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Bridge over troubled waters: Growing maritime dispute between Croatia and Bosnia, neglected by the EU

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Authors: Dr. Enis Omerović and Adil Kulenović
The bilateral international agreement on the state border between Bosnia and Herzegovina and the Republic of Croatia, known as the Agreement on the Border between the two states, or more familiarly, as the Tuđman-Izetbegović Agreement, signed in Sarajevo on 30 July 1999 between the then President of the Republic of Croatia, Franjo Tuđman, and the Chairman of the Presidency of Bosnia and Herzegovina, Alija Izetbegović, represents in its 23 Articles, conditionally, “a valid act since it has been applied until a new one is made” (V.Đ. Degan, 2013).

This Agreement could also be perceived to contain a transitional or provisional solution, since it has never been ratified by any parliament and does not serve its ultimate purpose – the permanent establishment and determination of the land and sea border between the two neighbors. In this regard, it can even be argued that the Republic of Croatia de facto abandoned the execution of this Agreement when its official authorities decided to embark on the building of a permanent construction at sea. This all supports the fact that the issue of delimitation and demarcation at sea, especially in the area of ​​the Bay of Neum and the Mali Ston Bay, is still permanently undefined and unsettled and thus requires, in our opinion, a serious step towards opening an official dialogue with Zagreb with the involvement of EU institutions, since the Republic of Croatia is a member of the European Union.

The second difficulty should be addressed together with the first. It would be especially important to define the sea boundary, regarding the tip of the Klek Peninsula and the uninhabited islets, Veliki and Mali Školj or, more precisely, the rocks in the Mali Ston Bay, which are part of a unique geomorphologic unit, together with the Klek Peninsula. If we draw the line of equidistance for purposes of delimitation of two states whose shores in one bay lie or are opposite to one another (the Peninsula of Klek and Pelješac), which is in accordance with the international law of the sea, as well as Article 4 (3) of the bilateral Agreement which, inter alia, prescribes that border at the sea stretches “the median line of the sea area between the land of Bosnia and Herzegovina and the Republic of Croatia”, it could be claimed that the disputed area would belong to Bosnia and Herzegovina. Closely connected to this, the question of Bosnia-Herzegovina’s access to the High Seas or international waters of the Adriatic Sea and other world seas should be addressed, where no country in the world has territorial sovereignty, nor does it exercise any sovereign rights. High sea areas are world seas and oceans which are outside any state territory and provide a regime of free navigation and overflight, as well as other freedoms inherent to the High Seas. On this part of the planet, according to general customary international law, all countries in the world, under certain circumstances, exercise their jurisdiction over vessels flying the flag of their country.

For these reasons, the UN Convention on the Law of the Sea from 1982 (UNCLOS) (ratified both by the Republic of Croatia and Bosnia and Herzegovina) states in Art. 7 (6) of the Convention that, in declaring its straight baselines, from which the width of the territorial sea is measured, the coastal State may not cut off the territorial sea of ​​another coastal state from the High Seas or the exclusive economic zone. As things stand currently, in order to get from the waters of Bosnia and Herzegovina by vessel to the High Seas, it is necessary to pass through the internal waters and the territorial sea of ​​the other coastal state, so that, in crossing the line that represents the outer boundary of the territorial sea, one leaves the sovereign territory of the Republic of Croatia. Further into the High Seas, the Croatian Protected Ecological and Fishing Band (ZERP) has been declared and covers the sea area in the Adriatic Sea from the external border of the territorial sea in the direction of the open sea to its outer boundary, determined by the general international law, and temporarily follows the line of demarcation of the continental shelf established by the Agreement between Italy and the Socialist Federal Republic of Yugoslavia concerning the Delimitation of the Continental Shelf between the two Countries in the Adriatic Sea from 1968.

In fact, it is essential for Bosnia and Herzegovina to secure a specific route, that is to say, a corridor, which will physically connect its waters with the High Seas, since it is in an unfavorable geographic position, due to its sealed coastline. At this level, it is state practice to support coastal states to limit the width of their territorial sea, due to the undisputed flow or passage of the other coastal state to the High Seas, in accordance with the above-mentioned UN Convention on the Law of the Sea, which represents a codification of this branch of international law. Examples of this are the Republics of Estonia and Finland in the Gulf of Finland in the Baltic Sea, in relation to the Russian Federation (St. Petersburg area), and the Republic of France in relation to the territorial sea of the Principality of Monaco in the Mediterranean Sea.

