete the assembly
of the oil drilling rigs after the bridge had been passed. The Finnish
delegation rejected this solution as it would allegedly deprive the
Finnish shipyard Rauma-RepolaOffshoreOy of its competitiveness.
The Finnish delegation never substantiated this claim nor did it put
forward any suggestions as to how a technical solution to its
problem could be found in modifications of the oil drilling rigs. At
this meeting, the issue of drill ships was for the first time
introduced by Finland.
534. The inaccuracy of the factual basis of the Finnish claims
is clearly demonstrated in the~ite Verbale of 19 June 1990 stating
that "oil drilling rigs require a navigational clearance of up to 200
metres, and the depth of water must be at least 12 metres" (Annex
63). The ngs apparently had added 50 metres to their height since
1989. In fact, no rig exists in the world combining an air draught of
150 metres with a draught of 12or 15 metres, and a rig measunng
200 metres still remains to be seen.
535. On 11 Febmary 1991 the Danish Prime Minister
received a letter dated 6 Febmary 1991 from his Finnish colleague
requesting further negotiations to protect Finnish interests (Annex
69).
536. The Danish points of view were summed up in a letter
of 20 Febmary 1991from the Danish Prime Minister to his Finnish
counterpart (Annex 70). 537. After the Finnish Application and Request for the
Indication of Provisional Measures had been filed with the
International Court of Justice in May 1991, the issue was further
discussed between the Prime Ministers of Denmark and Finland
during the visit of the new Fimish Prime Minister to Copenhagen
on 25 June 1991. It was, however, not possible to settle thetter,
although the Danish Prime Minister in a spirit of compromise
suggested several options to be studied, inter alia the possibility of
a further dredging of the Sound.Finland, however, did not respond
to these suggestions, and the oral proceedings on the Request for
the Indication of Provisional Measures opened on 1 July 1991.
C. Negotiations between Finlandand Denmarksubsequentto
the Court'sOrderof 29 July 1991
538. Considering the statement made by the International
Court of Justice in its Order of 29 July 1991, paragraph 30,
welcoming "any negotiation between the Parties with a view to
achieving a direct and friendly settlement", the Prime Ministers of
Denmark and Finland agreed to a meeting between Mr. Ulrik
Federspiel, Permanent Under-Secretary of State for Foreign Affairs
of Denmark, and Mr. Martti Ahtisaari, State Secretary of the
Finnish Ministry of Foreign Affairs, for the purpose of furthering
talks between the Parties.
539. As a first result of these contacts a Danish-Finnish
Technical Working Group was established and its mandate adopted
at a meeting on Sprog@ in the Great Belt on 22 August 1991. At
that meeting, the Finnish delegation had the opportunity to get a
first-hand impression of the actual project in progress. At a
following meeting in Copenhagen, the Finnish delegation had the
opportunity to study the navigational conditions of the Drogden
Channel during an excursion by boat.
540. Denmark did not- oppose the discussion of any
proposals, as can be seen from the mandate for the TechnicalWorking Group, (Annex 72 to the Memorial). The mandate was
balanced in favour of the Finnish ideas as to how the conflict could
be solved. The Finnish view remained the same as before the
Application was submitted to the Court. Finland was only willing to
discuss what Denmark could do to solve theconflict by modifying
the Great Belt Project - not what Finland could do by modifying
their rigs.
541. Denmark did in good faith investigate how to enable the
Finnish oil rigs to pass through the straits after the completion of
the bridge as planned. Finland, uncompromisingly, demanded either
an opening in the bridge, dredging of the Drogden Channel to 15
metres or 10 metres combined with financial compensation, or an
undefined compensation for "lost opportunities". Such claims did
not further the prospects of an amicable settlement.
542. The Finnish proposals to insert an opening in the East
Bridge had been rejected by the Danish side for a number of
reasons, in particular because of the high risks of collision involved
in such a procedure (Annex 72, pages 238 - 239 to the Memorial).
These reasons are further explained in Annex 71 to this Counter-
Memorial.
543. Denmark mentioned the possibility of increasing the
height of the bridge by 3.8 metres. Furthemore, dredging the
Drogden Channel was considered a serious option by Denmark, and
consequently it was proposed to investigate that option, including
the environmental impact assessment. Finally, Denmark was
prepared to offer its help in transporting the Finnish oil rigs through
the Drogden. In mentioning these proposals it was pointed out by
the Danish side that in accordance with the principle of equal
burden sharing the costs involved would have to be shared on a
fifty-fifty basis.
544. During the negotiations through the months of August
and September 1991 the Danish side made it clear that it was
striving to reach a realistic and reasonable settlement before the contracts for the East Bridge were to be signed in mid-October
1991. Thus the Report of the Technical Working Group was
submitted on 8 October 1991 for further consideration by the two
Parties. However, no immediate progress was in sight and on 22
October 1991 the contracts for the high-level East Bridge were
signed. Finland's description of this fact in the Memorial (para.
156) might leave the impression that Denmark was not negotiating
in good faith, an allegation also found in Ambassador Gronberg's
letter of 5 Febmary 1992 to the Registrar of the Couri. However, it
was the mutual understanding during the talks that it was for
Denmark alone to make the decision on the signing of the contracts
for the East Bridge, which would not prejudice theoutcome of the
negotiations or violate the letter or spirit of the Court's Order of 29
July 1991.
545. When the Permanent Under-Secretary of State for
Foreign Affairs of Denmark and the State Secretary of the Finnish
Ministry of Foreign Affairs met again on 26 November 1991, the
only basis for a settlement seemed to relate to the question of
finding ways of accommodating the Finnish MODU yard with a
lump sum. Suggestions to this effect, which should be seen as a
gesture on the part of Denmark, were made only ad referendum.
546. During renewed contact in Helsinki on 27 -28 Febmary
1992 between the Danish Minister for Foreign Affairs and the
President of Finland and Members of his Government it was agreed
to pursue actively the efforts towards reaching a negotiated
settlement. These efforts are still in progress. The latest contact
between the two Foreign Ministers took place in connection with
the Spring Session of the Conference of Nordic Ministers for
Foreign Affairs in Helsinki on 4 - 5 May 1992.
547. Unfortunately, the Finnish position during the whole
course of negotiations has been shifting from the oilrigs originally
subject to discussion to a wider choice of vessels, as reflected in the
concept of "reasonably foreseeable ships" which was included in the
Application and further expanded by the concept of "other specialships" in the Mem~rial~~.Considering the importance of the
offshore industry claimed by Finland during the bilateral talks, this
shift was rather surprising, emphasizing an even more remote risk
for Finnish industry. As has been demonstrated in Chapter IV, Part
1, the Great Belt Bridge creates no difficulties for the passage
through the Danish Straitsof any existing or reasonably foreseeable
ships.
548. It is also regrettable to note that Finland throughout the
negotiations has insisted thatany negotiated result must be based on
the assumption that Finland has an absolute right of passage
through the Great Belt. Denmark would consequently be obliged to
bear al1 costs and burdens to accommodate Finland either by
changing the Great Belt Project or through the payment of
compensation based upon a concept of alleged "lost opportunities"
during the next 100 - 150 years corresponding to the projected
period of the existence of the bridge. This inflexible position on the
part of Finland has not been conducive to the reaching of a
negotiated settlement.
" The Memorial fails to draw attention to this additionby simply stating that
"Finland repeats the submissioiimade in its Application." (pa560 of the
Memorial). PART II
THE LAW CHAPTER1.
DANISH SOVEREIGNTY
549. An essential characteristic of the present case relates to
the fact that the part of the Great Belt where the Fixed Link,
including the high-level bridge across the Eastern Channel,is being
constmcted is in its entiretDanish territorialsea, see paragraph 32
and Maps II - III.As the sovereignty of a State extends to its
temtorial sea - confirmed in Article 1 of the 1958 Geneva
Convention on the Territorial Sea and the Contiguous Zone as well
as in Article 2 of the 1982 United Nations Convention on the Law
of the Sea - it follows that any legal evaluation concerninga State's
activities in its territorial sea must take as its starting point the
sovereign nghts enjoyed by States over their territory. Special rights
for certain foreign States or the international community at large
may restrict the temtorial sovereignty otherwise enjoyed, but such
restrictions are not to be presumed and need a clear legal
foundation. In the words of the Court,
"...(i)nternational law governs relations between inde-
pendent States. The mles of law binding upon States
therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the
relations between these CO-existingindependent communities
or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot there-
fore be presumed ..."(theLotus case, P.C.I.J.1927 Series A,
No. 10, p. 18).
550. As far as the Great Belt is concerned it is the right of
passage of foreign ships - as regulatedinter aliain the Copenhagen
Treaty of 1857 and the 1958Geneva Convention on the Temtonal
Sea and the Contiguous Zone - which may place certain restrictions
on the sovereign right of Denmark to build a bridge of vital interest
to the development of the Danish society. 551. In its Memorial Finland concedes this point by stating
that
"...territorial sovereignty over the land whose coasts border
the strait and over the waters of the strait includes the right
to build a fixed link between the coasts separated by the
strait..."(para. 420).
552. The Memorial (para. 8, p. 5 - 6) further admits that
"Finland is not disputing Denmark's right to build a bridge over the
Great Belt.". In sum both Parties agree that Denmark as the
sovereign strait State has a nght to build the bridge across the Great
Belt. The question is then whether the design of the East Bridge
violates a special nght, enjoyed by Finland, of passage for some
particular ships or certain kinds of craft - a violation which has not
been alleged by any other State; not surprisingly as the high-level
East Bridge across the Great Belt leaves open the possibility of
passage by al1existing ships using that watenvay.
553. Whereas the sovereign right of Denmark over the Great
Belt is well established, the Respondent Govemment has not been
able to identify a special right belonging to Finland which would
prohibit Denmark from building the East Bridge as planned.
554. As to Danish sovereignty over the Great Belt, some
landmarks in the history of the Danish straits should be re~alled'~.
555. For a penod of about 700 years stretching from the very
creation of the Kingdom of Denmark around the year 950 and until
the cession of the provinces east of the Sound to Sweden in the
year 1658, both shores of al1 three straits formed an integral and
uncontested part of Danish territory.
''In general referencis madeto ErikBrüel, internationalStraits(London
1947) Vol.1,pp. 103 -104 andVol 11,pp.18 -28. 556. The fact that the straits formed part of the Kingdom of
Denmark and as such were subject to the exclusive sovereignty of
the King of Denmark naturally meant, at that time, that they could
only be used for fishing, passage or for any other purpose with the
permission of the King of Denmark, which permission might
naturally be given subject to certain conditions.
557. From about the year 1430 one of these conditions was
the imposition of a certain due on every merchant vesse1 passing
through the Sound, the so-called Sound dues, which were later
extended to the Belts.
558. The recognition, hoth express and tacit, which thedues
acquired within a relatively short period of time and through which
they gained a solid basis in law must be viewed in the light of the
fact that the Straits, according to the view prevailing at that time,
were acknowledged to have the same status as other pans of the
territory.
559. With the increase in international commerce and
shipping, the dues gave rise to many protests culminating in their
abolition by the Treaty of Copenhagen of 14 March 1857,combined
with a compensation to be paid to the Kingdom of Denmark by the
participating States.
560. By a Peace Treaty in 1864 the Danish King hadto cede
inter alia the southern part of the western shore of the Little Belt to
Pmssia and Austria-Hungary. After World War 1Denmark regained
this territory.
561. The 1857 Copenhagen Treaty contains in its Article 1
the central stipulations concerning the abolition of the Soiind and
Belt dues. In connection with the abolition of the dues it is in the
same Article laid down that in the future no ship shall under any
pretext whatsoever be subjected to any detention or hindrance on itsway through the Sound or the Belts. In accordance with this
obligation it has since the conclusion of the 1857 Treaty been the
Danish practice to secure a right of innocent passage through the
Danish straits for ships of al1nations.
562. Today the actual practice may be summanzed as
follows, leaving aside the questions relating to passage in times of
armed conflict. The 1857 Treaty in its Article 2 stipulates that the
existing lights and buoys in the Kattegat, the Sound and the Belts,
even outside the Danish territorial sea, shall be maintained and kept
in order, and that Denmark, as in the past, shall study the
possibility of improving the number and functionof these lights and
buoys in the general interest of navigation. The Article furthemore
lays down that Denmark shall keep and maintain a pilot service in
the same waters, use of which shall be at the discretion of the
masters of the ships in passage. On the same conditions Denmark
shall also permit private persons or companies, both Danish or
foreign, to station towage vessels in the Sound and the Belts for
ships in passage which would like to use a towage service.
563. The Govemment of Denmark has always taken great
care in honouring these obligations in the 1857 Treaty. The
obligation concerning lights and buoys is today fulfilled by the
establishment of a buoyage system developed by the International
Association of Light House Authonties and recommended by the
International Maritime Organization. Any inquiry from navigators
suggesting establishment of new aids to navigation or alteration of
the existing marking system is made subject to thorough evaluation
and consideration by the Danish Administration of Navigation and
Hydrography.
564. The Administration of Navigation and Hydrography is
also responsible for the pilotage service whichhas been available in
Danish waters since 1857. For ships in transit the use of pilots is
voluntary as laid down in the 1857 Treaty. 565. As regards the towing obligation in the Treaty, private
shipping companies have always been allowed to station towage
vessels in Danish waters including the Sound and the Belts. Today,
Danish owned towing capacity is available and ready to assist on
short notice. Foreign towage vessels,nter alia German, Dutch, and
Swedish, do also operate from time to time in Danish waters.
566. In addition to the obligations in the 1857 Treaty, the
Government of Denmark has taken many measures to enhance the
safety of navigation through Danish waters, including theStraits.
567. A coastal rescue service has been in existence since
1852, and in ice conditions Danish icebreakers will render free
assistance to shipping both inside and outside the territorial sea.
568. In the 1970sthe increase both in the volume andsize of
the ships navigating the Danish waters in transit to and from the
Baltic Sea led the Government of Denmark to seek international
recognition of the need for a special transit route for ships over a
certain size. The object was to ensure the safety of navigation of
large ships passing through Danish waters andto reduce the risk of
oil, gas or other chemical pollution from the grounding or collision
of tankers.
569. Thus the International Maritime Organization in its
Resolution A. 339 (IX) of 12 November 1975 recommended that
such a routeing system should be established. The Government of
Denmark subsequently established this route, Route T,which with a
charted minimum depth of 17 metres in the area northeast of
Gedser, the southernmost point on East Denmark, covers the waters
from there to Skagen, the northernmost point on the Jutland
Peninsula, through the Eastern Channel of the Great Belt. Route T
includes several traffic separation schemes in particularly dangerous
areas. A detailed description of Route T by Mr. Anker Nissen,
Head of Inspectorate, Danish Administration of Navigation and
Hydrography, is reproduced in Annex 1 to the Memorial. 570. In addition to Route T, which is duly publicized on
official charts, a radio reporiing service (SHIPPOS) for ships in
transit in Danish waters has been established. The purpose of this
radio reporiing service among other things is to facilitate navigation
by informing shipping about the movement of large ships, about
navigational hazards and deviations from normal current, water
level and wave height.
571. In order further to improve navigation conditions in
Route T, especially in the area east of the island of Sams@where
the reef Hatter Barn is situated, and where many groundings have
taken place, the Danish maritime authorities put out several more
buoys and published new and better charts. This did not, however,
prove to be enough to enhance safety, and the Government of
Denmark then decided to dredge a 3 nautical miles long straight
channel through the Hatter Barn area and to introduce a traffic
separation scheme in connection herewith. These measures were
completed on 1 Apnl 1984, and they have resulted in better and
safer navigation.
572. When it specifically comes to merchant ships, they have
since the 1857 Treaty enjoyed a right of innocent passage through
the Danish straits. Merchant ships that have exercised innocent
passage will continue to be able to enjoy this right after the
constmction of the Fixed Link across the Great Belt, as the
clearance of 65 metres will allow al1of these ships to pass under
the high-level bridge over the Eastern Channel of the Great Belt, in
even greater safety than before, because of the reduction of ferry
traffic.
573. Oil rigs and other floating units have since the mid-
1970s occasionally passed through the Danish straits. Various
Danish Governments have not considered these craft as having
exercised a right of innocent passage when they in the past have
been towed or transporied through the Danish straits. This follows
from the 1977Circular Note, see paragraph 135.customary international law, and consequently the Ordinance rnakes
prior permission mandatory for such flights over Danish temtory,
including the straits.
578. Denmark, thus, believes that throughout the centuries it
has been able as a strait State to protect and promote the interests
of the international comrnunity in using the Danish straits as a
passage from the North Sea to the Baltic Sea and vice versa.
