Die Abgrenzung des Küstenmeeres außerhalb der Emsmündung

A German company is going to construct a wind-park in a zone between 3 and 12 nautical miles (nm) from the baselines off the mouth of the river Ems. The company concluded a contract with the Federal administration on the use of the sea-bed for this purpose and the necessary permissions for the construction of the turbines are issued. The competent administration of the Länder and the Federal administration assume that the Offshore Wind-Park Riffgat, as it is called, will be located in the German territorial sea. The Federal Republic of Germany and the Kingdom of the Netherlands have not concluded an agreement on the delimitation of the territorial sea in the mentioned zone between themselves. Contrary to the German view, administrative bodies in the Netherlands are of the opinion that a part of the wind-park will be located in the Netherlands territorial sea. Because of the lack of a boundary agreement, they claim that the Netherlands are entitled under article 15 of the Law of the Sea Convention (UNCLOS) to extend their territorial sea boundary up to an equidistance line. The envisaged line, which shall be based on the concept of dynamic baselines, would partly cut through the planned wind-park. But this claim is contested in this paper because an application of such a line is excluded pursuant to the second sentence of article 15 UNCLOS by special circumstances. An agreement on the lateral delimitation of the continental shelf in the vicinity of the coast of 1964, which divided also the zone between 3 and 12 nm between the Netherlands and Germany, created such circumstances. When the Netherlands extended their territorial sea to 12 nm in 1985, they could do this only on their side of the existing continental shelf boundary of 1964, otherwise they would have encroached upon the German continental shelf. Germany likewise extended its territorial sea in 1995 on its side of the agreed boundary. Accordingly this lateral continental shelf boundary of 1964 became de facto the boundary of the territorial sea between both countries. The existence and legal validity of this boundary does not depend on a particular boundary agreement. The de facto boundary line between the territorial seas of both countries excludes the application of an equidistance line in the said zone between 3 and 12 nm. Besides this, the paper points to certain legal deficits of the envisaged equidistance line like, inter alia, a violation of the principle that such a line has no effects upon the status of a recognized territory or continental shelf area. In conclusion the paper shows that the planned Offshore Wind-Park Riffgat as a whole will be located in the German territorial sea.