Hence, Bosnia and Herzegovina should not accept the guarantee of the neighboring state that Bosnia and Herzegovina will have the right only to innocent passage for all vessels to and from Neum or, in the case of some other ports in the state territory of Bosnia and Herzegovina, since Neum is extremely unconducive to the construction of a larger port which would be open to international traffic – we predict that a port of this type and category could be built on the Klek Peninsula, whose waters are much more suitable, especially in respect of access and sea depth, for the construction of an international port. This is because the right to innocent passage of a vessel is linked to the territorial sea, not to the internal waters of the coastal state. This should have been precisely defined in accordance with the principles and rules of international law, preferably by a bilateral international agreement between the two neighboring states, namely, the existence, the position, the proper width and the legal regime of such a corridor or waterway, which would probably be through the Neretva and the Korčula Channel, to move all vessels to and from Bosnia and Herzegovina. The legal regime of such a corridor should be explicitly articulated in writing, together with the rights and obligations of both contracting parties, all in accordance with international law.

Therefore, it could be understood that there is a noticeable difference between the right to innocent passage of foreign ships through the territorial sea of ​​a coastal state and the formation of a corridor with a special legal regime. The latter would most likely pass through Croatian territory, as it would be unrealistic to expect that the Republic of Croatia in the area of ​​such a corridor remains without its territorial sovereignty and integrity. This is regardless of the fact that it not very legally rightly inherited from the Socialist Federal Republic of Yugoslavia, by its Maritime Code, the straight baselines under the conditions of more sovereign states whose coastlines are touched and lean on one another in the same sea area. Namely, the disputed area in terms of the declaration of these straight baselines is from the​Cape Proizd (near the island of Korčula) all the way to the southwestern tip of the island of Vodnjak, near some of the more famous Paklinski islands (along the island of Hvar), as this act simply contributed to the “closure” of Bosnian and Herzegovinian waters. We have written “most likely to pass” since it is hard to imagine that in the area of ​​the Neretva and Korčula Channels, with a width of not less than 1-1.5 nautical miles, that condominium (shared sovereignty) can be established or that an international legal regime be determined completely outside Croatian sovereignty.

Finally, in support of the assertion that any coastal state should have unimpeded (not just innocent passage, which is subject to various restrictions on the part of the coastal state) access to the High Seas, there is the final determination of the arbitral award of the Permanent Court of Arbitration in The Hague in the case the Republic of Slovenia and the Republic of Croatia of 2017, according to which the Republic of Slovenia, through the so-called junction of 2.5 nautical miles wide, i.e. the physical link of its territorial waters with the high seas area of ​​the North Adriatic was awarded a corridor from their waters, where Slovenia enjoys full sovereignty to the High Seas, where many freedoms are guaranteed to all countries of the world, both coastal and non-coastal, as well as to those with an unfavorable geographic position regarding access to the sea, as in the case of Bosnia and Herzegovina. Namely, as the Chairman of the Arbitration Council in this very case, G. Guillaume, stated in the public statement of the arbitral award, “the junction between the Slovenian territorial sea and the High Seas is a space where ships and planes have the same right of access to Slovenia as well as in the High Seas. The Court identified the area of ​​the Croatian territorial sea that is adjacent to the Italian waters within which a special legal regime would be applied. The corridor is approximately 2.5 nautical miles wide, and located immediately next to the border, according to the Treaty of Osimo, within Croatian territorial waters. A special legal regime should guarantee the integrity of the Croatian territorial sea, and Slovenian free communication between its waters and the High Seas.” It follows that the free communication of a coastal state between its waters and the High Seas is not the same as its right/obligation to innocently pass through the waters of another coastal state. It should, therefore, be concluded that the first term refers to the freedom of navigation and over flight to a little more extent than that provided by the institute of the innocent passage of foreign ships to territorial sea, which is only a necessary passage, since every foreign vessel must navigate through this area on the shortest conventional route, without disruption or delay. Moreover, this accessory or connecting corridor would have a kind of limitation of Croatian sovereignty and jurisdiction, since it would be in the spirit of this particular legal regime that would go in the middle of the Neretva and Korčula Channel. It would be worth questioning, moreover, whether Croatian internal waters should be left where they are now. The same question appeared to have been posed by a legal scholar from Croatia – “the question remains whether the waters of Croatia delimited by the territorial sea of Bosnia and Herzegovina can continue to be considered as having the legal status of internal waters.” (B. Vukas, 2006). 

Accordingly, a maritime corridor with a specific legal regime needs to be differentiated widely, or clarified in detail, so it does not necessarily represent identical international legal categories with the right to innocent passage of foreign ships and the right of transit passage. These latter terms are characteristic of the very specific maritime zones and parts of the sea which are not the subject of our current exploration and explication.