579. In drawing this conclusion it must be kept in mind that
the geographical function of a strait is not only concerned with the
particular waters it joins but is equally concemed with the two
territories it separates. From the point of view of Denmark the
straits have throughout the more than thousand years of Denmark's
history been regarded as Danish national territory - which they
surely are - and of vital interest to the well-being and indeed the
survival of the Danes. Dr. Brüel makes this point al the very
beginning of his treatise on international straits where he writes:
"...(t)he function of separation, however, is often merely a
separation in space, because straits, by being the waters,
where the two temtories separated by them, are closest to
each other, frequently becorne the natural place of crossing.
In this way the function of the strait, even if it separates the
territories in space, becomes that of connecting them by
traffic...This function of the strait as a connecting link
between the two territories separated by thern, is the origin
of the "twin-cities", characteristic of so many straits, and
corresponding to the fenyplaces on both sides of the strait.
(Istanbul-Skutari, Messina-Reggio, Brindisi-Durazzo, Dover-
Calais, Korssr-Nyborg, Elsinore-Halsingborg etc.).
Even under the most perfectly developed feny-system the
straits are, however, a hindrance to the traffic. This is
strongly fell to-day when speed is so important. ...a
permanent bridge across an international strait was completed for the first time in history, when the bridge
across Little-Belt was inaugurated on May 14 1935. Plans
for bridges or tunnel-connections have, however, also been
proposed regarding other straits, as f.i. Great-Belt, the
Sound, the Bering-Strait, the Strait of Calais, Belle-Isle
Strait, the Strait of Gibraltar, Palk-Strait. We are, no doubt,
only at the beginning of a fruitful development." (pp. 20 -
23, Vol. 1).
580. This last part of the statement touches exactly upon the
core of the present development in the Baltic as far as traffic is
concerned. Bridges are being built across the Great Belt. A fixed
link consisting of a tunnel, a low-level bridge, and a high-level
bridge across the Sound between Copenhagen and Malm6 have
been agreed to by Denmark and Sweden. Finally, a fixed link is
being considered across the Fcmcr BŒlr between Denmark and
Germany thus completing effective traffic links between the
European Continent and the Nordic countries.
581. This development has been supported by the European
Parliament. In the Report, referred to in paragraphs 170 - 171, on
permanent links across certain sea straits which was delivered by
the European Parliament's Cornmittee on Regional Policy and
Transport it is stated that the Great Belt Bridge would lead to a
very significant improvement in the most important link between
east and West in Denmark and would bring about a significant
improvement in the links between Central Europe and Sweden
(Annex 32). In the Report dated 21 June 1991 referred to in
paragraph 175(Annex 34), the Parliament:
"...Calls on the Commission and Council to recognize the
importance to the Community of a number of major
transport infrastructure projects in which EFTAcountries are
involved and to seek better coordination of those plans ..;
confirms the general European importance of the following
projects for key links between the Community and EFTA,
and for them 10 be given the same favourable terms, where CHAPTERII.
LEGALCONSIDERATIONSPRIORTO THE PRESENT
DISPUTE
587. The legal questions ansing in connection with the
construction of a fixed link across the Great Belt as a consequence
of the special geographic characteristics of the Belt as an
undisputable part of the Danish territorial sea, while at the same
time connecting two parts of the high seas, were carefully
considered by the successive Danish Governments from the very
beginning of the planning of a fixed link, taking in10account the
development in international law.
588. As early as 1936 when the possibilities forconstructing
bridges across the Great Belt and the Sound were discussed, the
Danish Ministry of Foreign Affairs in a letter dated 23 May 1936to
the Danish Ministryof Public Works, stated as its'view that nothing
precludes the constniction of bridges across the Great Belt and the
Sound provided the design of the bndge(s) does not impede passage
to and from the Baltic Sea by even the largest ships existing at the
time, see Annex 1.
589. In his treatise on international straits Dr. Erik also
accepts that bridges may be built across the Danish straits as long
as the strait does not cease to be a navigable waterway. This
cntenon may be fulfilled even though not al1existing ships are able
to pass under the bridge. Dr. Brüel States: "Bridges and
embankments must be so constructed that practically al1ships can
pass under, respectively through, them without such difficulties in
manoeuvring that the strait ceases to be a navigable watenvay." (p.
43, Vol. II).
590. Ten years later the legal adviser to the Danish Ministry
of Foreign Affairs, Professor Max Sorensen, rendered an opinion,
dated 4 Febniary 1957, on the aspects of international law related to
the fixed traffic link across the Great Belt. The opinion waslaterpublished as part of the Report of the Government Commission to
study the possibilities for constructing a bridge across the Great
Belt (para. 42) and is reproduced in Annex 2.
591. Professor Max Serensen takes as his starting point the
fact that the area where the construction of a bridge is being
considered is, in its entirety, the territorial sea of Denmark.
Consequently, the Danish State is entitled to establish such
installations and structures as are not incompatible with any special
rights enjoyed by foreign States, in casu the right of innocent
passage of foreign ships. In evaluating this problem, Professor Max
Serensen reaches the following conclusions:
.
"..1therefore advance the argument that - inrelation to the
evaluation of the question in the context of international law
-the position adopted by the Danish Ministry of Foreign
Affairs in its letter of 23 May 1936 should in principle be
maintained, according to which nothing precludes the con-
struction of a bridge across the Great Belt, always provided
that the bndge structure is made conditional upon such a
design as will not in any manner hamper the passage of the
biggest vessels existing at the present time. This
interpretation should be understood to mean that
(1) the passage clearance has to comply with this
requirement,
(2) the bndge piers must be positioned in a way
which does not hamper passage, and
(3) the requirements set out under (1) and (2)
above must be complied with, at least in
respect of the sea lane(s) which islare
normally used for international navigation
between the North Sea and the Baltic Sea,
but not necessarily in respect of secondary
sea lanes." 592. Following the conclusion of the First Conference on the
Law of the Sea in 1958 and the adoption of the Convention of 29
April 1958 on the Territorial Sea and the Contiguous Zone,
Professor Max Sgrensen rendered an additional opinion, dated 29
January 1962, evaluating the impact of the mles on the right of
passage contained in the Convention on the conclusions reached in
the above quoted opinion of 4 Febmary 1957. The opinion is
published in the Report of the Working Committee, 1968 (para. 49)
and reproduced in Annex 7. A thorough analysis of the relevant
articles as adopted at UNCLOS 1,to which Professor Max SWensen
was accredited as Head of the Danish Delegation, leads him to
conclude:
"..Against the background of the present provisions of the
Convention, there is no doubt that they will involve no
revision of the statement of 12 February 1957 by the
Ministry of Foreign Affair~'~" ...
Therefore, in the light of the wording of Article 16(4) of the
Convention adopted at the Geneva Conference of 1958, it
cannot be deemed necessary to deviate from point (3) of the
statement of 12 Febmary 1957 by the Ministry of Foreign
Affairs.It must still be possible to maintain that the require-
ments for the freedom of navigation do not necessarily have
to be complied with as far as secondary sea lanes are
concerned. ...."
593. In the same opinion Professor Max Sgrensen evaluates a
proposal to construct a lower bridge across the Eastern Channel,
which will thus obstmct the passage of major ships, and a tunnel
under the Western Channel, which will at the same time be
navigable by even the biggest vessels as the sea lane will be
'"Letterof 12 Feb. 1957fromtheMinistryof ForeignAffairsto theMinistryof
PublicWorksincorporatingthelegal opinionhy ProfessorMax Sorensenof 4 Feb.
1957, see para. dredged to attain a depth of 15metres on stretches where its natural
depth is lower. He concludes:
"...that nothing can be said with certainty about the
compatibility of the above-mentioned project with
Denmark's obligations under international law, but that the
question is associated with not inconsiderable doubts. With
due regard to the importance of the interests at stake, 1feel
that1 am not in a position to advise the implementation of a
project which raises such doubts, irrespective of the
technical and economic advantages offered by the project.
....
594. On 22 October 1962 Professor Max S0rensen delivered
the following opinion on inter alia the impact of the Convention of
29 April 1958 on the Continental Shelf on the construction of a
bridge across the Great Belt. The opinion is published in the Report
of the Working Committee (1968) and reproduced in Annex 73.
The conclusion reached is clear:
"....As far as the temtorial sea is concemed, the
construction of a bridge across a passage-way of water
cannot be deemed to be contrary to the coastal State's
obligations under intemational law on the ground of the
Convention on the Continental Shelf or on other grounds,
provided that the breadth and height of the spans are such
that the passage of any foreign ship is not hampered."
595. Finally, Professor Max Sorensen wrote an opinion to the
Ministry of Foreign Affairs in March 1971 about the Project for a
Fixed Link across the Great Belt which was adopted as law two
years later by Act No. 414 of 13 June 1973 Le., a low-level bridge
across the Western Channel and a high-level bridge across the
Eastern Channel corresponding to the actual project under
consimction. The opinion is reproduced in Annex 8. The conclusion
reached is as follows: "... The information accumulated so far thus points
unambiguously to the conclusion that the Western Channel
is not used for passage of international ships through the
Great Belt. Bearing in mind the importance of the question,
however, 1 would find it desirable to undertake an attempt
to support the available information still further, notably
with regard to the passage of foreign warships. Provided
continued investigations fail to produce any factors which
distort the information already available, 1consider myself
in a position to conclude that the Western Channel must be
regarded as a secondary sea lane which is not normally used
for international navigation and that Denmark's obligations
under international law will therefore not be disregarded if
passage through this lane is precluded by a low-level bridge.
...
596. Of particular interest is the reference made in this legal
opinion to the considerations given to a fixed link between
Denmark and Sweden in which context floating objects such as
drilling platforms were commented upon in the following way:
"...As far as various possible bridge constructions were
concerned, it was stipulated that the clearance and the
positioning of thebndge piers were not allowed to preclude
or impede the passage of even the biggest vessels of our
time which are capable of passing through the Sound -
irrespective of whether the vesse1 in question sailed in
ballast or with cargo. On the other hand, only ships could be
taken into account, not other floating constructions, such as
dnlling platforms, which might pass through the Sound by
way of towing. ..."
597. In 1973 Professor Max S0rensen left the Ministry of
Foreign Affairs having been appointed judge to the Court of the
European Communities in Luxembourg. While sewing as a judge in
Luxembourg, Professor Max Sgrensen wrote an article entitled
Brückenbau und Durchfahrtenin Meerengen published inFestschrifrfür Eberhard Menzel, Duncker und Humbolt, Berlin
1975, pp 551-563. The conclusions embodied in the above quoted
legal opinions were included in that article which, however,
contains some further thoughts as to future developments, including
the aspect of drilling platfoms. The pertinent sections of the article
read as follows:
"....On the other hand, there is also general agreement that
it is not possible, and therefore not necessary, to take into
account unknown developments of the future. Once the
bridge is there, future ship constmctions will have to be
adapted to it. A certain principle of pnorities can be adopted
for this purpose'"'.
Modem technology has posed a delicate problem in the past
few years. Drilling platfonns for the extraction of oil and
gas from the continental shelf are towed with their
extremely high constmctions, but floating, from one field to
the other. In the event of plans to tow such a gigantic struc-
ture through the straits, is it possible then to assert a right of
passage, unobstmcted by bridges?
The considerations and preparatory work seem to indicate a
reply in the negative. It is true that an explicit interpretation
is non-existent, but al1 legal analyses take into account
ordinary navigation only. Customary intemational law could
hardly be deemed to deal with this new problem. At any
rate, there is no mle of international law which imposes an
obligation to draw parallels between such constmctions and
ships. It might be a different situation if a conventional ship,
'This statement isconstmedby Finlandas representinga transformatfrom
a factualnecessity into a legal principleof pnority contrathe statementby
the Coun in ils Order of 29 July 1991 (para.419 of the Memorial). This
constmction is without foundation. The statementf Professor Max S0rensen
presupposesof coursethatthe buildingof the bridgeat the time of ils constmction
does notviolateinternational Le.,respectstheexistingnavigationof shipsinthe
strait. capable of moving under her own power, is provided with a
derrick. Even under these circumstances, however, it
remains doubtful whether it is a case of such navigational
interests as are embraced by the right of innocent passage
under customary international law. ...."
598. As it appears from this analysis of the legal
considerations given since 1936 to the construction of a fixed link
across the Great Belt, the Govemment of Denmark considered itself
to be on solid ground when passing the 1973 Act providing inter
alia for a high-level bridge across the Eastern Channel of the Great
Belt. The essential factors seen from the point of view of
international law were that the bridge would cross an area lying
within Denmark's territorial sea, rhat the horizontal and vertical
clearances of the bridge would allow for continued navigation of
the Belt as in the past,thar floating objects under tow do not have
to be taken into account in constructing the bridge.
599. It is to be noted that in planning a high-level bridge,
mention has never been made, neither in the Governmental Reports
(1960 and 1968) nor in the Acts passed (1973 and 1987) of any
possibility of inserting an opening in the bridge. The Reports and
the Acts have been published and thus made accessible to any
Govemment concemed. Al1 drawings of plans for a high-level
bridge across the Eastern Channel show a bridge without an
opening part (Figure 1). Thus, there is no basis for assuming that a
bridge-opening was conternplated. If that had been the case, the
limitation in height would have ceased to have any importance.
Indeed, the whole purpose of a high-level bridge is to avoid the
need for an opening.
600. It is further to be noted that floating objects such as
jack-ups and semi-submersibles have, when occasionally passing the
Danish Straits, always been under tow or transported on heavy-lift
ships and are expected to continue to be so. Such structures cannot,therefore, claim to be navigating the Danish straits as ships
enjoying the right of innocent passage.
601. As shown in this Chapter it has continuously been the
opinion of successive Danish Govemments that the Fixed Link
across the Great Belt as planned and currently under constmction
respects the interests of the intemational community, which
furthemore has been kept fully infomed about Denmark's plans.
602. The extensive Danish deliberations given to the Great
Belt Project seen from the point of view of international law have
for obvious reasons centred around the right of passage of existing
ships. Finland claims that this right extends interaliato oil rigs,
special ships, and reasonably foreseeable ships. In the view of the
Government of Denmark this claim is not warranted as will be
explained in the following Chapter. CHAPTER III.
SHIPSIN INTERNATIONAL LAW
A. MODUsComparedto Ships
603. Offshore dnlling is an industrial activity which has
developed relatively recently as an extension of exploration for and
exploitation of hydrocarbons on land. The machinery used for
offshore drilling is basically the same as that used on land except
that it is installed on platforms, and in a few cases on ships, as
described in Part 1, ChapterV, B.
604. The origin of the present dispute between Finland and
Denmark stems from a differing interpretation of the term "ship" in
the relevant mles of international law goveming the right of passage
through the Danish Straits. Finland maintains that al1 mobile
offshore dnlling units (MODUs) have the nght of unimpeded
passage while Denmark has consistently taken the position that this
right is limited to ships in the traditional understanding of this term.
605. As pointed out in the Memorial (para. 444) there is no
generally accepted definition of the term "ship" for either
international law or municipal law purposes. In the words of one of
the authonties on international law "....(t)he term "ship" is used
with different meanings in different contexts depending on the
purpose and may be inclusive or exclusive of objects from one
context to another...".82
606. In the conventional understanding the term, "ship" is
charactenzed by certain features, among them a hollow structure, a
capacity to navigate independently, and an appearance that
corresponds to the usual idea of what a ship should look like. Other
features of importance are that its purpose should be to transport
" D.P.O'ConnellThe Internarional Law of thVol. 11,1984, pp.747-748.
208 persons or goods and that it should move with frequency. MODUs
do not correspond to these criteria with thepossible exception of
drill ships although their purpose is not the same as that of
conventional ships. This understanding indeed appears to be shared
by Finland in so far as the Finnish submission makes a distinction
between an existing right of passage through the Great Belt
applicable "to al1 ships" and the same right to be extended to
MODUs, other special ships and reasonably foreseeable ships (para.
560 (a) and (b) of the Memorial).
607. The understanding of the concept "ship" is treated by a
leading Scandinavian expert on maritime law, Professor Sjur
Brækhus in an article in the Norwegian periodical MARIUSNo. 3,
Oslo, September 1975, (Annex 74). In this article Professor
Brækhus debates inter alia the question of whether drilling
platforms can be considered ships. He points out that movable
platforms without their own machinery for propulsion Cjack-ups)
cannot be regarded as ships. The case of movable platforms with
their own machinery for propulsion (semi-submersibles) may raise
some doubt, but Professor Brækhus reaches the conclusion that
semi-submersibles cannot be considered ships. He points to the fact
that their movements are of very minor importance compared to the
time they spend at their main function which is canied out while
firmly anchored. Moreover, many of the mles which apply to ships
are not applicable to semi-submersibles.
608. In contrast to platfoms Professor Brækhus concludes
this part of his article by pointing out that drill ships should be
considered ships in a legal context.
