Amendments, Annexations, Alternatives: Nord Stream 2’s Contemporary Status under EU and International Law
(2019) 12 (6) Journal of World Energy Law & Business 502–512
11 Pages Posted: 19 Dec 2019 Last revised: 26 Apr 2021
Date Written: November 20, 2019
Abstract
Nord Stream 2 is a highly controversial megaproject. This text shows that the political controversy surrounding Nord Stream 2 does not necessarily translate to legal controversy. The text does so by considering three controversially discussed European and international legal aspects of the Nord Stream 2 project. The article commences by evaluating whether and how [whether and how] the recent amendment to the European Union (EU) Directive 2009/73/EC concerning common rules for the internal market in natural gas affects the legal status of Nord Stream 2. The text concludes that Directive 2009/73/EC (as amended) makes it considerably more difficult to operate Nord Stream 2. It will also be established that legal uncertainty remains concerning the amended Directive’s compliance with European and international law, and that bilateral relations between Russia and Germany are, in any case, unaffected by changes in EU law. The article then proceeds to evaluate the argument that Germany’s involvement with Nord Stream 2, in light of Russia’s annexation of Crimea and Sevastopol, violates international law since Germany, by doing so, violates the obligation not to recognize or support annexation by an aggressor state. This argument is rejected. Even if one assumes that Russia’s annexation of Crimea and Sevastopol was unlawful, Germany’s support of Nord Stream 2 cannot be legally construed as support for Russia’s activities concerning Crimea and Sevastopol. Finally, the article considers the international legal framework conditioning the currently still outstanding permission by Denmark to lay Nord Stream 2 pipelines through the Danish territorial sea/the Danish Exclusive Economic Zone. In this regard, it is concluded that the legal scope for Denmark to reject Nord Stream 2’s application for permission to lay the pipeline through Danish waters is very limited.
Keywords: Nord Stream 2, Pipelines, Law of the Sea, Crimea, Third Energy Package
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