When all interconnected notions finally acquire their coherent power in terms of consistency, then will be the time to discuss continuing the construction of a permanent artificial installation on the sea, called the Pelješac Bridge (mainland – Pelješac Peninsula). Having understood that the Republic of Croatia only wants to connect two parts of the mainland, that is, the northern and southern ends of their country with a high-quality road link, this modern traffic connection should not endanger, or be detrimental to, the interests of their neighbors. Therefore, for the purpose of solving the traffic difficulties of the Republic of Croatia, the continuation of the construction of the Pelješac Bridge should be permanently solved by settling the so-called previous issues elaborated earlier – the permanent maritime delimitation on the Adriatic Sea as well as the permanent determination of the land border through a bilateral international frontier treaty, which will be applied equally and in good faith by both signatory parties and which will, above all, be confirmed in both the Croatian Parliament and the Parliamentary Assembly of Bosnia and Herzegovina, where the Vienna Convention on the Law of Treaties of 1969 would be applicable in the event of any dispute as to its application, and the interpretation of certain provisions thereof. In addition to this, as mentioned above, it is necessary to establish in an internationally appropriate manner the legal regime and the width of the future corridor, which will represent, inter alia, a junction between Bosnian and Herzegovinian waters and the High Seas of ​​the Adriatic.

Hence, only after the final determination of all the aforementioned, and after a thorough, concrete and legally binding determination of the legal regime of the corridor above which the permanent bridge will be built, the scientific and professional processing of the project known as the Pelješac Bridge must be approached. This should meet all the technical characteristics of bridges that have already been built over water within the international legal regime, i.e. international waterways, such as the Fatih Sultan Mehmet Bridge and the Bosporus Bridge in Istanbul that cross over the waters of the Bosporus strait which is under international legal regime, or the Oresund bridge (although most of the international maritime traffic takes place above the underwater tunnel) linking the Kingdom of Denmark and the Kingdom of Sweden and which is also located over the international waterway. This means that if the agreement between the two neighboring coastal states in this part of the Adriatic Sea could be achieved, in the sense of completing its construction and opening it for all road traffic, the bridge of these dimensions must have a certain minimum navigation height and a minimum range between the pillars, or at least the central ones, so that big ships could also sail into the Neum waters.

Bosnia and Herzegovina always somehow tends to delay consideration of certain questions. If this continues, there is a great chance that there will be no single institutional response, with the result that the position of Bosnia and Herzegovina in relation to this important international legal issue will remain very vague and indeterminate. Additionally, there is a very long internal tradition which does not encourage political cooperation, and a lack of understanding of things that are of fundamental significance to the whole country, not just to one of its constituent peoples.

However, in expectation of any kind of determination on the part of Bosnia and Herzegovina, with or without the Pelješac Bridge, the problem of the permanent “drawing” of the borderline between the two countries, both on the sea and on the land, will remain. The question of the access corridor or the connection of Bosnia-Herzegovina’s waters with the High Seas will not be sorted out alone. So, is it wise to wait for the international community or the Office of the High Representative in Bosnia and Herzegovina (if it is still here?!) to take steps to protect the international interests of this state?

This is an opportunity to see the strength of the Bosnian-Herzegovinian diplomacy which will once again demonstrate its position on the international stage. There is certainly a consistent lack of unity, resulting predominately from the less than satisfactory territorial organization, and attempts to build a state on the basis of ethnicity. This lack of unity is reflected in the impossibility of coming to clear institutional views on the part of the official state government. There may again be the emergence of a culture of conflict and non-cooperation at the Parliamentary Assembly of Bosnia and Herzegovina (which could, adopt the declaration, as a political act, with precisely defined conclusions), the Council of Ministers and the Presidency.

But if dialogue is opened, perhaps after formal disagreement through a diplomatic note to the Republic of Croatia, the latter will surely have the advantage, or at least a better negotiating position, due to its European Union membership. This fact may well be crucial (since the European Union also recognizes the interest in land consolidation of its territory, so that its members can better monitor and control their state territory, with the goal of Croatia’s entry into the Schengen area) to the success of the negotiations as a diplomatic mean of settling one international dispute, which surely here does exist, at least with respect to the territorial title. Finally, it is worth mentioning that an international dispute does not need to be specifically proclaimed, the essence is in the existence of a disagreement with respect to essential facts, or in their apparently different interpretations.

If there is an international dispute between two coastal states that share the eastern coast of the Adriatic Sea – that is not debatable – it is now best to choose the most appropriate and effective means of settling the dispute with, if possible, mutual interest as its aim. In this respect, it would be best to choose the most appropriate means for peaceful settlement of disputes from a large palette of diplomatic and legal means that are equally available to each state. Based on the foregoing, a dispute can be brought before the ICJ in The Hague, the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, or it can be “easily” settled through ad hoc arbitration, i.e. special arbitration tribunals. But for the decision, which is the only outcome of these legal proceedings, it is necessary to wait for years, since such international legal processes can be very long-lasting and, above all, extremely expensive. In any case, Bosnia and Herzegovina will surely need to find a modus operandi in solving the above-mentioned issues with its western neighbor. This could be found in the Joint Team of Bosnia and Herzegovina and the Republic of Croatia for Negotiations on the Implementation of the UN Convention on the Law of the Sea and the Delimitation at Sea or, perhaps, on a general level, in a body that will be composed on a parity basis, such as the Inter-State Diplomatic Commission for the Determination of the Border Line, which should, inter alia, settle the border dispute over the Danube River between the Republic of Serbia and the Republic of Croatia, still, so far, with little success. All this graphically demonstrates the complexity of the international law of the sea, particularly in the area of delimitation.