609. The uncenainty as to the legal treatment of MODUs is
the background for the work which has been initiated by the Comité
Maritime International (CMI), a non-governmental organization
whose object is to contribute to the unification of maritime and
commercial law. As appears from Annex 34 to the Memorial, CM1
adopted a Draft Convention on Offshore Mobile Craft at its
conference in Rio de Janeiro in 1977. The object of this DraftConvention is to ensure that a number of international conventions
enumerated in Articles 2 - 7 which apply to ships should also be
applicable to offshore craft "to which they would not otherwise
apply".
610. Article 8, second paragraph, in the Draft Convention
expressly reserves the right of a State when enacting legislation to
exclude craft which are not vessels from the application of such
new legislation. As appears from Appendix 1 to Annex 34, page
168,of the Memorial, many States find it unacceptable to undertake
restrictions in their future legislation by compelling them to treat
ships and offshore craft identically. A proposal to this effect was
rejected by the CMI.
611. The basic difference between drilling platforms and
ships has also given rise to Article 9 of the Draft Convention,
which deals with limits of liability for platforms. The problem is
that, because of their shape, platforms are difficult to measure for
tonnage under the mles used for ships, which basically measure the
cubic feet of closed compartments. Applied to platforms this
method results in too low a tonnage compared to the value of
drilling units. In consequence, a fixed tonnage on platforms for
limitation purposes has been proposed in Article 9, it being
understood that such tonnage shall be substantially higher than that
which would result from the ordinary measurement.
612. The differing view on how to treat MODUS is summed
up by the sub-committee chairman of the CMI, Mr.Frode Ringdal,
in his introductory report to the Legal Committee of IMCO (IMO)
(Annex 36, appendix 1to the Memonal, page 167). in the following
words:
"ln many countries some or al1of these craft are held to be
ships and are treated legally as such. But as they frequently
lack the ship shape and other ship characteristics - some
times being self-propelled, at other times not- many States hold them not to be ships. In such case there are normally
no mles governing their maritime activity."
613. The necessity to distinguish between ships on one hand
and offshore units on the other is confirmed by the practice of the
Committee of Lloyd's Register of Shipping. Lloyd's Register
maintains separate registers for ships and for offshore units (Annex
75).
614. This distinction has also been accepted by the
International Maritime Organization (IMO) in its resolution
A.550(13) of 17 November 1983 concerning Apportionment of
Expenses Among Member States (Annex 76). According to this
resolution expenses are divided arnong rnernbers and associate
members on a dual basis: each member shall contribute a basic
assessment in accordance with the percentage of its normal
contribution to the United Nations; an additional assessrnent is
detemined by its gross register tonnage as shown in the latest
edition of Lloyd's Register of Shipping. As stated above this
Register does not include offshore units.
615. Considerable effort is made in the Memorial (paras. 445
- 477) to show that the definition of "ship" in a number of
international conventionsincludes MODUS.The lack of a generally
applicable definition has led to the practice that many conventions
dealing with maritime matters define the scope of the kind of craft
which are covered by the convention in question. These definitions
Varyfrom case to case, sometimes including certain kind of craft or
installations, at other times excluding them or not specifying them.
Moreover, such conventions invariably state that their provisions
should be understood "for the purposes of this Convention" or "for
the purposes of these Rules" thus limiting the extent of the
definition to its application within the range of each convention.
Consequently no conclusions or analogies can or should be drawn
from these definitions as to the scope of the term "ship" used in
other conventions. 616. To take but a few exarnples of the conventions cited in
the Mernorial, reference is made to paragraph 445 concerning The
Convention for the Unification of Certain Rules relating to Bills of
Lading for the Carriage of Goods by Sea, 1924, which stipulates:
"ship" rneans any vessel used for the carriage of goods by
sea".
617. Obviously MODUs would not be covered by this
definition as they are not intended for the camage of goods by sea
but for drilling for hydrocarbons in the seabed.
618. In paragraph 459 of the Mernorial the definition of
"ship" in the 1986 UN Convention on the Conditions for
Registration of Ships is quoted. Article 2 states that:
"ship" means any self-propelled seagoing vessel used in
international seaborne trade for the transport of goods,
passengers or both with the exception of vessels ofless than
500 gross registered tons".
619. This definition, which contains sorne of the essential
elernents of the normal description of "ship", does not include
MODUs which are not used for the transport of goods or
passengers.
620. In paragraph 460 of the Mernorial it is mentioned that
"perhaps the treaty definition most relevant to the present case is
that given in the Regulations attached to the 1972convention on the
International Regulations for Preventing Collisions at Sea". Rule 3
of these Regulations state that:
"For the purposes of these Rules except where the context
otherwise requires (a) the word "vessel" includes every
description of water craft, including non-displacement craft
and seaplanes, used or capable of being used as a rneans of
transportation on water". 621. As mentioned in paragraph 615 above this definition is
typical for specialized conventions in limiting its definition to "the
purposes of these niles" and no general conclusions can be drawn
from it. The ad hoc character of the definition is further highlighted
by the fact that the definition includes seaplanes which surelydo
not fall within the normal understanding of the term "vessel" or
"ship".
622. Several conventions concerning oil pollution include in
their definition of the term "ship" fixed platforms which cannot
under any circumstances be regarded as ships. This kind of
expedient definition is foundinte aliain the 1972Oslo Convention
for the Prevention of Marine Pollution by Dumping from Ships and
Aircraft, Article 19, and the 1973 International Convention for the
Prevention of Pollution from Ships, Article 2 (paras. 456 and 457 of
the Memorial). Both conventions expressly state that their
definitions should be understood as being for the purpose of the
particular Convention.
623. The same kind of ad hoc solution is found in the
"Agreement between the Government of the Kingdom of Denmark
and the Government of the German Democratic Republic
concerning Salvage Operations in the Interna1Waters and Territorial
Seas of the Kingdom of Denmark and the German Democratic
Republic" referred to in paragraph 464 of the Memorial. Article I
of the Agreement States:
"For the purposes of this Agreement: 1. "Ship" means a
vessel of any type which is used at sea, including hydrofoil
boats, air cushion vehicles, submarines, floating vessels and
fixed .and floating platforms".
624. Once again this defi;ition is only meant to be valid "for
the purposes of this Agreement" which is to ensure that salvage
operations can be carried out in relation to a wide range of craft
and installations including fixed platforms. 625. The question of the definition of ships in national
legislation is treated in the Memorial from paragraph 479 to
paragraph 503. In the same way as in the foregoing paragraphs
conceming treaty practice, an attempt is made to draw conclusions
from national legislation. This attempt is bound to fail because
national legislation, like treaty practice, varies from case to case and
is determined by the purpose to be obtained by the individual type
of legislation. A case in point, paragraph 486 of the Memorial,
states that some pieces of national legislation refer to a "vessel
capable to navigate" while others cover vessels "used in
navigation". The memorandum goes on to point out quite rightly
that this distinction is not maintained with any consistency in
municipal law. The same could be said for decisions by municipal
courts which may find it expedient to regard a wide range of craft,
including MODUs, as ships for the purpose of one piece of
legislation and not for another.
626. Paragraph 491 of the Memorial mentions that it is
occasionally required that a vessel must be engaged in transport of
goods and persons. It goes on to state that such legislation should
not be taken to indicate that there is a general criterion requiring
vessels to be used for transport of goods or persons in order to
qualify as ships. As a matter of fact this is exactly one of the main
criteria used to define a ship, see paragraphs618 - 619 above. To
be on the safe side, the Memorial states that MODUs would in any
event fulfil this criterion because they are designed to transport drill
rigs, accommodation units or other offshore equipment from place
to place.
627. This characterization of MODUs bears no relation to the
activity described by the words "transport of goods and persons".
This criterion describes the normal activity of a ship plying its trade
from harbour to harbour, not of platforms being conveyed to a site
in the sea where they will remain stationary for any length of time
for the purpose of drilling in the seabed. 628. In paragraph 492 of the Memorial the arbitrary natureof
national legislation is once-moreapparent. Some countnes consider
means of propulsion as a necessary critenon for the definition of
"ship" while the legislation of other countries does not.
629. The special characteristics of MODUs appear from
Annex 36 to the Memorial from which the following instances are
selected:
630. The Australian Maritime Safety Authority notes in a
reply of 15 October 1991 that advance notification for passage of
MODUs in Australian waters is required in certain circumstances,
and that conditions may be imposed on a tow or a tow may be
prohibited altogether for safety reasons.
631. From a reply of 18 October 1991 by the Ministry of
Defence of Argentina it appears that MODUs are no1 included in
the concept mentioned in the law of navigation and thus do not
possess the juridical nature of vessels, norcan the law applied to
vessels be applied in respect of them. A law granting MODUs a
treatment sui generiiss now being considered by the Congress.
632. Chile reports in a reply of 15 October 1991 from the
Director General of the Sea Territory and the Merchant Navy that
arrivals of MODUs in the Magellan Strait have to be notified at
least 24 hours before the anticipated time of arrival. The use of
pilotage is compulsory in the eastern sector of the strait.
633. In a reply of 30 October 1991 the Port of Singapore
Authority states that MODUs with restricted ability to manoeuvre
will have to comply with the International Collisions Regulation.
634. Malaysia reports height restrictions for MODUs in
Penang Harbour in a letter of 15 October 1991 from the Secretary
General of Transport. B. Drilling Platforms
635. As pointed out in the foregoing, the natural
understanding of the term "ship" excludes drilling platforms.
Neither their constmction nor their use is comparable to the normal
shape and purpose of ships.
636. It is the Danish contention that only ships and not
drilling platforms enjoy the right of unimpeded passage through the
Danish straits. This position was made clear already in the Danish
Circular Note of 12 May 1977 (Annex 12) whichannounced the
construction of a bridge across the Great Belt with an elevation of
62 metres. In this Note itwas stated that "(a)ccording to al1
available data the high-level bridgeacross the Eastern Channel will
not in any way restrict passage through the Great Beltby existing
ships which have navigated these waters in the past". The use of the
word "ships" in this Note was quite deliberate.
637. Finland, which did not react to this Note, had no
grounds to infer that there would be an opening in the bridge to
allow for the passage of drilling platforms witha height exceeding
62 metres. This would have been an unprecedented feature in a
high-level bridge, and plans of the bridge published at the time
clearly showed that it was not so. As already indicated, the whole
purpose of a high-level bridge is to avoid the need for an opening.
638. The Finnish platforms which had passed through the
Danish straits until 1977 had al1 been towed, and. none had
navigated independently under their own power, and in Denmark's
view, none of them qualified as "ships".
639. This continues to be the case for al1drilling platforms,
including semi-submersibles, because of their restricted ability to
manoeuvre. The normal procedure for tows passing through the
Danish straits is to use tugs with two pilots (Annex 32 to the
Mernorial). No Finnish built drill ships had passed through the
Danish straits at the time of the notification ofthe planned bridge. 640. The Note of 12 May 1977 did not imply that Denmark
objects to the passage of drilling platforms through its straits. But
Denmark cannot accept that there is an unlimited right of passage
for al1 craft irrespective of height that would prevent the
construction of a bridge across the Great Belt as long as the passage
of normal shipping is not interfered with.
641. Jack-ups and semi-submersibles which cannot
themselves claim unimpeded passage through the Danish straits do
not obtain this right by camage on heavy-lift transport ships.
Commercial ships normally have a right of passage with their
cargo, but common sense dictates that there are limits to the
dimension of the cargo as far as the relevant rules of unimpeded
passage are concerned. The right of innocent passage is directed
towards the navigating units Le., the ships, not their cargo. The
construction of a bridge would not be possible if one had to take
into account any oversized cargo which ships might conceivably be
able to carry. Platforms with towers or legs extending 150metres or
more exceed the limits of what may reasonably qualify as cargo
attached to ships.
642. Heavy-lift ships are only used for transportation over
very long distances, for instance across the Atlantic or Pacific
Oceans. Operational costs for heavy-lift ships are up to 10 times
higher than for ordinary towing which has normally been used for
transport of MODUSthrough the Great Belt. Only two examples of
the use of heavy-lift ships are known for the transport of jack-ups
through the Great Belt. In both cases the jack-ups could have been
towed by tug boats through the Sound before being placed on
heavy-lift ships. 643. All crane ships can pass the East Bridge with the
exception of one vesse1 which has never used the Danish straits,
(Report from Lloyd's Register of Shipping, Annex 35). As it
appears from this Report, three semi-submersible crane vessels are
too high to pass the East Bridge and have toodeep a draught to
pass through the Sound. However, they cannot be regarded as ships
and therefore cannot claim unimpeded passage.
C. Ships with SpecialCharacteristics
644. Drill ships must be considered as ships with special
characteristics due to their particular purpose and equipment witha
drilling tower.
645. In exercising the option granted in Article 1, Section I
of the 1857 Treaty, which refers to passage through the Sound or
the Belts, Denmark must be entitled to require that drill ships shall
exercise their right of passage through the Sound and not through
the Great Belt. The right of the coastal State to direct ships with
special characteristics to use such sea lanes and traffic separation
schemes as it may designate is recognized in Article 22 of the Law
of the Sea Convention of 1982. This Article is considered a
codification of customary law and used by coastal States to ensure
regulations dictated by common sense and navigational necessity.
646. All drill ships are able to pass through the Sound via
the Drogden Channel. Seventy-five per cent. of the drill ships can
pass fully loaded, while the remaining can pass partly loaded which
is quite normal for a drill ship in transit (Report from Lloyd's
Register of Shipping, Annex 35). The three drill ships which were
built by Rauma-Repola Offshore Oy in 1981/82 al1 had a transit
draught of 7.3 metres and may thus pass through the Sound.S~ensen had a close knowledge of the preparations for and the
proceedings in that Conference. It was his opinion that there is
nothing to indicate that the relevant provisionsin the Convention on
the Territorial Sea and Contiguous Zone of 1958intended to change
the nile of customary law which allows for passage of conventional
ships only.
652. The Swedish Government has taken the same position
as Denmark in relation to its right to construct a bridge in Swedish
territorial waters in the Sound. This was confinned recently in a
statement by the Swedish delegate, Mr. Lofmarck, at the meeting
held in the IMO on 10 June 1991 (Annex 29 to the Memonal, p.
128).The Swedish delegate stated on this occasion that the building
of a bridge in the Swedish part of the Sound of a height of some 50
metres would not allow for passage of platforms but that it was
considered that the bridge would not be an impediment to
navigation either today or in the future. As mentioned in paragraph
359 the fixed link across the Sound on the Danish side will consist
of an immersed tunnel under the Drogden Channel leaving the
existing conditions of navigation unaffected.
653. As demonstrated in Chapter IV.A.3,Par IIIof the 1982
Convention on the Law of the Sea concerning Straits Used for
International Navigation does not apply to the Danish straits in
virtue of Article 35 of the Convention. It is noticeable, however,
that in describing the right of transit passaParintII, Section 2,
the Convention uses the term "ships" unchanged from Article 16,
paragraph 4 of the 1958 Geneva Convention. Although offshore
constructions had come into general use at the time of the
negotiations in the Third United Nations Conference on the Law of
the Sea, no attempt was made to specify the kind of craft
encompassed by Par II, Section 2.
654. This is in contrast to Article 1 of the 1982 Convention
entitled "use of terms and scope" paragraph (5) (a) whichstates that
"dumping" means: "(i) any deliberate disposal of wastes or other matter from
vessels, aircraft, platforms or other man-made structures at
Sea;".
This paragraph shows that the Convention makes a clear distinction
between "vessels" (which are synonymous with "ships") and
platforms and other man-made structures. There is no foundation for
interpreting the term "ship" in PartIII,Section 2, on transit passage
as encompassing drilling platfonns. Article 1 of the Convention
points to the opposite conclusion.
E. Future Ships
655. The Finnish contention that the right of passage through
the Great Belt extends to reasonably foreseeable ships presupposes
that there is an unlimited and elastic right of passage through the
Danish straits. No mle of international law obliges Denmark to do
more than to provide for the unhampered passage of ships as in the
past. Once the bridge is in place, future ship constructions will take
account of the height of the bridge.
655. It should also be considered that in assessing whether a
given strait is an international strait or not, an important element of
time is involved. This means that the strait in question must be used
for international navigation at the time of the assessment. This
requirement can only be fulfilled by ships in existence when the
assessment is made. It follows that in planning for the Fixed Link
across the Great Belt, Denmark only has to take into account ships
that actually use or have used the Great Belt up to the time when
the Fixed Link was decided upon.
657. In point of fact al1 the ships which have used the
Danish straits up till now will be able to do so in the future. Based
on existing designs for future ships, even reasonably foreseeable
ships will be able to pass under the East Bridge. CHAPTER IV.
