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Counter-Memorial Submitted by the Government of the Kingdom of Denmark

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Counter-Memorial Submitted by the Government of the Kingdom of Denmark iNTERNATIONAL COURT OF JUSTICE PASSAGE THROUGH THE GREAT BELT (FINLAND v. DENMARK) COUNTER-MEMORIAL SUBMITTED BY THE GOVERNMENT OF THE KINGDOM OF DENMARK VOLUME 1 MAY 1992 VOLUME 1 TABLE OF CONTENTS Page INTRODUCTION ........................... 3 PART 1. THE FACTS .......................... 11 CHAPTER 1. THE GEOGRAPHY OF DENMARK AND THE DANISH STRAITS ..... 13 CHAPTER II . THE DANISH PLANS FOR A FIXED LINK ACROSS THE GREAT BELT . 16 A . The Early Plans ....................... 16 1 . Introduction .......................... 16 2 . The Proposals made in the 1930s ........... 16 B . The Preparatory Work 1948 . 1972 ......... 17 I . The Great Belt Bridge Commission ......... 17 2 . The 1961 Act ......................... 19 3 . The Working Committee ................. 20 4 . The Technical Committee ................ 22 C . The Initial Project ..................... 23 I . The 1973 Act on the Constmction of a Bridge across the Great Belt ............. 23 2 . Siatshroen Store Bcelt ................... 24 3 . The Circular Note of 12 May 1977 ......... 26 4 . The Progress of the Initial Project .......... 28 Page 5 . Debates in the Danish Parliament on the Great Belt Project 1977 . 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 1986 Political Agreement ............. 37 2 . The 1987 Act ......................... 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 IMPORTANCE OF THE GREAT BELT PROJECT ................ 51 A . NationalConsiderations ................. 51 B . International Considerations ............... 59 CHAPTER IV . THE PASSAGE OF SHIPS THROUGH THE GREAT BELT AFTER CONSTRUCTION OF THE EAST BRIDGE ............. 63 A . The Clearance of the East Bridge ........... 63 B. The Effect of the East Bridge on the Passage of Existing Vessels ............... 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 Units .......................... 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'sMODUS through the Sound .................... 112 The Fixed Link across the Sound .......... 120 Page CHAPTER VII. MODIFICATION OF SEMI- SUBMERSIBLE AND JACK-UP DRILLING UNITS ............. 123 A. Introduction ......................... 123 B. Removal of Thmsters .................. 127 C. Removal of the Top Part of the Drilling Demck ................... 130 D. Reduction of the Leg Length of a Jack-Up Rig ..................... 134 E. MODU Building Yards Located behind Fixed Bridges or other Permanent Height Constraints ............ 137 CHAPTER VIII. THE PASSAGE OF CRANE VESSELS THROUGH THE GREAT BELT AND THE SOUND ................. 140 CHAPTER IX. THE EFFECT OF THE GREAT BELT PROJECT ON THE BUILDING OF OFFSHORE UNITS IN FINLAND AND ON OFFSHORE OIL AND GAS ACTIVITIES IN THE BALTIC SEA 146 A. Effects on the Building of Offshore Units ....................... 146 B. The Effects on Offshore Oil and Gas Activities .................... 15 1 CHAPTER X. THE GREAT BELT PROJECT AND OTHER BRIDGES AND TUNNELS IN THE WORLD .............. 153 A. The Similarity between the Great Belt Bridge and other Bridges across lntemational Straits ................... 153 B . Various Types of International Watenvays ......................... 156 C . Bridges across International Straits ......... 157 1. The Bridges across the Little Belt ......... 157 2 . The Bridges across the Bosphoms Strait ......................... 158 3 . The Proposed Bridge across the 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 Entrances to Major Ports Served by International Shipping and across Waterways Used for International Navigation .............. 164 I . Bridges across Entrances to 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's Order 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 CONSIDERATIONS PRIOR TO THE PRESENT DISPUTE ..... CHAPTER III . SHIPS IN INTERNATIONAL LAW A . MODUS Compared to Ships ........... B . Drilling Platfoms ................... C . Ships with Special Characteristics ....... D . Applicable Conventions .............. E . Future Ships ...................... CHAPTER IV . CURRENT LEGAL CONSIDERATIONS ............ A . Treaty Law and Customary International Law ......................... 1 . The 1857 Treaties for the Redemption of the Sound Dues .................... 2 . The 1958 Geneva 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 Legal Arguments ............ 262 PART III . SUBMISSIONS ....................... 267 List of Maps List of Figures List of Annexes vii VOLUME 1 VOLUME 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 1992 for 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 customary rules 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 al1 tribunals, 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 an ad hoc balance but to apply the law". However, the function of law is not to grant
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