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European Union Could Share its Solid Economic Benefits with Moldova, Ukraine and Georgia

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European Union has, at least by territory and population, expanded as the European Council overwhelmingly decided to grant Moldova and Ukraine, with the possibility of Georgia, candidates’ status to join the bloc. Current, the European Union consists of 27 members and has an estimated total population of about 447 million. Moldova, Ukraine and Georgia, all former Soviet republics, will together add approximately 50.8 million to the current population of the European Union.

As former Soviet republics, the three attained their political independence and within the international laws, must be considered with respect based on the principles of their territorial integrity and national sovereignty. While the granting them their new status after official requests from them, it has indeed sparked debates especially in the Russian Federation. 

European Union leaders have formally agreed to grant candidate status to Ukraine, as well as Moldova, although the two former Soviet republics face a long path before joining the bloc. Ukraine applied to join the bloc just days after the Russian invasion on 24 February, and the process from application to candidacy has gone through at record speed.

Undoubtedly the new status has opened wide, most possibly, better doors and a platform to spring up with economic development through integration into European Union. President of the European Council, Charles Michel, noted: “it is a historic moment, today marks a crucial step on your path towards the European Union. Our future is together.”

The official congratulated the leaders of Ukraine and Moldova. Regarding Georgia, the European Council “decided to recognize the European perspective of Georgia and is ready to grant candidate status once the outstanding priorities are addressed,” Michel said. “Congratulations to the Georgian people,” he said. “A historic moment in EU-Georgia relations: Georgia’s future lies within the EU.”

The European Commission on June 17 recommended that the summit grant a candidate status to Ukraine and Moldova. It is a “symbol of hope” to support the Ukrainians while the country had a long way to go before actual accession. A few days later, Speaker of Moldova Parliament, Igor Grosu, announced that Moldova ready to join new sanctions, mostly in finance and banking, against Russia.

“We will show solidarity with the EU, as our status and European aspirations oblige us. Of course, we will join [any new sanctions] meant to stop the military operation. We are seeking to contribute to this goal by any diplomatic means,” Grosu said following a decision by the EU.

Moldova’s Deputy Prime Minister and Minister of Foreign Affairs, Nicu Popescu earlier said the East European nation could not fully join anti-Russian sanctions due to its weak economy. European Union candidate status now provides Moldova with access to world’s most developed market. It offers similar new economic opportunities to bothe Ukraine and Georgia.

In one of her warm-hearted illuminating speeches at a media briefing, President Maia Sandu emphasized: “Candidate country status gives us a clear direction of our development, support on this path, and most importantly, hope. We are a small and vulnerable country, which would feel more secure when it becomes part of the European family, in which we could count on support from all members and institutions. Belonging to the EU also means access to the richest and the most developed market in the world.” 

Moldova, however, expects more support from the European Union to improve the wellbeing of its people and provide preconditions for developing the business environment. “The situation will not change overnight after candidate status has been granted, as a lot of hard work is still ahead,” Sandu said, attributing the current hardships in Moldova to the conflict in Ukraine that began late February.

Ukraine’s President Volodymyr Zelensky hailed the news as “a unique and historic moment”, adding “Ukraine’s future is within the EU” while the French President Emmanuel Macron said that the decision by EU leaders sent a “very strong signal” to Russia that Europeans support Ukraine’s pro-Western aspirations.

At least, they have joined the ‘European family’ that offers practical warmth for sustainable development. Ukraine has already signed an agreement with the European Union on joining its LIFE Program, an international funding instrument for the environment and climate action, whose budget on environment protection projects for 2021-2027 amounts to €5.43 billion, Ukrainian media reported with reference to the Environment Protection and Natural Resources Ministry.

Ukrainian Environment Protection Minister Ruslan Strilets and European Commissioner for Environment, Oceans, and Fisheries Virginijus Sinkevicius signed the agreement.The ministry has over 15 concrete proposals to be transformed into relevant projects to be presented for consideration under LIFE Program.

“Ukraine has received great support and colossal capabilities from the European Union for restoring not only the environment but also live nature in Ukraine. This is something for which there has always been a lack of funding. LIFE is a powerful financial tool of the participating countries. This means great confidence in Ukraine,” Strilets said. “This should help us develop more new projects which local businesses could be engaged with. Therefore, we’ve made a very important step today.”

In the near future Moldova, Ukraine and Georgia have the possibility to access the benefits from the Global Gateway, a new European strategy directed at boosting smart, clean and secure links in digital, energy and transport sectors and to strengthen health, education and research systems across the world.