CURRENT LEGAL CONSIDERATIONS
A. Treaty Law and Customary International Law
658. In its Memonal, paragraph 376, Finland contends thar
its alleged right of passage is based on mles which are "both
conventional and customary in nature",hatnone of these mles is
such as to exclude, or to exclude wholly, the applicability of the
others, andthateach of them- even taken separatel- is sufficient
to uphold the Finnishlaim. The conventional mles are, according
to paragraph 378, the 1857 Copenhagen Treaty on the Redemption
of the Sound Dues, the 1958 Geneva Convention on the Territorial
Sea and the Contiguous Zone and to some extent the 1982 United
Nations Convention on the Law of the Sea.
659. Denmark does not deny that the mles goveming the
right of passage through the Danish straits are "both conventional
and customary in nature".
660. Denmark submits, however, that no absolute, unlimited
and elastic right of passage through the Danish straits in general or
through the GreatBelt in particular as claimed by Finland cbe
deduced from any of the mles upon which the Finnish claim is
based or from any other mle of intemational law.
1.THE1857 TREATIES FOR THE REDEMPTIO NF THE SOUND
DUES
661. Basically, as reflected in Article 35 (c) of the 1982
Convention on the Law of the Sea, the Danish straits are govemed
by treaties of long standing. These are the multilateral Treaty for
the Redemption of the Sound Dues between Denmark and Austria,
Belgium, France, Great Brirain, Hanover, The Hansa Towns,
Mecklenburg-Schwerin,theNetherlands,Oldenburg,Prussia,Russia and SwedenlNonuay, signed at Copenhagen on 14 March 1857,and
the bilateral treaties for thee purpose between Denmark and the
United States, signed at Washington D.C., II April 1857,Surdinia,
signed at Berlin, 25 November 1857, Sicily, signed at Copenhagen,
2January 1858,Toscana, signed at Paris, 22 April 1858, Venezuela,
signed at Caracas, 18 July 1858, Portugal, signed at Lisbon, 12
November 1858, Turkey,signed at Constantinople, 15 March 1859,
Spain, signed at Madrid, 25 Febmary 1860,respectivelyR3.
General Analysis of the 1857 Treaties
662. The Treaty of 14 March 1857for the Redemption of the
Sound Dues Statesin the Preamble that its object and purpose is "to
facilitate and to increase the commercial and maritime relationsat
present existing between the contracting States or through them ...
by the complete and permanent removal of al1 dues levied on
foreign ships and their cargoes on their passage through the Sound
and the Belts, ...".
663. Article 1 of the Treaty contains the stipulations
conceming the abolition of the Sound and Belt dues. By Section 1,
the King of Denmark undertakes not to levy any customs or
tonnage dues, light or lighthouse dues, moorage dues or any other
ship or cargo dues whatsoever on ships passing through the Belts or
the Sound on their way from the North Sea to the Baltic or vice
versa, whether they only sail through Danish waters or whether the
conditions of the sea or commercial operations render it necessary
for them to drop anchor or enter port. Section 1 goes on to stipulate
that no ship in the future shall under any pretext whatsoever be
subjected to any detention or hindrance in its passage of the Sound
or the Belts, and in the same sentence it is provided that the King
of Denmark expressly reserves himself the right by special
agreements, not implying visit or detention, to regulate customs
treatment of ships of States which are not Parties to the Treaty. By
Danske Trakrareefre1800.Section 2, the King of Denmark furthermore undertakes not to try
to reintroduce indirectly the abolished dues by means of new or
increased port taxes or the like.
664. By Article 2 of the Copenhagen Treaty, the King of
Denmark undertakes a number of other responsibilities distinct from
the abolition of the Sound and Belt dues. Sections 1 and 2 deal
with the conservation and maintenance as hitherto of the lighting
and marking without charge of the waters of the Kattegat, the
Sound and the Belts. Section 3 stipulates the duty in the future to
watch over as hitherto the pilotage service, the utilization of which
in the Kattegat, the Sound and the Belts shall be voluntary and
carried out in retum for a moderate charge, to be the same for
Danish and foreign ships. Section 4 deals with the nght of foreign
contractors to station tugs in the Sound and the Belts. Sect5and
6 deal with transit dues on transport by roads or canals between the
North Sea and the Baltic. Finally, Section 7 deals with special
arrangements conceming maintenance of lighting in the Sound and
the Kattegat tobe entered into with Sweden/Nonvay.
665. Article 3 requires that Articles 1 and 2 shall enter into
force on 1 April 1857.
-666. Articles 4, 5 and 6 deal with the payment of
compensation to the Kingof Denmark for the sacrifices imposed by
the stipulations of the Treaty.
667. Articles 7 and 8 contain stipulations conceming the
execution of the Treaty in accordance with the constitutional niles
of the Contracting Parties and conceming ratification of the Treaty.
668. The separate bilateral treaties on the Redemption of the
Sound Dues follow the same scheme as the Copenhagen Treaty,
though to some extent phrased differently compared with that
Treaty. The bilateral treaties also provide for the abolition of the
Sound Dues in retum for a compensation to Denmark once and for
all, and furthermore stipulate a special rkgime in the Sound and the Belts similar to Article 2 of the Copenhagen Treaty. Nothing
suggests an interpretation of the bilateral treaties different from the
interpretation of the Copenhagen Treaty.
669. For a detailed description of the ongin and history of
the Sound Dues, levied by Denmark on foreign vessels passing
through the Sound and the Belts, reference is made to the treatise
by Dr. Erik B~ei, International Straits and to paragraphs 554 - 560
of this Counter-Memorial.
670. By the Copenhagen Treaty of 14 March 1857 and the
bilateral treaties for the same purpose, the special rights exercised
by Denmark were terminated, the result being that the legal position
of the Danish straits thereafter was regulated by the special régime
stipulated in Article2 of the Copenhagen Treaty, supplemented by
the customary niles of international law related to the Danish
straits.
671. This interpretation, which is supported by Danish as
well as foreign writers,follows naturally from the wording as well
as from the whole structure of the Copenhagen Treatya4.Article 1
of the Treaty deals exclusively with the abolition of the dues on
merchant ships and their cargoes, while Article 2 deals with other
responsibilities undertaken by Denmark, distinct from the abolition
of the dues. The sentence stipulating that "no ship shall henceforth,
under any pretext whatsoever, be subjected in its passage of the
Sound or the Belts to any detention or hindrance" originates from a
draft submitted by France, Great Bntain and Prussia to the
Conference on the Redemption of the Sound Dues on 3 Febmary
1857. It was not included in the original Danish proposa1 of 2
Febniary 1856. The object and purpose of including the said
stipulation, which was accepted by Denmark, was to obtain
"abandonment of status quo, not only in relation to ships from
States which, like the Contracting States, undertake to pay a
"See EtiBrüel, InternationalStraits, Vp.40 not3.compensation but also in relation to ships from States which do not
undertake any obligation whatsoever, and which might never
persuade themselves to do so." (Statement by the Danish
Commissioner during the meeting of the Conference on 16Febmary
1857, included in the Protocol of that meeting -Historisk Tidsskrifr
3.1, Copenhagen (1858 - 1859), pp. 526 - 527, Annex 77). The
sentence is placed in the middle of Article 1, between the
stipulation concerning the abolition of the dues and the stipulation
containing the reservation of the nght to regulate by special
agreements customs treatment of ships belonging to States which
are not Parties to the Treaty. Thus, there can be no doubt that this
particular sentence, relating in its origin only to fiscal matters,
cannot provide the basis for an interpretation designed to limit the
sovereign rights of Denmark over the Danish straits in any way that
does not follow from the general mles of intemational law
conceming innocent passage through the territorial sea as later
codified in the 1958 Convention on the Territorial Sea and the
Contiguous Zone, supplemented by the special régime contained in
the mles of Article 2 of the Copenhagen Treaty.
Scope of the Treaties
672. The geographical scope of the right of passage for
foreign ships established by the 1857Treaties is described as a right
of passage for ships passing "through the Sound or the Belts".
673. It should be noted that Chapter 1 in Part III of the
Memorial deals with the mles goveming the right of passage
"through the Great Belt". As elsewhere in the Memorial, Finland
attempts to focus exclusively on the Great Belt instead of on the
whole integrated system of the Danish straits.
674. The Danish straits, in respect of which there is a right
of passage, are not constituted by the Great Belt only.
Geographically, it is an integrated system of straits as the Memorial
recognizes at page 12, paragraphs 5 and 6. 675. The Copenhagen Treaty for the Redemption of the
Sound Dues provides in its Article 1; Section 1, that Denmark
undertakes not to levy any charge whatsoever on ships "passing
through the Belts or the Sound", adding the provision upon which
Finland fundamentally relies:
"No vesse1 shall henceforth, under any pretext whatsoever,
be subjected in its passage of the Sound or the Belts ta any
detention or hindrance".
676. These provisions confirm, from a legal point of view,
the geographical facts: the international Danish straitsin respect of
which there is a right of passage are not constituted only by the
Great Belt.
677. It follows that the obligation of allowing passage,
undertaken by Denmark is fulfilled equally whenever the passage
may be safely completed through the Sound. In other terms, there is
a right of passage through the Danish straits; there is not an
exclusive and specific right of passage through the Great Belt.
678. The use of the alternative "or" in the Copenhagen
Treaty, in relation to passage through the Belts or the Sound
signifies that the obligation may be fulfilled by using one or the
other seaways, and that there is a choice.
679. As stated in paragraph 645 the established customary
law in general, codified in Article 22 of the 1982 Convention on the
Law of the Sea, and that established for the Danish straits in
particular authorizes, in very special circumstances, the territorial
State to make that choice as to which of the seaways shall be used.
680. It results from the definition in the Preamble of the
object and purpose of the Copenhagen Treaty that its provisions
concern merchant ships. This follows directly from the vocabulary
used in the Preamble -"foreign ships and their cargoes" - and the
reference to "commercial relations". 681. Oil rigs and drilling platfoms were of course unknown
at the time when the Treaty was concluded. They cannot be
described as merchant ships or ships in the traditional sense of that
term as shown in Chapter III.Consequently, such structures fall
outside the scope of the Treaty.
682. As far as ships in the traditional understanding of this
term are concerned, the Parties to the Copenhagen Treaty as well as
the international community at large have acquiesced in a vertical
clearance of 65 metres as being sufficient for the exercise of their
nght of passage, thus denying the existence of an absolute,
unlimited, and expanding right of passage.
Fznlandas a Third Party Beneficiary to the Copenhagen Treaty
683. Denmark agrees that the nghts provided in the
Copenhagen Treaty were accorded to shipsof al1States, not only to
ships belonging to the Parties of the Treaty, but also to ships from
third States.
684. Finland is not a Party to the Copenhagen Treaty. It may,
however, invoke the Treaty as a third party beneficiary in
accordance with Article 36 of the Vienna Convention on the Law of
Treaties. This legal situation as a third party has been conceded by
Finland in its Memonal, paragraphs 380 -381.
685. As a third parîy beneficiary Finland cannot, however,
claim or exercise more extensive rights than those enjoyed and
claimed by the actual Parties to the Copenhagen Treaty.
686. The Parties to the Treaty have acquiesced in a vertical
clearance of 65 metres as being sufficient for the exercise of their
right of passage through the Danish territorial sea, thus denying the
existence of an absolute, unlimited and expanding or elastic nght of
passage and accepting Denmark's right to build a bridge with such
a clearance. Finland cannot invoke additional rights or a more
favourable treatment than that agreed by the actual Parties to the Copenhagen Treaty. There cannot be two different measures forthe
nght of passage; an elastic or expanding one for Finland, up to 180
metres high or beyond, and another for the Parties, 65 metres high.
687. The above consideration is based on the letter and the
spirit of Article 36 of the Vienna Convention on the Law of
Treaties, an article which deals with "treaties providing for rights
for third States".
688. According to paragraph 1 of this Article "a nght arises
for a third State from a provision of a treaty if the Parties to the
treaty intend the provision to accord that right" to the third State
(Italics added). This is the case here; the Parties of the Copenhagen
Treaty intended to confer a right of passage in favour, not just of
themselves, but of al1States. Now, whatis granted to the third State
is exactly the same right, "that right" obtained by the Parties, in this
case a right of passage with a vertical clearance of 65 metres.
689. The subordination of the right of the third State to the
actual conditions obtained by the Parties is confirmed by paragraph
2 of Article 36 of the Convention on the Law of Treaties, which
provides that "a State exercising a right in accordance with
paragraph 1 shall comply with the conditions for its exercise
provided for in the treaty, or established in conformity with the
treaty" (Italics added).
690. Once Denmark has established as the condition for
vertical clearance a height of 65 metres, and the existence of a
bridge with such clearance has been agreed, expressly or tacitly, by
the Parties to the Treaty,then such a regulation becomes binding on
Finland, as a condition "established in conformity with the Treaty",
and not as an unlawful restriction of its rights.
691. Finland has opposed this line of reasoning saying in the
~emorial, paragraph 415, that the Parties to the Copenhagen Treaty
cannot by tacit consent revoke a third party beneficiary's treaty
nghts under Article 37 (2) of the Convention. 692. The answer ta this observation is that the right of
passage derived from the Treaty was not revoked by the Parties
when they accepted a 65 metres clearance; they merely agreed that
their nght of passage could be satisfactorily exercised within that
limit.
693. It follows that the Parties did notdeprive Finland of the
rights it derives from the treaty stipulations in its favour resulting
from the Copenhagen Treaty. But Finland cannot claim or exercise
its rights in a more extensive way than is exercised by the actual
Parties. There cannot be two different measures for the right of
passage.
694. Finland must adjust its conduct and the exercise of its
rights ta the conditions agreed upon by the Parties, which have
denied the existence of an absolute, unlimited, and expanding or
elastic right of passage and acquiesced in the existence of a bridge
with a height of 65 metres.
The Copenhagen Treaty does not Create an "Objective Régime"
695. Finland further contends in paragraph 382 of the
Memorial that "the Copenhagen Treaty creates an objective régime,
in other words a set of mles which may be invoked by al1interested.
States,independently of their being parties ta the treaty.". In support
of this contention, reference is made ta a legal opinion from 1920
concerning the demilitarization of the Âland Islands by the
International Committee of Jurists established in 1920 by the
Council of the League of Nations.
696. The idea that in contemporary international law a so-
called "objective régime"or an "international settlement" such as
the demilitarization of theAland Islands may be imposed on non-
parties by means of a treaty between certain States only was
rejected by the International Law Commission during the
preparation of the Convention on the Law of Treaties. The Special
Rapporteur, Sir Humphrey Waldock, had proposed ta incorporate that concept, although with hesitation, but a large majority of the
members rejected the proposal.
697. The main objection was that the concept of "objective
régimes"was regarded as an approval of defacto legislation or of
government of the world by the Great Powers, for objective régimes
had in fact been used in the past to impose certain conditions on
small States at a time when the sovereign equality of States had not
been much respected. Also, from a jundical point of view, it was
considered incorrect to Saythat treaties could, of themselves, create
an objective régime, (Deliberations of the International Law
Commission, I.L.C.Yearbook 1964,Vol. 1,pp. 96 - 109,reproduced
in Annex 78).
698. The International Law Commission decided, in the light
of the discussion, and at the initiative of the Special Rapporteur, to
withdraw the proposed article and agreed that such matters as right
of passage over maritime waterways or nvers were to be covered
by the article concerning treaty stipulations in favour of third States.
(I.L.C.Yearbook1964, Vol.1, p. 105, para. 68).
699. This decision was confirmed by the Vienna Conference
on the Law of Treaties, which rejected an amendment introduced by
Professor Castrénof Finland. The main reason invoked for rejecting
the Finnish amendment and supporting the Commission's proposa1
was that Article 36 on treaties providing for nghts of third States,
was the legal basis for treaty provisions establishing freedom of
navigation and right of passage for al1 States through maritime
watenvays. (United Nations Conference on the Law of Treaties,
First Session, Oficial Records, 35th Meeting of the Committee of
the Whole, paras. 13 - 43, especially paras 20, 21, 38, 39, 43. -
Annex 79).2. THE1958 GENEVA CONVENTIO NN THE TERRITORIA SEA AND
THE CONTIGUOU ZSONE
700. The Geneva Convention of 1958 on the Territorial Sea
and the Contiguous Zone is the second applicable treaty, having
been ratified by bath Parties in 1965 (Finland) and in 1968
(Denmark).
701. The provisions in SectioIIIof the 1958 Convention on
the right of innocent passage apply, like the provisions of the 1857
Copenhagen Treaty, ta ships of al1 States. There is no foundation
for interpreting the term "ship" in Section III as applying to other
structures than ships in the traditional sense of the term.
