Deutsch-polnische Seegrenzen in der Oderbucht: der seevölkerrechtliche Status der sog. Nordansteuerung und des Ankerplatzes Nr. 3

The status of the so called Northern Approach to the Polish harbours of Swinoujscie and Szczecin, and roadstead no. 3 under the law of the sea has always been in dispute between Germany and Poland. It is situated between the maritime boundary of the two states in the Baltic Sea. The land boundary was first drawn after the Second World War. It was therefore initially a border between Poland and the German Democratic Republic (GDR). Poland and the GDR concluded numerous treaties establishing different maritime boundaries between them, the latest in 1989. In 1990, immediately after German reunification, Germany and Poland concluded a treaty in which they confirmed the existing border between the states, as defined by, amongst others, the 1989 treaty. A literal interpretation suggests that the parties only confirmed the 1989 treaty as far as it concerned the boundary between the GDR and Poland. That would exclude Art. 5 of the 1989 treaty. In 1994, Germany declared an exclusive economic zone (EEZ) covering the disputed area. Germany acknowledged in its declaration that »the modalities of the application of Art. 5 [of the 1989 treaty] is subject to consultations with Poland«. Shortly after this declaration, Poland extended its territorial sea to include the Northern Approach, claiming it as a roadstead under Art. 12 United Nations Convention on the Law of the Sea (UNCLOS). Under UNCLOS and the customary law of the sea, a road-stead of one coastal State is incompatible with the EEZ of another state. If the disputed area was already German EEZ it could not become a Polish roadstead. This article shows that Germany is not formally bound by Art. 5 of the 1989 treaty anymore. In so far Art. 5 only limits the right of the GDR to extend or declare maritime zones, the treaty does not constitute a boundary and could therefore not survive a succession of states as such. However, it could be a territorial regime within the meaning of Art. 12 of the Vienna Convention on the Succession of States. Besides the problem that neither Germany, the GDR or Poland are parties to that convention and the status of the convention under customary international law can be described as at best doubtful, the general rules of international law on the succession of states are superseded by the German-Polish treaty of 1990. Nevertheless, Germany has indicated on multiple occasions that it would respect Polish rights around the Northern Approach and the roadstead no. 3. This position is only compatible with the existence of a German EEZ if these Polish rights exist only vis-à-vis Poland, thus inter partes. Poland on the other hand seems to be of the opinion that the original Art. 5 continues to bind Germany with an erga omnes effect. If Art. 5 only creates obligations inter partes, Germany could have lawfully established an EEZ in the disputed area. The Polish declaration to include roadstead no. 3 in their territorial sea would have no effect. As long as the position of the parties remains unclear, the issue will not be resolved. This article provides a framework in which discussions can take place. Now it is up to Germany and Poland to overcome the dispute in a matter of neighborly cooperation and respect.