It is in line with the commitment of the G-7 leaders from June 2021 to launch a values-driven, high-standard and transparent infrastructure partnership to meet global infrastructure development needs. The Global Gateway is also fully aligned with the UN’s Agenda 2030 and its Sustainable Development Goals, as well as the Paris Agreement.

In addition, late June the he Group of Seven economic powers – the U.S., Germany, France, the U.K., Italy, Canada and Japan – made some progress in bringing their counterparts from their five guest countries closer to Western views on sanctions against Russia. The G-7 is committing  themselves to support the new members especially Ukraine. 

Ahead of his trip, Biden authorized another US$450 million in weaponry to be sent to Ukraine, bringing the total U.S. commitment to US$6.1 billion since the start of the war. Offering a concrete template, the G-7 combined are aiming to invest US$600 billion in public and private capital for infrastructure projects over the next five years, with US$200 billion of that total coming from the United States.

According to European lawmakers interviewed by local Russian media Izvestia, this step has broad support from the EU. Meanwhile, Russia views the move ambiguously. On the one hand, it sees EU membership as tantamount to striving for NATO, on the other hand, European integration is a purely economic issue and does not raise any concerns.

“We’ll see, we’ll analyze the consequences,” former Deputy Foreign Minister Grigory Karasin told Izvestia. “The context is important; it is not as harmless as it might have seemed three years ago. Decisions are being made amid a sanctions offensive and against everything Russian,” he added.

That being said, the European Union noted that obtaining candidate status is only the first step towards membership. Engin Eroglu, a member of the Committee on Foreign Affairs in the European Parliament, in an interview with Izvestia said that the process of gaining membership to the EU does not mean automatic entry, but it means that the country has started pro-European processes and reforms, which are partially financed by Brussels.

The granting of candidate status to Ukraine and Moldova has angered other countries that have been striving to join the European Union for several years now. For example, the European Commission has so far denied this status to Georgia, the newspaper writes.

“Tbilisi, to put it mildly, was not happy about the refusal, but this will not be a reason for any deterioration in relations between the European Union and Georgia,” Head of the Department of Integration Studies at Moscow State University of International Relations (MGIMO) Nikolay Kaveshnikov told Izvestia.

Russia consistently expresses fierce opposition to this European membership over the past several years. President Vladimir Putin had declared Ukraine to be part of Moscow’s sphere and insisted he was acting due to attempts to bring the country into NATO, the Western alliance that comes with security guarantees.

Granting Ukraine and Moldova candidate status to join the European Union looks like nothing more than a scam by the West, according to Russian Foreign Ministry Spokeswoman Maria Zakharova. “Scam is such a wonderful word, seeing that the numerous decisions taken by the West are more like combination of a destructive, provocative nature, rather than well-thought-out steps,” the diplomat said, speaking to the Sputnik Radio.

“I think that’s certainly their case,” she added, “Given these maneuvers, these zigzags that we now are witnessing from the West with regards to Moldova, Ukraine, and Georgia, it is no longer necessary to prove anything in terms of market conditions. There is a direct link between economics and politics. And this is exactly what they have always stood against.” She described the actions by the European Union as infringement of Russia’s territorial integrity, and as encroachment on former Soviet space and territory.

On the distinctive opposite side, Russia sees no risks for itself in the fact that Ukraine and Moldova have been granted EU candidate status, Russian Foreign Minister Sergey Lavrov said at a press conference following talks with his Azerbaijani counterpart Jeyhun Bayramov on June 24 in Baku.

“Our position has always been that the European Union is not a political bloc, unlike NATO. The development of its relations with any countries that wish to do so does not create any threats and risks for us,” Lavrov said in reply to a media question. “Of course, we will realistically consider the European Union’s behavior and monitor the real steps it takes and how the candidate countries act: whether they comply with these requirements or still try to show their independence.”

These new European Union members have some strategic significance. Moldova is a landlocked country in Eastern Europe. It shares borders with Romania to the west and Ukraine to the north. Ukraine, with a coastline along the Black Sea and the Sea of Azov to the south and southeast, respectively could be used for economic benefits by the European Union.

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EU-Australia Relations: Strategic Security Cooperation

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Over the last decade, security cooperation between Australia and the EU has grown. Increasing security and defence cooperation with governments outside the EU is something that the EU has looked into. Third-country participation in the “Common Security and Defence Policy” CSDP civilian and military crisis management missions and operations, as well as the exchange of sensitive information, are all examples of this.

Australia participates in CSDP missions and exchanges classified information with the EU. This emphasis on ties with other countries is a key aspect of EU Global Strategy, which asks its allies to assist promote the rule-based global order. “External partnerships” must be restructured and the EU must “engage with key partners, likeminded countries, and regional groupings” in order to share this responsibility.

Australia stated that it would work with “like-minded” friends like the European Union to address global concerns. The EU’s security mandate relies heavily on crisis management. For the EU to be seen and effective in managing crises, it must be able to draw in non-EU countries and establish links with them. Third-country participation in CSDP missions and the signing of Framework Participation Agreements on crisis management show how actors outside the EU regard the EU as a crisis management actor and validate the EU’s crisis management function.