702. Furthemore, the Convention defines "passage" as
"navigation..."(Article 14, paragraph 2) and "ordinary navigation
..."(Article 14, paragraph 3). In Article 16, paragraph 4 on straits
the expression "international navigatio..."is used. The same
terminology is used in the 1982Convention, Articles 18,paragraphs
1 -2 and Article 34.
703. No generally accepted definition exists in international
law of theterm "navigation".
704. Common sense would suggest that what is envisaged is
normal trafic, regularly moving bath ways, as a means of
communication in the interest of international relations, first and
foremost trade relations, hetween various parts of the world;
whereas the occasional movement of floating abjects such as
MODUS cannot be covered by that concept. Movements of that
kind do not represent a case ofsuch navigational interests as are
embraced by the nght of innocent passage (Max Serensen in
BrückenbauundDurchfahrten in Meerengen, as referred to in para.
597 above). This is particularly true with regard to the Finnish
drilling platfoms which have al1passed through the Danish straits
under tow or on heavy-lift ships. 705. The 1958 Geneva Convention contains only one single
provision specifically dealing with the régime of straits, narnely
Article 16, paragraph 4, forbidding suspension of the nght of
innocent passage of foreign ships in straits used for international
navigation. This provision, a codification of customary law as
defined by the International Court of Justice in the Corfu Channel
case, is, however, not relevant to the present dispute.
706. With that exception, the 1958 Convention does not deal
directly with passage of ships through straits. This matter is
governed by the same mles which are applicable to innocent
passage of ships through the territorial sea. Thus, passage through
straits is a derivative and incidental corollary of innocent passage
through the territorial sea. It is significant, too, that the only
reference to international straits is to be found in a convention
dealing with the territorial sea and as part of the article regulating
innocent passage in the territorial sea, whereas no reference to
international straits exists in the 1958Convention on the High Seas.
707. Finland wants to avoid the 1958 Convention, arguing at
paragraph 395 of the Mernorial that "present day customary law on
passage through straits does not correspond any longer with the
prescriptions of the Geneva Convention", meaning that it was
applied in practice more liberally than the letter of the Convention
provides for.
708. However, the record of the discussions at the United
Nations Sea-Bed Committee, established in 1968 by General
Assembly Resolutions 2467 A, B, C, and D (XXIII) and at the
Third United Nations Conference on the Law of the Sea shows
exactly the opposite. The practice of States had been so restrictive,
consisting of a strict application by the coastal States of the
provisions of the 1958 Convention, that the maritime States
succeeded in correcting and improving in the 1982Convention what
they described as the ambiguities and inadequacies of the régimeof
passage through straits. To that effect, the consensus reached at the
Conference incorporated, in Part III of the 1982 Convention, anovel right of transit passage through Straitsbased on the principle
of freedom of navigation.
Differences between the 1958 Geneva Convention and the 1982
Convention on the Law of the Sea
709. Leaving aside the question of the passage of aircraft,
warships and submarines, other differences between the 1958 text
and the 1982 Convention reveal the deficiencies and practices that
UNCLOS IIIwanted to correct and improve in the application of
the 1958 régime.
710. One of these corrections relates to the scope of the
regulatory competence enjoyed by the coastal State. According to
the Geneva Convention the bordering State has under Article 14,
paragraph 5 and Article 17a broad prescnptive power to issue laws
and regulations defining what constitutes innocent passage, without
the need to refer only to certain subject matters. Thus, the
regulatory competence of the coastal State includes,under the 1958
Convention, the power of fixing reasonable clearance limits.
711. A comparison of the scope of this regulatory
competence shows that in 1982, for the transit passage, the
prescriptive power of the coastal State has been drastically reduced.
712. For instance, Article 42, paragraph 1 of the 1982
Convention enumerates exhaustively the subject-matters which may
be regulated by the littoral State; safety of navigation, fisheries,
control of pollution, control of customs and immigration. And also,
in respect of certain subjects, the coastal State is obliged to give
effect to applicable international regulations, and in some cases
these regulations have to be agreed by the competent international
organization.
713. The regulations as to innocent passage that have been
issued by Denmark in the exercise of its regulatory power are
undoubtedly restrictive but fully reasonable (paras. 568 - 578 above). They take into account the introduction, in respect of
innocent passage, of the new notion of "special characteristics of
particular ships" as a ground justifying a non-discriminatory but
different treatment for certain categories of ships. This notion,
introduced in Article 22 in Part II of the 1982 Convention, is
designed to take due account of scientific and technological
developments which have occurred in recent years. These changes
required the adoption of appropriate niles to regulate navigation of
certain ships with special characteristics.
714. Among these are mentioned in Article 22 in Part II of
the 1982 Convention tankers, nuclear powered ships and ships
canying nuclear or other inherently dangerous or noxious
substance^^^.
715. The reference to ships of special characteristics
envisages the applicability of differential treatment to certain cat-
egories of ships. Drill ships and heavy-lift ships with their
extraordinary cargo Cjack-ups) would naturally fa11 within this
category of ships. Obviously, the Finnish oil rigs and similar
artifacts, even if they were considered ships, would fa11within the
non-exhaustive category of ships with special characteristics,
requiring special treatment for their passage. In this connection it
should be recalled that drilling platforms have never been
navigating the Danish Straits.They are towed through or transported
on heavy-lift ships.
716. Exceptional stmctures and platforms cannot have al1
obstacles up to 180 metres high magically disappear at their
passage. If their builders want them to pass through the Great Belt,
''Tankerswerenot expresslymentionedin theoriginaldraftconsideredhy the
Sea-Bed Committeein 1973 (Document A/AC.138/5cII/L.18).H.E. Judge Oda
pointedout, however,in his comprehensive accotf the work of the Sea-Bed
Committee,thattankerswouldalso fall withinthe categoryof "ships withspecial
characteristics"e Law of the Sea in Our Time, II, The United Nations Seabed
Cornmittee,1968-1973,Sijthoff,Leiden19p.247).they should erect their additional gear, towers, columns, jack-up
legs, etc. after having passed under the bridge.
717. Another important difference between the 1958
Convention and the 1982 Convention is that in the Geneva
Convention the coastal State has direct enforcement powers over
foreign ships and as Article 16, paragraph 1 says, it "may take the
necessary steps in its territorial sea to prevent passage that is not
innocent".
718. This provision was described at the Conference by the
representative of the United States, J.N. Moore as "(m)ost indicative
of an intent to give coastal States certain rights to take unilateral
action to prevent non-innocent passage" (J.N. Moore, TheRégimeof
Straits andUNCLOS, American Journal of International Law,1980,
p. 102).
719. This direct enforcement power over a foreign ship has
disappeared in the 1982 régime of transit passage, where, as
descnbed by Professor Caminos "....ships in transit cannot be
seized, refused passage, subjected to inspection or any other typeof
control that would impair transit passage. The only exception ...
occurs when a violation ..causes or threatens major damage to the
manne environment of the Strait. Then, and only then, may the
State bordering the strait take "appropriate enforcement measures"
(under Article 233) ...".(H. Caminos, The Legal Régime of Straits
in the 1982 United Nations Convention on the Law of the Sea,
Académie de Droit International, Recueil des Cours 1987 V, p.
169).
720. Still another difference between the 1958 and the 1982
régimeis that the 1982 Convention in Part III recognized the right
of transit passage "to al1ships and aircraft", see Article 38.
721. It has been said that this granting clause in the 1982
Convention, "...perhaps the most important phrase from the
standpoint of the user State ... makes no distinction betweencategories of ships and aircraft, their nationality or ownership, their
status as warship or merchant ship, or civil or State aircraft. The
right of transit passage [in PartIII],therefore, applies literally to al1
types of ships and aircraft, regardless of their individual character-
istics ..."(Caminos op. cir.p. 144).
722. All this cannot be said of the 1958 Convention. This
fundamental difference is reflected in the terminology employed;
innocent passage for "ships of al1States" is the phrase used in the
1958 Convention, Article 14,paragraph 1. In the 1982Convention,
the transit passage is for "al1ships and aircraft".
723. This striking difference as to the placement of the word
"all" in the definition of the right of passage between the two
Conventions, has a significance of its own, in the carefully
considered terminology of both Conventions. It signifies that, for
the application of Article 38 of the 1982 Convention, among the
various interpretations given to the word "ships" in different
treaties, a wide interpretation of that term isto be applied, since the
text refers to "al1ships".
724. On the contrary, Article 14 of the 1958 Convention
refers merely to "ships of al1 States". Consequently, a restrictive
interpretation of that term "ship" is called for, taking into account
not only the different terminology utilized, but also the pnnciple
that restrictions to the sovereignty of the State over its own
temtory, submerged or not, cannot be presumed and must be
strictly interpreted.
725. The corollary to extract from the comparative study of
the 1958 and the 1982 Conventions is that the discussions and
conclusions at UNCLOS III revealed certain deficiencies of the
1958 Convention, demonstrating that from the point of view of the
freedom of the high seas it was an instmment from which only an
imperfect and not an absolute right could at best be inferred. States,
in particular the maritime powers, were legitimately concemed with
the possibility that coastal States could deny "innocent passage"through straits used for international navigation based on matters
such as flag, cargo or destination of the vessels.
3.THE INVOCATION OF PARTIII OF THE 1982 UNITED NATIONS
CONVENTION ON THE LAW OF THE SEA
726. Finland, instead of taking into account the restrictions as
to the right of passage resulting from the applicable 1958
Convention, invokes the broader provisions of Part III of the 1982
Convention, as reflecting "the present trend in custornary law"
which "can serve as an interpretation of the Geneva Convention"
(para. 409 of the Memonal). In that way Finland picks and chooses
which it considers the most favourable provisions of the 1857, 1958
and 1982 Conventions in order to build its absolute, unlirnited, and
expanding right, ignoring the limitations resulting frorn the
applicable treaties.
727. In paragraphs 394 and 395 of the Mernorial, Finland
invokes Part III of the 1982 Convention on transit passage, as a
trend in international practice towards the establishment of a
customary mle on passage making such passage independent of the
notion of "innocent passage".
728. It is tnie that the new régime of transit in Part III is
rnuch more liberal than the one govemed by the provisions
applicable to the Danish straits.
729. But Part III is not applicable to the Danish straits nor to
the Finnish Aland Straits. Thus, Article 35 (c) of the 1982
Convention provides, under the title "Scope of this Part" that
"Nothing in this Part affects:
(c) the legal régime in straits in which passage is
regulated in whole or in part by long-standing international conventions in force specifically
relating to such straits.".
730. Professor Caminos, who was an attentive witness at
UNCLOS III,as Deputy Director of its Secretanat, has written, in
an interpretation of this provision, that:
"Examples of conventional régimes thought to
qualify under Article 35 (c) when the 1982
Convention was adopted were the Turkish Straits,
(Dardanelles and Bosphorus), the Danish Straits, the
Strait of Magellan and the Aiand Straits". (Caminos
op.cit., pp. 130- 131)~~.
731. Finland played, together with Denmark, a protagonist
role in originating Article 35 (c), whichexcludes the right of transit
passage from both Finnish and Danish strait régimes.
732. On 22 July 1974,Denmark and Finland CO-sponsoredan
amendment to a United Kingdom proposal which was the basic text
of what later becarne Part IIIof the Convention.
733. The joint Danish-Finnish ameridment, reads as follows:
"3. This article applies to any strait or other stretch of water
which is more than six miles wide between the baselines,
whatever its geographical name ....
" Similar views are expressedby J.N. Moore, inAmerican Journal of
International La1980,p. 114;byDupuy-Vignes,intheirTraitéduNouveauDroit
de la Mer, Treves, pp. 790-791; hy S.N. Nandan and D.H. Anderson in A
Commentaryon Part 11of the United Nations Conventionon the Law of the Sea,
puhlished inBritish Year Book of International Law1989, p. 176: by I.A.
Yturriaga,iStraits usedfor International NavigaNijhoff, 1991,p. 292. 5. The provisions of Chapter II, Part III apply to straits used
for international navigation not wider than six miles between
the baselines".
...(UNCLOS 111, Official Records, Volume III, p. 191.
DOCUMENT A.Conf. 62/C.2/L.15).
734. The joint amendment had the effect of excluding from
the novel concept of transit passage the Danish and the Finnish
straits and in that respect it was the original source of Article 35
(c).
735. In submitting the joint amendment, the representative of
Denmark pointed out, that his delegation failed to see the need to
change the mles of innocent passage through straits less than 6
miles wide, where the right of free passage and overflight had never
existed. The problem could be solved, in the opinion of the Danish
delegate "by maintaining the existing mles of innocent passage
through international straits of less than 6 miles and establishing a
new régimeof "transit passage" through new wide straits, which
would emerge as a result of establishing a maximum of 12 miles
for the temtorial seau. (UNCLOSIII, OfficialRecords, Volume II,
Second Committee, 11th meeting, p. 124, Annex 80).
736. A similar view was expressed by the representative of
Finland, who noted "that none of the texts submitted so far made an
express exception for circumstances where the breadth of the
territorial sea in a strait connecting two parts of the high seas would
remain unchanged, in spite of the new provisions, and where the
prerequisites for transit passage would thus also remain unchanged.
Such was the case especially with regard to straits within or leading
to enclosed sea areas, and king either completely within the
tenitory of a coastal State, or passing through the territorial seas of
States which already bordered on each other. If no special mles had
been agreed upon, the provisions concerning innocent passage were
applicable and could be applied also in the future. The situation had
not changed and, therefore, there was no reason to require the opening of such a strait to free passage ...Neither fishing nor other
peaceful uses of the high seas required the proposed change in the
status quo of straits traditionally used for international navigation
based on the mles of innocent passage ...."(UNCLOS III,OfSicial
Records, Volume II, Second Committee, l lth meeting, pp. 124 -
125, Annex 81).
737. The joint amendment also demonstrates that in 1974,
one year after the adoption of the 1973 Act on the Constmction of
a Bridge across the Great Beli providing for a high-level bridge
spanning the Eastern Channel. Finland was perfectly satisfied with
the status quo and the existing régime appliedin the Danish straits
and did not feel the necessity of extending to them the more liberal
régimeof transit passage.
738. In the light of the history of Article 35 (c), to invoke
now Part III of the 1982 Convention, as Finland has done, is an
admission that the two applicable instmments, the 1857 Treaty and
the 1958 Geneva Convention, are not sufficient to support the
absolute nght of passage claimed by Finland. The explanation of
Finland's making this argument is that Finland realizes that only the
broader and more liberal transit passage régimeof Part III would
give legal support to the absolute, unlimited, and elastic right it is
claiming before the Court. And even in taking that view, Finland
may well be mistaken.
739. Nevertheless, Finland, in the Memorial paragraph 398
observes th& Article 35 (c) is not in force yet. But Part III is not in
force either, and they are interrelated provisions; if Part III has
repercussions for this case, the express exclusion in Article 35 (c)
must also have repercussions on the applicable law.
740. Around the conventional right of passage for merchant
ships estahlished by the 1857Treaty, the legal régimeof the Danish
straits has been completed by noms of customary law, codified inthe 1958 Convention, such as the concept of innocent passage, and
also by noms of an exclusive customary nature, such as those
concerning the passage of warships. Account must be taken also of
the practice, now well established, which allows coastal States to
prescribe sea lanes for ships of special characteristics and traffic
separation schemes in order to ensure the safety of the navigation.
This practice has been codified by Article 22 in PaII of the 1982
Convention on the Law of the Sea.
741. Yet, Finland contends that the provisions of the Treaty
of 1857have now become mles of customary law (para. 392 of the
Memorial) and on this ground it denies the applicability of Article
36 of the Vienna Convention on the Law of Treaties conceming
stipulations in favour of third States.
742. It is tme that, as indicated in the Memorial, paragraph
711, there have been customary law accretions to the legal régime
of the Danish straits, but these accretions have not displaced the
provisions of the 1857Treaty; the legal régime asa whole has been
built upon thecore of legal noms having a conventional and not a
customary origin. If any doubt remains, it is dissipated by Article
35 (c) of the 1982 Law of the Sea Convention, initiated by a joint
amendment submitted by Denmark and Finland. This Article
recognizes conclusively that the legal régimeof the Danish straits is
"regulated in whole or in part by longstanding international
conventions inforce specifically relating to such straits." It follows
that the Danish submission developed above (paras. 683 - 694)
concerning the applicability of Article 36 of the Vienna Convention
on the Law of Treaties continues to be valid.
4. HAS NEW CUSTOMARIY NTERNATIONA LLAWDEVELOPED?
743. Having established that no general or specific mle of
conventional international law prohibits Denmark in the exercise of
its sovereign nghts from constructing a fixed link across the Great
Belt which allows for innocent passage for ships of al1 nations
navigating those straits at a given time in the past, the question may nevertheless be raised, as indeed Finland has done in paragraphs
377 and 401 of the Memorial, whether a rule of customary
international law has come into being attributing a legal right of
MODUs to be towed through the Danish straits. In the view of the
Government of Denmark such a rule cannot be said to have
materialized.
744. In particular, it should be stressed that the régimeof
transit passage regulated in Part III of the 1982 Convention cannot
be applicable in the present case as emerging customary law,
substituting the régime of the1958 Convention.
745. Such a substitution can only take place in accordance
with Article 311, paragraph 1 of the 1982 Convention which
provides that "(t)his Convention shall prevail, us between Stutes
Parties, over the Geneva Conventions on the Law of the Sea of 29
April 1958" (Italics added). But neither Denmark nor Finland is a
Party to the 1982Convention.
746. Furthemore, the insertion of Article 35(c), supported
and proposed by Denmark and Finland, (paras. 731 - 739),
demonstrates the opinio juris of the Conference, in exempting the
Danish and the Finnish straits and other historic straits from the
legal régimein Part III of the 1982 Convention. This result rules
out completely the possibility of the emergence of Part III as
customary law, in respect of the excluded straits.
747. It is correct, as stated in the Memorial, inter alia in
paragraphs 427 and 508, that some MODUs have been passing
without permission or hindrance through the Danishstraits during
the past years.
748. The number of such cases has been very limited, so
limited that it cannot possibly fom the basis for claiming that a
legal nom is established through such limited practice obliging
Denmark to permit forever an unlimited right of passage for such
structures whatever their height or size. Moreover, the factualconditions are different. In the absence of a bridge there was no
reason for Denmark to object to the passage of the MODUs. But
this did not mean that Denmark conceded that they used the strait
as of right, and even less did it mean that, under quite different
factual conditions -Le., the existence of a bridge -Finland would
have the nght to demand that they still use the strait, as of right and
without any restriction.
749. Thus the material element of custom necessary to prove
the emergence of a right of passage for these structures through the
Danish straits based on practice is entirely insufficient.
750. It is by mere tolerance from the Danish side that such
structures have occasionally traversed the Great Belt through the
past years and not because Denmark had the opinio juris that there
was a duty to allow their unimpeded passage.There was at the time
simply no actual interest or immediate nsk of danger which would
make it necessary for Denmark not to allow the MODUs in
question to pass through the Danish straits. The fact that Denmark
in 1973 adopted a law providing for a bridge with a 62 metres
clearance also makes it abundantly clear that there was no opinio
juris to require Denmark to tolerate the passage through the Danish
straits of floating structures exceeding that height.
75 1. In the North Sea Continental Shelf cases, 1969, the
Court pronounced itself in paragraphs 71 - 78 on the difficulties of
demonstrating the existence of a customary rule based on State
practice, stating inter alia that "...this result is not lightly to be
regarded as having been attained." (I.C.J.Reports 1969, p. 41, para.
71). This dictum related to the rejection of an argument forwarded
by Denmark and the Netherlands to the effect that a rule of
customary law had come into being on the basis of a State practice
consisting of some 15 cases of delimitation of the continental shelf
on the basis of the equidistance principle. 752. In the same connection the Court made the following
observations conceming the difficulty of demonstrating the
existence of an opinio juris sive necessitaris:
"The essential point in this connection - and it seems
necessary to stress it - is that even if these instances of
action by non-parties to the Convention were much more
numerous than they in fact are, they would not, even in the
aggregate, suffice in themselves to constitute the opinio
juris;- for, in order to achieve this result, two conditions
must be fulfilled. Not only must the acts concerned amount
to a settled practice, but they must also be such, or be
carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule
of law requinng it. The need for such a belief, Le., the
existence of a subjective element, is implicit in the very
notion of the opinio juris sive necessiratis. The States
concerned must therefore feel that they are conforming to
what amounts to a legal obligation. The frequency, or even
habitua1character of the acts is not in itself enough. There
are many international acts, e.g., in the field of ceremonial
and protocol, which are perfomed almost invariably, but
which are motivated only by considerations of courtesy,
convenience or tradition, and not by any sense of legal duty.
(I.CJ. Reports 1969, p.44, para. 77).
753. As to the material evidence for the existence of a
customary right of passage for MODUs through the Great Belt,
there are not sufficient grounds for such a conclusion. It is based on
the passage of less than one Finnish MODU per year on average
since 1974 and only one MODU since 1985. Chile reports the
passage of one MODU per year on average through its straits
(Annex 36 to the Memonal, p. 182). Turkey reports that no
MODUs have transited the Turkish Straits dunng the past 20 years
(Annex 36 to the Memonal, p. 188). Several other countries for
which no statistics are available report height restrictions or
consider MODUs craft sui generis or with limited manoeuvrabilityor require advance notice for passage, see paragraphs 630 - 634
above. There is nothing in this material that would point to a
generally accepted custom.
754. On the contrary, bridges with clearances similar to that
of the East Bridge across the Great Belt have been built across
other international straits e.g., in Turkey. No objections having been
voiced by the rest of the international community. against the
construction of these bridges, theopiniojuris among States is likely
to be that contemporary international law on the subject supports
the conduct of Turkey and Denmark and thus accepts the right of
States in the exercise of their national sovereignty to build bridges
across their temtorial sea in international straits as long as existing
shipping traffic at the time of the constmction is not hampered.
755. This legal position is further confirmed by the fact that
during the Third United Nations Law of the Sea Conference an
attempt was made at the early stage of the Conference to have.
inserted into the future text the following provision: "The coastal
State shall not place in the straits any installations which could
interfere with or hinder the transit of ships". The proposal was
contained in Doc. A/CONF.62/C.2/L.ll of 17July 1974, Art. 1, 2
(f) sponsored by Bulgaria, Czechoslovakia, German Democratic
Republic, Poland, Ukrainian Soviet Socialist Republic and Unionof
Soviet Socialist Republics.
756. The Danish representative stated his opposition to this
proposal in an intervention in the 11th meeting of the Second
Committee of the Conference on 22 July 1974, see the Summary
Records of the meeting, Volume II,page 124, paragraph 12, which
reads as follows:
"With reference to document A/CONF.62/C.2/L.11, which
stated in article1, paragraph 2 (f)that the "coastal State
shall not place in the straits any installations which could
interfere with or hinder the transit of ships", he pointed out
that Denmark had geographically the character of an island country, the main island being separated from the other
main parts of the country, as well as from neighbounng
Sweden, by narrow international straits. It was of vital social
and economic importance for Denmark and its neighbouring
countries to be able to build bridges or tunnels across those
straits, and the Danish Parliament had already taken a
decision in pnnciple to that effect. Existing plans took full
account of the obligation not to hamper the free passage of
ships in transit. His delegation took it that the reference in
article 1, paragraph2 (f)to the placement of installations in
straits did not modify the nght of coastal States to build
traffic links of the nature referred to, on the understanding
that transit through the straits would be able to continue
unhampered."
757. The views expressed were in no way opposed by the
~innish delegation to the Conference or by any other delegation,
and the proposal failed to gain the support of the Conference.
758. This survey of conventional and customary international
law goveming the aspect of passage through the Danish straits,
including the Great Belt, shows that no general or specific nile of
international law exists which would prohibit Denmark from
constmcting the planned high-level bridge across the Eastern
Channel of the Great Belt in the exercise of its national sovereignty.
759. This result is supported by the following further
considerations of law concerning the pnnciples of good faith and
equity. B. Equitable Principles
760. Good faith is a basic concept of law closely related to
the conduct of the parties. The concept figures prominently in the
Vienna Convention on the Law of Treaties (1969) where it foms
part of the most fundamental principle of any legal order: Pacta
sunt servanda.In the words of Article 26 of the Convention: "Every
treaty in force is binding upon the parties to it and must be
perfomed by them in good faith". Likewise, a treaty shall be
interpreted in good faith, see Article 31(1) of the Convention.
761. The concept of good faith implies that a State must act
in a manner that takes into account the reasonableexpectations and
needs of other States in the international community. A State must
be able to rely upon the conduct of other States and to expect that
its own declarations are taken seriously and given legal effect
according to their contents.
762. In the Nuclear Tests cases the Court gave added
emphasis to the principle of good faith in interstate relations in
particular as far as unilateral declarations are concerned. The Court
stated the following:
"One of the basic pnnciples governing the creation and
performance of legal obligations, whatever their source, is
the principle of good faith. Tmst and confidence are
inherent in international CO-operation,in particular in an age
when this CO-operation in many fields is becoming
increasingly essential. Just as the very mle of pacta sunt
servanda in the law of treaties is based on good faith, so
also is the binding character of an international obligation
assumed by unilateral declaration. Thus interested States
may take cognizance of unilateral declarations and place
confidence in them, and are entitled to require that the obligation thus created be respected." (I.CJ. Reports 1974,
p. 268, para. 46 and p. 473, para. 49.)
763. The notifications from the Danish Ministry of Foreign
Affairs conceming the Great Belt Project sent to the Heads of ail
Diplomatic Missions accredited to Denmark in 1977, 1987 and
1989 - inparticular the CircularNote of 12 May 1977 -are indeed
unilateral declarations of which States must take cognizance and in
which they may place confidence. Likewise, the Govemment of
Denmark has been fully entitled to tmst that these notifications
would receive serious attention by the States concemed, and that
Denmark could safely rely on the reactions of other States to the
notifications when continuing to carry out the Great Belt Project.
764. The Govemment of Denmark wishes to underline how
succeeding Danish Govemments have been acting in good faith in
regard to Denmark's plans forthe construction of a permanent link
between the two main parts of the Realm divided by the Great Belt.
Finland cannot claim to have acted in the same spirit.
765. As stated in Chapter IIof Part II,great care was taken
by succeeding Danish Governments to investigate the problems
arising under international law in connection with the bridge project
and to assess the intemational legal obligations incumbent on
Denmark in this respect.
766. The conclusions reached were given maximum publicity
by publication of the Reports from the Commission on a Great Belt
Bridge (Report 23711960 and 50811968) and the enactment of
specific legislation in this respect in 1961, 1973, and 1987.
Furthemore specific notifications conceming the Great Belt Project
were sent to the Heads of al1 Diplomatic Missions accredited to
Denmark in 1977. 1987and 1989.
767. In the course of this process, which has been described
in detail above in Chapter II of Part 1,no objections to the Project
were made by foreign States until Finland in June 1990notified theDanish Govemment of its demand for a free passage through the
Great Belt for Finnish MODUS. In particular, it should be stressed
that for twelve years (1977 - 1989), Denmark had no sign from
Finland that it could not accept a high-level bridge with a vertical
clearance of 62 metres as notified in 1977.On the contrary, as late
as in the spring of 1989 the President of Finland, could tell the
Danish Ambassador that no bilateral problems existed between the
two countries (para. 514). This statement came at a time when the
execution of the entire Great Belt Project had been in progress for
almost 2 years. The Danish Govemment had therefore no reason to
believe that the Project would not be acceptable to the intemational
community at large, including the Baltic States which have a
particular interest in the passage through the Danish straits to the
North Sea. Consequently, the Govemment of Denmark proceeded in
good faith to carry out the Project, which is an integrated whole,
engaging in very considerable economic investments as described
earlier in paragraphs 114 - 120 and 138 - 140.
768. Finland obviously has an interest in the conditions of
passage through the Danish straits. Finland has also had every
opportunity through its Embassy in Copenhagen and through
numerous fomal and informal contacts between the Nordic
Govemments throughout the year to be fully aware of the precise
development in the plans and the actual stage of the construction
works for the building of a bridge across the Great Belt. Denmark,
therefore, for its part has had every reason to rely upon this conduct
of Finland as an acceptance of the bridge project as planned Le., as
a fixed constmction with vertical clearance of around 65 metres
allowing for al1existing ships using the Great Belt to pass under
the bridge, whereas no opening part of the bridge in the fom of,
for instance, a swing-bridge has ever been foreseen.
769. In this context it should be recalled that the plan to
constmct a high-level bridge across the Eastem Channel of the
Great Belt originated in the Commission Report of 1960 and has
never since been abandoned. The plan was made into law in 1973,
and the preparatory work was initiated the same year. In 1977, the time was ripe to announce the exact terms for the constmction of
the high-level bridge across the Eastern Channel of the Great Belt.
This was done on 12 May 1977 by a Circular Note to al1Heads of
Mission accredited to Denmark. Though Denmark of course
considered the bridge project as such to be legal under international
law - otherwise the Act of 1973 would be in violation of intematio-
na1 law, a point of view which has never been expressed by any
foreign State- it could be that the vertical clearance of 62 metres as
proposed would not meet the navigational needs of al1 States.
Denmark might not have been aware of the existence of certain
specific ships. Accordingly, the 1977 Circular Note -the first of its
kind in international relation- was designed to act as an assurance
to Denmark that the vertical clearance of 62 metres would meet
with no objection from foreign States. It was thus a cmcial, written
communication by Denmark to the international community -
following upon the announcement of the Project during the early
days of UNCLOS III in 1974 (para. 756). As stated in the Note, the
actual construction of the bridge was scheduled to begin in 1978 or
1979 and to go on for about eight years, and when constmction had
been completed the traffic separation scheme for the area would be
adjusted. The announcement of the height of the bridge (62 metres)
and the information about the time when actual construction would
start (1978 or 1979) could leave no Govemment in doubt about the
seriousness and actuality of the Project.
770. Within a year, the Note had been answered by several
States with only one State, the then Soviet Union, asking the
minimum height of the bridge to be set at 65 metres. Denmark was
ready to carry out the Project -when a change of Government took
place in the summer of 1978 with the formation of a Govemment
consisting of the Social Democratic Party and its long time
opponent the Liberal Party. This led to a postponement of the
whole Great Belt project for a period of approximately 4 - 5 years.
That political development came as a surprise to everybody and was
certainly not to be foreseen in 1977 and the first half of 1978. 771. Against this background, which is well-known to
Finland, it is remarkable to read the Finnish account in paragraph
542 of the Memorial which finishes: "...In al1the circumstances and
in the light of the long history of abortive plans to constnict a
bridge over the Great Belt, it is hardly surprising that Finland
should not have reacted immediately to the Danish Circular Note of
12 May, 1977. ...".It is indeed surprising that Finland should not
have reacted if the high-level Bridge across the Eastern Channel
created serious problems for Finnish ships, as it is now claimed.
The truth is, of course, that the bridge project did not cause such
problems as has been demonstrated in Chapter IV of Part 1.As far
as the Finnish MODUs are concerned, which at that lime had
occasionally passed through the Danish straits, the lack of any
Finnish reaction also in that respect points decisively towards an
attitude on the part of Finland similar to the view of Denmark and
other States according to which MODUs could not qualify as ships
having a right under contemporary international law to innocent
passage through the Danish straits.
772. Finland asserts that the announced vertical clearance of
62 metres did not give rise to any major concern because existing
ships were assured of being able to navigate the Great Belt "as in
the past", meaning that Finnish drill ships, semi-submersibles and
jack-ups which had already passed through the Great Belt would be
able to continue to do so (para. 543 of the Memorial). That
assertion violates the very logic of announcing the height of the
bridge, in so far as no bridge could be built with a height of 100
metres and more. Already in the 1973 Act it is stated in Section 2
that the design of the high-level bridgeshall allow for the necessary
navigational clearance Le.,the width and the height of the bridge. It
is indeed these two "clearances" which have always been at the
centre of the international legal considerations in constnicting
bridges across waterways with a heavy traffic of ships. To assume
that the words "as in the past" contains the possibility of inserting
an opening in the bridge would amount to nothing but wishful
thinking as no evidence exists in the long history of planning the
Fixed Link across the Great Belt to support such an assumption. Anopeninghad never been contemplatedasevidenced by Figure 1and
would run counterto the whole scheme fora high-level bridge.
773. Finlandfurtherexplainswhy the Govemment of Finland
did not respondto the 1977Note (para.544of the Memorial).The
express and simple announcement givenby the DanishMinister for
Public Works in the Danish Parliamenton 17 October 1978 (one-
and-a-half year after the diplomatic notification) in which the
Minister stressed thatthe GreatBelt Projectwas merely postponed,
is construedby Finlandin the following way:
"...However one interprets the tems in which the project
was finally suspended in 1978,there isno doubt that it was
put "into therefrigerator"for an indefinite period,even if it
was expected or anticipatedon the Danish side that workon
it might be resumed within a measurable period.
Accordingly, as from 30 August, 1978,at the latest,the then
Great Belt project, to which reference was made in the
Danish CircularNote of 12 May, 1977, was effectively
suspended for an undefined period. It follows that any
immediate threatto Finnishrightsand interestswas (at least
temporarily)removed as from the summer of 1978,so that
no reactionfrom Finlandto the Danish CircularNote of 12
May, 1977, was or could have been called for as from the
date of the announcementof the suspension. ...".