The EU’s external measures to safeguard freedom, democracy, equality, the rule of law, and human rights must have this external validation if they are to gain “credibility and normative significance.” To “strengthen its own ability to bear responsibility and share the cost with security and defence partners,” the EU needs the support of third countries. European Union “strategic autonomy” refers to the EU’s ability to act and collaborate with international and regional partners but also working independently when necessary, according to the EU’s Security and Defence Implementation Plan, published in November 2016. EU credibility is bolstered as a result.

Ad hoc agreements, which took a long time to draft, are now the preferred method of enabling participation, instead of the time-consuming ad hoc agreements that were previously used. Australian Foreign Minister Julie Bishop announced the beginning of FPA negotiations with EU counterparts, Catherine Ashton, saying that “North Africa & Middle East have highlighted the value in Australia & EU cooperating closely to react to international crises” at the time of the announcement.

The EU and Australia, according to the FPA, share a common understanding of the threats they face and the objectives they should focus on. Australian participation in two CSDP missions has been made possible by this convergence. Some argue whether or not the European Union and Australia see each other as strategic or priority partners in the fight against global and interconnected security threats, as well as whether or not their geographical domains of interests and aims align.

In two CSDP missions, Australia’s involvement has been capped (and duration as with EUCAP Nestor). CSDP military operations are not permitted. EU crisis management will take a new step forward with participation by Australia in a CSDP military mission. The EU CSDP’s military efforts have primarily focused on developing military capabilities or deploying naval forces. As long as EU member states are unwilling to engage in large-scale military operations, this pattern will continue.

A naval operation in the Strait of Hormuz has been proposed recently by the EU as a means of protecting freedom of navigation and calming tensions between Iran and the United States. We could see Australia participating in an EU military operation as this occurs. As seen by its August 2019 decision to join the US-led mission in the Strait of Hormuz, Australia has a strategic interest in maintaining marine flow.

The EU-Australia security partnership is strengthened because to FPA. European Union and Australian cooperation will have a solid foundation thanks to the FPA, which recognizes common interests in international peace and security. Both EUCAP Nestor and EUAM Iraq have involved Australia in crisis management, but more effort is required. Both parties must agree that Australia will be invited to more than just these two missions. The EU’s CSDP missions are strengthened by its partners, who help the EU to be a responsible global actor. However, it also makes it necessary for Australia and the EU to work together more closely to identify common interests on a variety of issues.

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Finnish Plans for an Arctic Railway  –  Geopolitics Are Intervening

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Authors: Juho Kähkönen and Soili Nystén-Haarala*

NATO Applicant Finland is an Arctic Country with No Access to the Arctic Ocean.

Finland, with a land border with Norway, Sweden, and Russia, is sometimes described as an island because it is located on the northern coast of the Gulf of Finland and the eastern coast of the Gulf of Bothnia of the Baltic Sea. The 832-mile border with Russia has gained plenty of attention in the present geopolitical situation. The lifeline from the Baltic Sea to the North Sea goes through the narrow Danish Straits. Finnish cargo is mainly transported to and from the ports of the Baltic Sea. Before the war on Ukraine, Finnish trains ran to the east up to China through Russia.

Access to the Arctic Ocean is limited to the narrow roads through Norway, which are not qualified for the Trans-European Transport Network (TEN-T), the major European transport corridors. The closest European TEN-T corridor turns west to Sweden at the bottom of the Gulf of Bothnia. Knowing this, it is no wonder that dreams of access to the Arctic Ocean emerge every now and then.

Map of existing infrastructure

Most recently, the idea was embraced  when the government of Juha Sipilä, with Anne Berner as the Minister of Transportation and Communications, was in power (May 2015 – June 2019). Anne Berner negotiated the future of transportation infrastructure and the Arctic Ocean railway with her Nordic colleagues in Norway and Sweden. In the early phases, the regional politicians in Finnish Lapland mostly either supported or adopted a positively curious attitude towards the proposed railway.

Nevertheless, the plan was later buried with both Norwegian and Finnish reports for their respective ministries in 2018. The reports found the plan lacked feasibility because of excessive costs. However, the Regional Council of Lapland still wanted to maintain the option for a railway in their regional plan. This attempt finally failed in 2021, and the plan was officially buried also in Lapland. The discussion on the plan was strongly polarized between the supporters and the opponents.

Vision of Arctic Railway

The way the prospects of the plan were presented reflected the ideas of economic connectivity and interdependence between Europe, Russia, and China – dreams, which after the Russian brutal attack on Ukraine turned out to be built on false perceptions of an economically dependent Russian Bear and an everlasting peace in Europe. Even after the Russian occupation of Crimea in 2014, the future was full of expectations for economic prosperity; the opening of the Northeast Passage shortening the distance between Rotterdam and Shanghai by 26 percent and between Rotterdam and Yokohama by 37 percent. In addition to the railway, there is a plan to build a tunnel from Helsinki to Tallinn under the seabed. The Arctic railway, together with the tunnel, would connect the Asian and European markets through Finland and the melting Northeast Passage.