774. This representsaclearexampleof interpretationthrough
hindsight and contrary to the facts as they existed at the time as
explained in detail in Chapter II of Pari 1.On the other hand,it
reveals a close interest in Danishpolitics, especiallyas regardsthe
Great Belt Project. The more surprising is it then to read in
paragraphs553 -554 of the Memorialthat Finlandhad no idea that
the tunnel altemative had been abandonedin the fall of 1988,and
that it was not until receiptof the third Danish CircularNote of 24
October1989 that Finland and other States wereinfomed of the
high-level bridge of 65 metres. These assertions are in direct
contrastto the fact that Finland, for the first time, reacted to theBridge Project in July 1989Le., hefore the Circular Note of October
1989. That Finland did not consider the 1989Circular Note as the
crucial communication can be seen from the wording of the Finnish
reaction. Thus, the letter of 18 JUS 1989 addressed to the Danish
Maritime Authority asks for possible alternative routes for Finnish
drilling platforms with a full height of 150 metres (Annex 60). This
approach from Finland could not be understood by Denmark to
represent a request foradjusting the height of the bridge because no
bridge could be built with a vertical clearance of 150 mettes.
According to the letter, the Finnish industry had followed the
planning of a jïxed bridge across the Great Belt, so it was only
natural to read the letter as a request from Finland about how best
to adapt to the fixed bridge. In the Danish reply of 29 August 1989
(Annex 61) reference is made to the Sound as an alternative route
for offshore craft, aswell as to the possibility of modifying these
high structures for transportation.
775. Finally, Finland explains its passivity regarding the
Danish notifications in 1977 and 1987 by suggesting that the
decision to build the Bridge was not taken until 1988 (para. 554 of
the Memorial). However, the decision to build the bridge was taken
in 1973 (Act No. 414 of 13 June 1973) and specific notification of
the height of the bridge was issued in 1977. The Circular Note of
12 May 1977 is the decisive communication. That this is so, is
shown by the fact that States did react to the 1977 Note realizing
that now was the time to express any views conceming the
proposed design of the bridge. The 1977 Note offered a clear and
detailed basis on which to react. That the year 1977 was seen by
the international community as the relevant time for considering the
matter is moreover borne out by the fact that no State reacted to the
Circular Notes of 1987 and 1989 -except for Finland's objection
conveyed to the Government of Denmark in June 1990, more than
twelve years after the principal question of the bridge project was
settled.
776. What remained to be decided in 1989 was the exact
height of the bridge. That question had to be settled at a time when there was clarity on the design of the bridge, but before the
projected work had so far progressed as to render alterations that
might prove desirable, no longer possible. In the view of the
Govemment of Denmark, that point in time had been reached
already in May 1977 and, having received the comments from the
States concemed, Denmark was ready in the summer of 1978 to
send out notice for tender - a step which par haiard was never
taken.
777. When the 1973 Act was reactivated in 1987 through a
new act, the Govemment of Denmark believed itself to be assured
that the bridge project would not meet with any objections from
foreign States, as long as the vertical clearance would be set around
65 metres. Nevertheless, Circular Notes of 30 June 1987 and 24
October 1989 were sent to al1 Heads of Mission Accredited to
Denmark in order that they be kept informed about the progress of
work.
778. Basedon the 1987 Act notice for.tender by restricted
procedure for the East Bridge was given on 15 July 1989.At that
point in time the Govemment of Denmark, through the Report from
Det Norske Veritas, as well as through the reactions receivedup to
that time from foreign States had satisfied itself, that a vertical
clearance of 65 metres would meet the requirements of existing
traffic of ships through the Great Belt. Up to the date of 15 July
1989 Denmark had thus used its best endeavours as a strait State to
accommodate the need for passage through theGreat Belt for ships
of al1nations.
779. In the interest of promoting stability in international
relations based on the general concepts of good faith and equity,
internationallaw must require protest or some other form of action
on the pari of States in order to preserve their legal positions, in
cases where they believe that their legal rights maybe infringed by
acts performed or contemplated by another State, and where the
possibility of expressing such a protest in fact existed - see the
dictum in the Lotus case concerning the lack of protest incircumstances where according to international practice it would be
a normal procedure to react if a State believed that a violation of
international law had taken place (P.C.IJ. 1927Series A,No. 10, p.
29).
780. The duty for a State to protest, or to proceed to some
other form of action, in order to protect a legal right arises at the
time when the State by notification or otherwise has come into
possession of knowledge of such acts perfomed or contemplated by
another State which are presumed to infringe upon its own legal
rights.
781. The importance of the duty to protest or take other
similar action, and to do so within a reasonable time, is increasingly
dependent upon the relationship between the interests at stake for
either sidex7.Where a State is likely to proceed, in the absence of
protest, with a course of conduct involving great cost, and vital
national interests, another Party is expected to protest promptly if
its interests are likely to be adversely affected and are of
comparable importance. The political history of the Danish straits as
well as the Turkish and the Japanese Straits - as described in the
treatise on International Straits by Dr. Erik B~el - is clear evidence
of this fact. The States concerned have always been ready to lodge
a protest immediately with the strait State, whenever prospects of a
closure of the strait were presentE8.If, on the other hand, the
passage in principle has been kept free, the States concemed have
acquiesced in even detailed regulations of the traffic, including
In Article 13 of the "Draft anicles on the law of the non-navigational uses of
international watercourses" (Report of theternationalLnw Commission, 43th
Session (46- Suppl. No. 10)) the periodof re10yan obligatory notification from
a watercourse State of planned measures which may have an appreciable adverse
effect upon other watercourse States, fixed to six months only. According to
Article 16 of the Draft thetifying State may proceed with the implementation of
the planned measures, if it receives no communication from a notified State to the
effect that the planned measures are inconsistentith the pertinent mles on
utilization of international watercourses.
See ErikBrüel, International Straits, pp 101-108. Vol. 1 fixed bridges, such as the Bosphoms bridges, as long as the existing
regular traffic of ships has not been excluded.
782. In the present case there can be no doubt that, since the
adoption of the 1973 Act on theConstmction of a Bridge across the
Great Belt, States have been fully aware of the paramount
importance of that project, including the high-level bridge across the
Eastem Channel, to the Danish society and of the importance for
the Govemment of Denmark to be informed well in advance of the
execution of the Project of any reactions on the part of other States.
The huge dimension of the Project as well as its integrated
character makes it a duty for States concemed to react - if
necessary - without undue delay. There has been ample time to
react.
783. Thus, timely protest is an essential element in the
administration of international straits.Consequently, the fact that no
State protested against the Danish Bridge Project within a
reasonable time, just as no State has ever protested against the
existence of the Bosphorus bridges, could not be interpreted by the
Govemment of Denmark otherwise than as an acquiescence in the
construction of the bridge.
784. The lack of protest by the international community to
the Great Belt Bridge Project goes as far back as the beginning of
UNCLOS III where a proposa1 which would prohibit States from
placing in Straits any installations which would interfere with or
hinder the transit of ships was defeated (paras. 755 - 757). The
Danish opposition to this proposa1was presented to the Conference
in an intervention on 22 July 1974 in which it was stated intea rlia
that it was of vital social and economic importance for Denmark
and its neighbouring countries to be able to build bridges or tunnels
across the Danish straits, and that the Danish Parliament had
already taken a decision in principle to that effect. The intervention
met with no objection from any State. 785. The line of reasoning developed above concerning the
principle of good faith does not necessarily mean that al1 other
States favour the implernentation of the Bridge Project, but it must
mean that al1States, with the exception of Finland, have accepted
that priority in law be given to the building of the high-level bridge
in the exercise of national sovereignty and out of concem for the
further development of the Danish society and the well-being of its
population.
786. The present case demonstrates, in the view of the
Govemment of Denrnark, a conflict between two interests govemed
by two sets of legal rights. First and foremost, there are the
sovereign rights of a coastal State over itsterritorial sea, including
international straits. Second, there is thegeneral right of innocent
passage through the territorial sea, appertaining to ships of al1
Nations, with the particular safeguards attaching to that right of
passage in an intemational strait. The balancing of these two sets of
rights, which are lacking in precision, must in any given case be
subject to a legal evaluation taking into account the principle of
equity recognised by intemational law as an expression of justice
and the mle of law.
787. In its Memorial (para. 420) Finland quotes a passage
from Dr. Erik Brüel to the effect that Denmark.cannot actively
deprive the straits of their character as navigable waterways. The
quotation is used in support of the following contention contained
in the same paragraph:
"While there can be no doubt that territorial sovereignty
over the land whose coasts border the strait and over the
waters of the strait includes the right to build a fixed link
between the coasts separated by the strait, there can be no
doubt either that such a right cannot be exercised in such a way as to depnve that strait - in whole or in part - of its
character as a navigable waterway. ...".
788. The interesting aspect of that proposition is Finland's
recognition of the fact that Danish sovereigntyprovides the basis
for constmcting a bridge across the Great Belt as long as that con-
struction does not deprive the strait of its navigable character. As it
appears from Dr. Erik Brüel's treatise on international straits, the
Danish policy towards its straits since the conclusion of the 1857
Treaty can be characterized as liberal (conipared to the policy of
other strait states) and far from depriving the Great Belt of its
character as a navigable waterway the Kingdom of Denmark has
endeavoured to improve the conditions for the passage of ships
through the Great Belt, taking into account the changing
development, in size and character, of that traffic. In particular,
reference is made to the establishment in 1975 of the so-called
Route T through the Great Belt (paras. 568 - 569), which has been
further improved since 1975 in order to improve the safety of
navigation in accordance with experience gained. The constmction
of the bridges and the tunnel across the Great Belt are also to be
seen as an essential improvement in the safety of navigation in the
Belt in so far as the daily transport of some 28,000 persons and
11,000 tonnes of goods carried by approximately 150 ferry
crossings will from now on be separated from the north-south
bound traffic of ships. The alternative, a further intensification of
the ferryboat service, would make the Belt more and more
complicated and dangerous to navigate.
789. Finland treats the Danish straits as waterways through
which any form of passage may take place up to their natural
limits. Thus, in the Memorial (para. 241) it is stated that
"..it can now be concluded that with a future increase of
ship draught into the maximum allowable Baltic draught (15
m), ships might have an air draught of about 99 m and in
any case much in excess of 65 m. ..."and in paragraph 227 it is said:
"The possibility cannot be excluded that the consequent
increases in tanker height, together with an already used
transportation method (i.e. "lightening" a VLCC into Baltic
draught) becomes critical if the Great Belt bridge will have
a clearance of 65 metres."
790. However, neither can it be excluded that the passage of
such ships or floating objects does not meet the requirement of
"innocent passage" taking into account the increasing traffic in the
Great Belt, in particular the east-west bound traffic, if the fixed
traffic link were not established. A glance at the map of Denmark
shows how narrow the Danish straits are and how vulnerable the
surrounding land territory is to accidental pollution and collision
disasters. The Danish straits cannot be subject to unrestricted
exploitation. The well-being of the people living in the vicinity of
the straits must be given due and primary consideration. In this
respect the bridge solution for the Fixed Link across the Great Belt
strikes an almost perfect balance between the interests of the
intemational community, the national Danish interests, and the
future safety of navigation through that strait corresponding to a
nom of equity.
791. While the high-level East Bridge across the Great Belt
respects the existing traffic of ships navigating that strait it is
equally clear that the bridge does not and cannot respect any piece
of cargo being towed or transported through the Great Belt. The
mle of equity is there to adjust the obvious imbalance between the
constmction of the high-level bridge in the exercise of national
sovereignty and the occasional transport of an outsized piece of
cargo carried on a heavy-lift ship claimed to be part of the right of
innocent passage. If such transports were to be respected it would
spell the end of the constmction of high-level bridges across
waterways govemed by international rules securing innocent
passage or freedom of navigation through those waterways. It is
impossible to plan a bridge if future cargo - like future ships- hadto be taken into account. The principle of equity redresses such a
situation and secures an equitable result.
792. In order to reach an equitable result, one cannot escape
a proportionality test of the factual circumstances of the present
case. In this respect, it immediately leaps to the eye that the Fixed
Link across the Great Belt will in 1997 secure an estimated daily
transportation of some 60,000 persons and 25,000 tonnes of goods
crossing the Belt and leave untouched the regular traffic of some
20,000 ships yearly through the Belt. Against these figures stands
the passage until today of less than one Finnish offshore drilling
unit a year and no actual plans for any passage in the coming years.
793. The demand by Finland for inserting an opening in the
bridge - which is not feasible in particular because of the high risks
involved - would in tems of costs be out of al1proportion to the
costs involved in completing the last section of the derrick of an
offshore craft after passing under the bridge, an operation which
carries no risk. Moreover, the Sound is a perfectly viable route for
the passage of the Finnish MODUS.
794. In sum, the importance of the Great Belt Project to the
traffic of the region completely outweighs the importance of the
possible passage of a few Finnish offshore craft.
795. To advance this point of view in the discussion of the
legal rules governing the present dispute is but to recognize the
importance of the Court's dictum in its Advisory Opinion of
20 December 1980 conceming lnterpretation of the Agreement of
25 March 1951 between the WHO and Egypt where it says:
"...But a rule of international law, whether customary or
conventional, does not operate in a vacuum; it operates in
relation to factsand in the context of a wider framework of
legal rules of which it foms only a part. Accordingly, if a
question put in the hypothetical way in which it is posed in
the request is to receive a pertinent and effectua1reply, the Court must first ascertain the meaning and full implications
of the questions in the light of the actual framework of fact
and law in which it falls for consideration. ..." (I.CJ.
Reports 1980, p. 76, para. 10).
796. The Govemment of Denmark submits that the factual
circumstances of the present case evaluated against the principles of
good faith and equity support the conclusion that the constmction of
the high-level East Bridge across the Great Belt does not violate
international law.
C. Summary of Legal Arguments
797. The Danish legal arguments may be summarized in the
following way:
(1) The fact that the Danish straits form part of Denmark's
territorial sea and have done so throughout the history of the
Kingdom of Denmark rnakes it a nght of Denmark in the
exercise of its national sovereignty to regulate the passage
through the straits and to constmct a fixed link of vital
interest to the development of the Danish society, as long as
such measures do not unduly interfere with the international
community's rightof innocent passage through the straits.
The construction of the high-level bridge across the Eastern
Channel of the Great Belt with a main span of 1,624 metres
and a vertical clearance of 65 metres does not interfere with
the existing traffic of ships through that strait - on the
contrary, the existence of the bridge will enhance the safety
of navigation through the Belt by removing the steadily
increasing cross feny traffic. (2) Floating offshore units such as jack-ups and semi-
submersibles do not come within an intemationally
recognized concept of ships and are, therefore, not entitled,
as a matter of legal right, to unimpeded passage through the
Danish straits.
Furthemore, it is an established fact that these so-called
MODUs have never navigated the Danish straits, like ships
do, but have been towed through or transported on heavy-lift
ships.
Even if these MODUs were to be considered ships Denmark
is entitled, to exercise the option granted by Article 1,
Section 1 of the Copenhagen Treaty of 1857, and decide to
establish a traffic separation scheme according to which the
drilling platfoms shall exercise their right of passage
through the Sound and not through the Great Belt.
Furthemore the right of the coastal State to direct ships
with special characteristics to use such sea lanes and traffic
separation schemes as it may designate is an established
customary rule codified in Article22 of the Law of the Sea
Convention of 1982.
(3) Finland has acknowledged not being a Party to the 1857
Treaty but a third party beneficiary. It followsthat it cannot
exercise its rights in a more extensive manner than the
actual Parties, which have accepted a 65-metre clearance.
Article 36, paragraph 2 of the Vienna Convention on the
Law of Treaties provides that tkird party beneficianes must
exercise their rights in accordance with the conditions
established by the Parties in conformity with the treaty.
(4) The notion of objective régimes establishedby treaties is
an obsolete concept, rejected by contemporary international
law. The legal position conceming treaties establishing a
right of passage over maritime waterways is that theyconstitute treaty stipulations in favour of al1States, based on
Article 36 of the Vienna Convention.
(5) The legal situation which has developed from the
Copenhagen Treaty of 1857 is not changed by the legal
régime codifiedin the 1958 Geneva Convention with regard
to territorial waters and international straits. The principle of
innocent passage is firmly established, and so also is the
competence of the territorial State to administer the right of
passage.
(6) The 1982 United Nations Convention on the Law of the
Sea exempts expressly international straits like the Danish
straits from that part of the Convention which deals with
straits used for international navigation. Thus, the right of
transit passage established by the 1982 Convention as a
result of the fixing of the tenitorial sea at a maximum of 12
nautical miles does not apply to the Danish straits, which
are less than 6 miles wide.