Chinese funding was sought for both of these mega infrastructure investments in railroad transportation. Chinese investments in Finland, however, have almost all failed, either because of financial difficulties of the Chinese investors or reservations of the Finnish Military and the Ministry of Defense. For some reason, both Chinese and Russian investments in land property often happened to target areas of strategic military importance. Additionally, one of the five options for the Arctic Ocean railway presented in the reports from 2018 was building a connection across the border to the Murman railway connecting Murmansk and St. Petersburg. The connection was not considered dangerous because rails are easy to dismantle, and cyberwar is a more likely prospect than traditional land warfare. However, Russia’s attack on Ukraine has shown that land warfare in Europe has not disappeared, and Russian military forces might arrogantly try to invade the country across the whole 832-mile-long border.

However, the actual opening of the Northeast Passage is, under any circumstances, still far in the future. It is not yet possible to navigate those dangerous waters without the expensive aid of Russian ice-breakers. Furthermore, European politicians turned a blind eye to the growing geopolitical tensions,  for instance, the increasing threat of nuclear weapons in the Kola Peninsula next to Finnish and Norwegian borders. Nevertheless, it is common knowledge that the Arctic and its raw materials are of highly strategic military and economic importance for Russia. Even after the occupation of Crimea in 2014, Arctic cooperation was in the Arctic Council maintained as “the separate island of cooperation” while political tensions between superpowers increased. The Russian attack on Ukraine underlines the political risks associated with the transportation routes through the Russian economic zone. It is no wonder Finland is now applying for NATO membership, and developing the eastern transportation connection is forgotten.

National Interests Suppress Indigenous Rights

The Arctic Railway plan met strong resistance from the Sámi people, the only Indigenous people in Europe. As the supreme political body of the Sámi in Finland, the Sámi Parliament saw the railway as a threat to their culture and the reindeer herding in the heart of their culture. Oddly enough, the resistance and support from such allies as the Greenpeace seemed to come as a surprise to the supporters of the railway in Helsinki.

The region itself has a long history of ignoring the Sámi and seeing them as troublemakers resisting plans to develop the region. The Sámi are a small nation (77 00 – 103 00 depending on calculations) living in the northern areas of Norway, Sweden, Finland, and the Kola Peninsula in Russia. In Finland there are slightly more than 10 000 registered Sámi who vote in the elections of the Sámi Parliament.

Reindeer herding is a livelihood that requires much space as pastureland; reindeer can move freely in forests, which mainly belong to the State in the Finnish Lapland. Reindeers migrate and live with lichen, plants, and mushrooms. These half-tame animals are the property of reindeer herders, which as a profession is not ethnicity-based in Finland. Reindeer herding increasingly competes with other industries and infrastructure building. Reindeer herding is not just a traditional livelihood but also an industry in the market economy. Although the Sámi lives in a modern way in mixed communities, they still have strong kinship ties and an awareness of their own culture, which is distinct from the mainstream culture. The railway building option (Rovaniemi – Kirkenes) the Finnish Government preferred would have crossed the area of several Sámi reindeer herding cooperatives and disconnected the reindeer migration routes. It would have weakened the profitability of reindeer herding, a livelihood that has kept the remote areas of Lapland inhabited.

Throughout history, the Sámi have experienced racism and contempt from the main population. Their languages were not taught at schools before the 1970s. Just like Indigenous children in North America, they were sent to boarding schools, far away from home, to study in Finnish. Their voices were not heard, and their rights were not respected, for example, when the rivers in Lapland were harnessed for waterpower and forests were cut because of national interest after the World War II. Bad treatment has left scars and a considerable mistrust of the state power. The Sámi have fought for their rights in Norway, Sweden, and Finland, however, and have managed to make the state power recognize their rights.

In the new Finnish Constitution of 1994, the Sámi were granted cultural autonomy. A special Homeland Area was established in Upper Lapland. Within this area, the Sámi have the right to education in their own languages and the right to deal with authorities and in courts in their languages. They also have a Sámi Parliament, the representative self-government body, which plans and implements the cultural self-government guaranteed to the Sámi as an Indigenous people. The Sámi Parliament must be consulted when any project in the Homeland might affect their culture.

Reindeer herding and, for example, fishing are recognized as a part of Sámi culture. The duty to negotiation was drafted based on the Free, Prior, and Informed Consent (FPIC) principle of the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169). However, the Sámi Parliament and the Finnish government interpret the duty to consult differently way. The Sámi interpret the FPIC as a duty to ask for permission from the Indigenous population. The authorities, who should consult the Sámi, see it as a duty to consult and strive for a jointly agreed decision. If a joint agreement cannot be reached, the authorities can continue with the project. An even bigger problem is that authorities do not always remember to consult the Sámi. The existence of this duty is still relatively unknown, and if we add the earlier ways of conduct to ignorance, it is no wonder that the Sámi are suspicious of the Finnish state.

The Arctic railway plan is a typical example of conflicted relations between the Sámi and Finnish authorities. The sudden appearance of the plan astonished the Sámi and caused anxiety among reindeer herders about the future of their business and livelihood. The state authorities were also surprised by the strong Sámi reactions and emphasized that there was no project yet, only a discussion. The Sámi brought their position to international awareness through various media channels, while the supporters of the railway in Lapland boosted the idea to the EU and in Asia. The plan highlighted a conflict in the four municipalities of the Sámi Homeland Area, where the Sámi, with one exception, form only a minority of the population. The burial of the plan at the governmental level was mainly due to economic reasons, but abolishing the railway from the long-term regional plan can be seen as the victory of the Sámi and reindeer herding.

Is the Plan Actually Buried?

Following the Russian war on Ukraine, the multiple times buried attempt to build a railway from Finland to Norway has gained interest again. Member of Parliament from Lapland Mikko Kärnä brought the Arctic Railway back to the discussion by stressing that Finland would face significant challenges if transportation on the Baltic Sea were disturbed. This viewpoint reflects the understanding of Finland as an “island.” In practice, 80 percent of Finnish foreign trade goes through the Baltic Sea and as the transportation connection in northern Finland is poor, a railway to Norway would strengthen Finnish security of supply.

Soon after this comment, the Parliamentarian Committee on Transportation and Communication organized a visit to northernmost Finland, where the Arctic railway had been planned. The committee chair, MP Suna Kymäläinen explained the reason for the visit telling that Finland had to prepare for the scenario that traffic on the Baltic Sea would decline and analyzed how the export and import would be organized in such a situation. Currently, the roads connecting Finland to Norway are narrow and in poor condition.

The ongoing war reveals how the planned Arctic Railway is not tied only to the melting Arctic Ocean and shipping through the Northeast Passage. Instead, northern connections show how Finland is not an island but how the infrastructure development has focused on southern Finland around the capital for decades. The situation should not surprise anyone in Helsinki, as the authorities and politicians from the north have underlined for decades how weak the infrastructure in the north is and criticized how resources have been mainly used to develop southern infrastructure.

There is only one short rail track on the Finnish side still to be electrified, but the Arctic Ore Railway as well as the port of Narvik already operate at the limit of their capacity. The fact that the Swedish state mining company LKAB is already talking about strengthening the railway might indicate that the state is on board. Renovating the overloaded railway is, however, going to be a long and expensive project. Sweden has gradually built and electrified the railway from Southern Sweden to the Finnish border. The main driver of this project was the needs of the highly developed industry in northern Sweden – at least up till the port of Luleå.

The connection from Luleå to the Finnish border, however, could also have connected Sweden to the Russian market across Finland. Whereas for Finland, this track through Sweden to Narvik harbor, suddenly turned out to be a strategic corridor to the west in case the Baltic Sea corridor would close. As Sweden applied for NATO membership together with Finland, northern connections have a robust defense interest. In case of war, the Norwegian port of Narvik would be a priority to supply resources to the European Arctic. In Norway, a long-time NATO member country, the transport connections to Finland have re-emerged in the defense debate. The new geopolitical reality reveals how the northern connections would be essential for the national security of supply. However, we should not forget the rights of the Sámi people.

Geopolitics Amplify the Clash between National Interest and Sámi Rights

The discussion about the Arctic Railway reflects the polarized relationship between the Sámi and the Finnish authorities. The Sámi feel that they are never safe and that this time, their rights might be sacrificed at the shrine of national safety. Despite the new concerns about the security of supply, the state authorities now seem to take smaller, more realistic steps to improve transportation connections. A connection through the Swedish Ore Railway to Narvik in Norway is now a realistic option.

Perhaps a quicker way to improve access to the Arctic Ocean is to renovate national road 21 (E8) from Tornio to Tromsø harbor in Norway along the Swedish border. The demands to invest in the road, which is in a dangerously poor condition, had not been noticed in Helsinki before the Russian attack on Ukraine. Strengthening the existing infrastructure to the Arctic Ocean is supported in northern Finland. Improving existing roads and railways does not considerably increase the damage to reindeer herding either. The increased needs for security of supply, however, indicate that the rights of the Sámi are not the first priority in national transportation development. The Arctic Railway across the Sámi Homeland is on the agenda again. Strengthening democracy and taking the minorities’ differing worldviews seriously would be a more civilized way of coexisting in the western world and something the Nordic countries could be expected to do better.

*Soili Nystén-Haarala, Professor of Commercial Law, Dean, Faculty of Law, University of Lapland.

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