(7) No mle of customary international law has developed to
allow drilling platforms an unimpeded right of passage
through the Danish straits.
(8) Equitable principles such as the principle of good faith
and the pnnciple of equity support the conclusion that
Denmark has not acted against international law in planning,
deciding and now constnicting the Fixed Link across the
Great Belt. Acting within its national competence, Denmark
has notified the international community several times about
the Project to build inter aliaa high-level bridge across the
Great Belt. No objection has been presented to the success-
ive Danish Governments in charge of the Project -until thernuchbelatedFinnish diplornatic reaction on J 19ne 1990,
more thantwelveyearsafter thefirst andcrucialnotification
was issuedon 12 May 1977. Denrnarkhas beenentitledto
rely on the silence of Finlandin exercising its sovereign
nght to constructtheFixedLinkacrosstheGreatBelt. PARTIII
SUBMISSIONS 798. In the light of the facts and the law set forth above,
May ifplease the Court to adjudge anddeclare
(1) that the niles of international law applicable to the
Danish straits do not prevent the Kingdom of
Denmark from constmcting the Fixed Link across
the Great Belt as planned and decided, and
(2) that the Submissions by Finland cannot be sustained,
and consequently should be rejected.
Copenhagen, 18 May 1992
TYGELEHMANN PER MAGID PERFERGO
Agents of the Governmentof rheKingdom of Denmark LIST OF MAPS
(Volume 1)
Map1 Denmarkand theDanishStraitswith Navigational
RoutesT and B
Map II The DanishStraits,TerritorialSea andIntemalWaters
Map III The Areaof the Constructionof the Fixed Linkacross
the GreatBelt
MapIV The Sound
MapV WaterDepts in the GreatBelt LIST OF FIGURES
(Volume 1)
Page
Figure1: PUBLISHEDDRAWING OF PROPOSALS
FORBRIDGES ACROSS THEEASTERN
CHANNEL .......................... 36
Figure 2: THEEASTERN RAILTUNNEL nd
Figure 3: THEWESTBRIDGE .............. following42
Figure 4: RAMPS ALONG SPROG~,and ................
Figure 5: MODEL OF THE EASTBRIDGE ......following44
Figure 6: MAP OF DENMARK WlTH ITPOPULATION
(INMILLIONS)AND ITSMAINBRIECES ....... 52
Figure 7: MAP OF DENMARK WlTHNUMBER OFCARS
(INMILLIONSA)NNUALLP YASSING THE
MAJORBRIDGES THE KATTEGAT THE
FEHMARN BELT,AND THE DANISH-GERMAN
BORDER .......................... 54
Figure 8: RAUMA-REPOU DRILLSHIP,VALENTIN
SHASHIN,WHICHPASSED THROUGH THE
SOUND INOCTOBER 1985.and .............
Figure 9: RAUMA-REPOU SEMI-SUBMERSIB RIGE,
KINGSNORTH EXPLORERWHICH WAS
TOWED THROUCH THESOUND IN
APRIL1976 ................... following84
Figure 10: JACK-UPRIGINWETTOW ........ follondng88Figure 11: MONO-HULCLRANE VESSEL ,HOR.
CAPABLEOF PASSINGUNDER THE
EASTBRIDGE* ....................... 141
Figure 12: CATAMARA CRANE VESSEL,ETPM 1601,
CAPABLEOF PASSINGUNDERTHE
EASTBRIDGE* ....................... 142
Figure 13: SEMI-SUBMERSICBLENEVESSEL,
HERMOD C,APABLEOFPASSING
UNDERTHE EASTBRIDGE .............. 143
Figure 14: THEFIRSTLITTLBELTBRIDGEa,nd ...
Figure 15: THEFATIHSULTANMEHMET
BRIDGE .................. following 158
Figure 16:MODEL OF THEMESSINABRIDGEa ,nd.........
Figure 17: THEVERRAZANN OARROWB SRIDGEfollouiing 160
Figure 18: THEGOLDENGATEBRIDGE, and
Figure 19: THEMARACAIBBORIDGEa ,nd
Figure 20: THEKANMON BRIDGEa,nd
Figure 21: THEBISANSETOBRIDGE ........ following 164
Figure 22: VERTICCLLEARANCESOF BRIDGES
ACROSS MAJOR WATERWAY SSEDBY
INTERNATIONSAHLIPPIN............... 167
Photographscounesy of Oilfield Publications Lirnited.
273 MAPV
1.Knudshoved
Water Depthsin the GreatBeit.
Compiled by
ROYALDANISHADMINISTRATIONOF
Scale = 1 : 169SW NAVIGATIONAND HYDROGRAPHIC LIST OF ANNEXES
(Volume II)
Page
Annex 1. Letter of 23 May 1936 from the Ministry of
Foreign Affairs to the Ministry of
Public Works .............................. 1
Annex 2. Opinion of 4 February 1957by Professor
Max S0rensen on Questions of International
Law relating to a Bridge across
the Great Belt ............................. 2
Annex 3. Final Report from the Great Belt
Bridge Commission, 1 December 1959
(Considerations of Navigation).....
Annex 4. Final Report fromthe Great Belt
Bridge Commission, 1 December 1959
(Recommendations) ......................... 9
Annex 5. Bill of 8 November 1961 on Technical
Preparatory Works for the Constmction
of a Combined Road and Railway Bridge
across the Great Belt ....................... 12
Annex 6. Act No. 379 of 20 December 1961 on
Technical Preparatory Works for the
Construction of a Combined Road and
Railway Bridge across the Great Belt............ 15 Annex 7. Opinion of 29 January 1962by Professor
Max Sflrensenon Questions of International
Law relating to a Bridge across the
GreatBelt ............................... 17
Annex 8. Opinion of 8 Marcb 1971by Professor
Max Sriirensenon International Law
Aspects of a Permanent Connection
across the Great Belt ....................... 26
Annex 9. Bill of 16January 1973on the Constmction
of a Bridge across the Great Belt ............... 33
Annex 10. Act No. 414 of 13 June 1973on the Constniction
of a Bridge across the Great Belt............... 45
Annex II. Invitation to Contractors of International
Standing to Prequalify for Bidding for the
High-Level Bridgeacross the Eastern Channel,
12 May 1977 ............................. 48
Annex 12. Circular Note of 12 May 1977 from the Danish
Ministry of Foreign Affairs tol1Heads of
Mission accredited toDenrnark ................ 49
Annex 13. Note Verbale of 6 December 1977 from the
Embassy of the People's Repiiblicof Poland
to theDanish Ministry of Foreign Affairs ......... 51
Annex 14. Note Verbale of 29 March 1978 from the
Embassy of the Union ofSocialist Soviet
Republics to the Danish Ministryof
Foreign Affairs ........................... 53Annex 15. Note Verbale of 28 June 1978from the
Danish Ministryof Foreign Affairsto
the Embassy of the Union of Socialist
Soviet Republics .......................... 55
Annex 16. Note Verbale of 3 July 1978 from the
Danish Ministryof Foreign Affairsto
the Embassy of the People's Republic
of Poland ............................... 58
Annex 17. Opening Statement to the Danish Parliament
by the Danish Prime Minister, 3October 1978 ..... 60
Annex 18. Statement to the Danish Parliamentby the
Minister for Public Works, 17October 1978 ....... 61
Annex 19. Note Verbale of 18January 1979 from the
Embassy of the Union of Socialist Soviet
Republics to the Danish Ministryof
Foreign Affairs ........................... 64
Annex 20. Statement to the Danish Parliamentby the
Minister for Public Works, 15 Febmary 1983 ...... 66
Annex 21. Statement to the Danish Parliamentby the
Minister for Public Works, 17 April 1985 ......... 77
Annex 22. Political Agreementbetween the Govemment and
the Social Democratic Party of 12June 1986 ...... 94
Annex 23. Bill of21 January 1987on the Constmction
of a Fixed Link across the Great Belt ........... 100
Annex 24. Act No. 380 of 10June 1987on the Constmction
of a Fixed Link across the Great Belt .......... ; 112Amex 25. Circular Note of 30 June 1987 from the Danish
Ministry of Foreign Affairsto al1Heads of
Mission accredited to Denmark ............... 120
Amex 26. Statement to the Danish Parliament by the
Minister for Transport and Communication,
9 November 1988 ......................... 122
AM~X27. Article fromHufvudstadshladetof
9 September 1988: "A Bridge-Builder from
Denmark" .............................. 125
Annex 28. Article from Hufvudstadshladetof
23 September 1988: "TheGreat Belt gets
its Bridge" .............................. 126
Annex 29. Article from HelsinginSanomarof
23 September 1988: "Bridge and Tunnel
for the GreatBelt" ........................ 127
Annex 30. Revised Studyon Air-Draught of Merchant Ships
prepared by DerNorske Veritas, IOMarch 1989 ... 128
Annex 31. Circular Note of 24 October 1989from the
Danish Ministryof Foreign Affairsto al1
Heads of Mission accreditedto Denmark ........ 145
Annex 32. Report of 5 November 1974from the European
Parliament Committee on Regional Policy and
Transport on Permanent Links across certain
Sea Straits.............................. 147Annex 33. CouncilRegulation (EEC) No. 3359190of
20 November 1990 for an Action Programmein
the Fieldof Transport Infrastructure with a
View to the Completionof an Integrated
Transport Marketin 1992 ................... 163
Annex 34. Reportof 21 June 1991on Relations betweenthe
European Community andthe Membersof EFïA .. 175
Annex 35. Report fromLloyd's Register of Shipping,
5 May 1992 ............................. 181
Annex 36. Report from British MaritimT eechnology Ltd.,
6 May 1992 ............................ 215
Annex 37. Diagram showing the Air Draughtsof
Tall Passenger Ships over the past
60 years ....................... following 252
Annex 38. Statementfrom WorldCity Corporation,
New York, conceming Determinationof Air
Draught of World City,4 May 1992 ............ 253
Annex 39. Statement from Knud E. Hansen AISconceming
Determinationof Air Draught of Ultimate Dream,
8May 1992 ............................. 255
Annex 40. Notice concemingRadio Reponing for Ships
with anAir Draught exceeding35 metres
Navigating throughthe Dredged Channelat
Drogden in the Sound ...................... 256
Annex 41. IMO Resolution A.620(15) of 19November 1987
on Navigation throughthe Entrancesto the
Baltic ................................. 258 Page
Annex 42. IMO Resolution A.579(14) of 20 Nonvember 1985on
the Use of Pilotage Services in the Sound ........ 262
Annex 43. The Baltic Deep-Sea Pilotage publishedby the
Baltic Pilotage Authorities Commission,
First Edition1989 ........................ 264
Annex 44. List of Finnish Ships with Draughts of
7.0 metres and above using the Drogden Channel
with Pilot on board during the Period 1987-1991 ... 266
Annex 45. Report from London Offshore Consultants,
12 May 1992 ............................ 268
Annex 46. Recommendation from PIANC on Underkeel
Clearances for Large Vessels up to 600,000 DWT . 369
Annex 47. Statement from Der Norske Veriras
ClassificarionAIS on the Scope of "Standard for
Insurance Warranty Surveys in Marine Operations",
11 May 1992 ............................ 370
Annex 48. Statement from Der Norske Veritas
ClassificarionAIS on the Report from
London Offshore Consultants, 11 May 1992 ...... 372
Annex 49. List of MODU Building Yardsbehind Fixed Bridges
and other Height Constraints ................ 376
Annex 50. Ordinance No. 437 of 21 December 1966on the
Delimitation of theTemtorial Sea ............. 378
Annex 51. Letter from the Rumanian Ministry of Industry,
11 February 1992 ......................... 386 Page
Annex 52. Notification from the Government of ltaly to the
International Maritime Organization concerning the
Messina Bridge Project, I June 1988 ........... 388
Annex 53. Repon of the Sub-Committee on Safety of Navigation
on its 35th Session, 2 Febmary 1989 (Navigational
Aspects of a Bridge over the Strait of Messina).... 392
Annex 54. Repon of the Maritime Safety Committee on its
57th Session, 2 May 1989 (Navigational Aspects of
a Bridge in the Strait of Messina) ............. 394
Annex 55. Repon on Proposais for a Fixed Channel Link
Presented to Parliament by theUK Minister of
Transport, September 1963 .................. 395
Annex 56. Invitationto Promoters for the Development,
Financing, Constmction and Operation of a
Channel Fixed Link between France and the United
Kingdom, April 1985 ...................... 398
Annex.57. Statement of 20 January 1986by the
British Secretary of State for Transport
to theHouse of Commons .................. 401
Amex 58. Proceedings from the 1991-1992 Session of
the Second Chamber of the Houses of Parliament
of the Netherlands on a Westerschelde Fixed Shore
Connection ............................. 404
Annex 59. Dispatch No. II from Ambassador P. Michaelsen
(Denmark), 21 March 1989 .................. 408
Amex 60. Letter from the Embassy of Finland to the Danish
Maritime Authonty, 18 July 1989 ............. 409 Page
Annex 61. Reply from the Danish Ministryof Foreign Affairs
to the Embassy of Finland, 29 August 1989 ...... 41 1
Annex 62. Letter from the Finnish State Secretary,
Mr. Ake Wihtol, to the Danish Permanent
Under-Secretary of State for Foreign Affairs,
Mr. Otto Meller, 25 August 1989 .............. 412
Annex 63. Note Verbale of 19 June 1990 from the Embassy of
Finland to the Danish Ministryof Foreign Affairs .. 413
Annex 64. Note Verbale of II July 1990 from the
Danish Ministry of Foreign Affairsto
the Embassy of Finland ..................... 415
Annex 65. Note Verbale of 7 September 1990 from the
Embassy of Finland to the Danish Ministry
of Foreign Affairs ........................ 416
Annex 66. Note Verbale of 2 October 1990 from the Danish
Ministry of Foreign Affairs to the Embassy of
................................
Finland 417
Annex 67. Note Verbale of 5 November 1990from the
Embassy of Finland to the Danish Ministry
of Foreign Affairs ........................ 418
Annex 68. Letter of 9 November 1990 from the Finnish
Minister for Foreign Trade, Mr. Pertti Salolainen,
to the Danish Minister of Industry,
Ms. Anne Birgitte Lundholt .................. 420
Annex 69. Letter of 6 Febmary 1991from the Prime Minister
of Finland, Mr. Harri Holkeri, to the Prime Minister
of Denmark. Mr. Pou1Schlüter ................ 422 Page
Annex 70. Letter of 20 Febmary 1991from the Prime Minister
of Denmark, Mr. Poul Schlüter, to the Prime Minister
of Finland, Mr. Harri Holkeri ................. 424
Annex 71. Comments of the Danish Govemment on Finland's
Proposals for Establishing an Opening in the
East Bridge ............................. 427
Annex 72. Ordinance No. 73 of 27 Febmary 1976Goveming the
Admission of Foreign Warships and Military Aircraft
to Danish Territory in Time of Peace ........... 442
Annex 73. Opinion of 22 October 1962by Professor Max S@rensen
on the Impact of the Convention of 29 April 1958on
the Continental Shelf on theConstmction of a Bridge
across the Great Belt ...................... 446
Annex 74. Article by Professor Sjur Brækhus onthe Concept of
Ship and Ship Equipment. Nationality of Ship.
Measurement and Identification of Ship ......... 449
Annex 75. 1990-91Summary of Register Books and Statistical
Publications issued by the Committee of Lloyd's
Register of Shipping ....................... 456
Annex 76. IMO Resolution A.550(13) of 17 November 1983on
Apportionment of Expenses among Member States . 459
Annex 77. Statement by the Danish Commissionerat the
Meeting of the Conference on the Redemption of
the Sound Dues on 16 Febmary 1857 .......... 461
Annex 78. International LawCommission's Debate on the Draft
Convention on the Law of Treaties,
4-5 ana 8 June 1964 ........................ 463 Page
Annex 79. United Nations Conference on the Lawof Treaties,
35th Meeting of the Committee of the Whole,
23 April 1968 . .. . . . .... . . ....... . . ..... 501
Annex 80. Third United Nations Conference on the Law of
the Sea, Second Committee, IIth Meeting,
22 July 1974, Statement by Mr. Fergo, Denmark .. . 512
Annex 81. Third United Nations Conference on the Lawof
the Sea, Second Committee, IIth Meeting,
22 July 1974, Statement by Mr. Manner, Finland .. . 515
CERTIFICATION . ...... .. .. . . . ... . ....... . . ..... 517 MAPV
1.Knudshoved
Water Depthsin the GreatBeit.
Compiled by
ROYALDANISHADMINISTRATIONOF
Scale = 1 : 169SW NAVIGATIONAND HYDROGRAPHIC
Counter-Memorial of the Government of the Kingdom of Denmark