Book Reviews

Grenzueberschreitende Landrohrleitungen und seeverlegte Rohrleitungen im Voelkerrecht, by Wolfgang Wiese, Berlin, Duncker and Humblot, 1997, ISBN 3-428-08880-8, 446 pages

Pipelines have become a very interesting issue. First, the 1994 Energy Charter Treaty includes an absolutely novel obligation of states to facilitate and not to impede the transport of energy through pipelines (for oil and gas; electricity; coal; oil products) in Art. 7. Second, the development of post-Soviet oil and gas resources, particularly in the Southern parts of the former USSR, poses considerable political, commercial and legal challenges, among them intergovernmental agreements, delimitation of borders and resource jurisdiction (e.g. Caspian Sea) and management of US extraterritorial sanctions. A question that was never clearly settled (but see now very differently Art. 7 of the Energy Charter Treaty) is if there is some public international law-based obligation of a transit state to authorise transit of energy by way of pipeline. The here reviewed doctoral thesis, written under the supervision of Professor R. Lago at the Hamburg Institute of Maritime Law is therefore very timely.

This is a massive thesis. In good German tradition, it aims at providing an exhaustive study of available literature. Its perhaps most useful contribution is therefore that it serves as a kind of annotated bibliography on public (not commercial!) law issues with respect to pipelines, including a very helpful (and easy) chapter on the history of pipelines from times immemorial and on the technical factors of pipeline construction and utilisation. There is also a very detailed overview of existing pipelines everywhere (with, naturally, an emphasis on Europe), including an interesting survey of the Allied Forces pipeline system serving their landing in Normandy during WWII and on the - partly secret - system and relevant legal and institutional arrangements for the European NATO forces pipeline supply system. While Wiese considers these arrangements of a purely military character and of no model character, it is interesting to note that the NATO pipeline arrangements resemble some proposals made recently for an intergovernmental pipeline authority for new CIS transit pipelines (Englefield & Carver, 1995). Maps would have been much more helpful than the very repetitive narrative on various pipeline projects.

The next chapters include a detailed survey of intergovernmental pipeline agreements, with some discussion of multinational transit agreements (in particular the Barcelona Convention of 1922). The main focus of the author - given his academic lineage) - is however is regulation of offshore pipelines. After a - useful - survey of bilateral agreements (e.g. (e.g. UK/Norway etc), pages 120-373) are devoted to a very detailed and somewhat tedious exegesis of relevant provisions of mainly the 1958 Geneva Treaty on the Law of the High Seas and the by now authoritative Law of the Sea Convention. These treaties, their legislative history and numerous interpretative questions are treated in painful detail. The basic tension - which surfaces from the detailed analysis from time to time - is between the treatment of a right of laying pipelines as part of the "freedom of the seas" or a "right to transit" on one hand and the sovereignty and restructuve regulatory powers of states with jurisdiction over land and sea. In most cases, the author comes down against transit rights and in favour of the regulating nation state, a position that seems to voice his supervisor s views and is often - e.g. the restrictive interpretation of the Barcelona Convention - not or not very well argued. In spite of a massive survey of bilateral agreement, the author does not find any relevant state practice. With this traditionalist and myopic view, it is not surprising that important developments - such as Art. 7 of the Energy Charter Treaty or the third-party-access formulations in the new EC electricity directive or the (still draft) gas directive - are overlooked, though they were already available (certainly in well-known draft formulations) when the thesis was written. One would expect from a city with a traditional international commerce outlook such as Hamburg a less insular and nation-state-locked orientation to emerge. The book also deals with the issue of abandonment of pipelines - similar, though not identical to the recent controversial debate over abandonment of offshore platforms, though again the author s focus on the entrails of law libraries made him apparently blind to the discussion engendered in 1994/95 by the Brent Spar case.

The exhaustion engendered by the law of the sea is indicated by a fairly rapid conclusion dealing with pipelines in the European Union (with most surveying done on events in the 1960s and 70s, and very little on what is currently relevant, such as the 1996 Electricity Directive and the still-draft Gas Directive and the surrounding debate. There are also short references to the rise and, usually, decline of the pipeline issue in a host of international organisations (Unidroit; UN/ECE; UNIDO; OECD; Council of Europe). In tune with the evident urge for a rapid ending of a protracted endeavour we note the absence of a conclusion; the author s views need to be picked up separately in bits and pieces throughout this very long text.

The work suffers from many problems, mainly detail overload, lack of editing, the combination of a topheavy introduction contrasted with a virtually absent conclusion. Did the author feel that after 450 pages he really had nothing more to say - or did he simply stop out of - understandable - library fatigue? Doctoral theses throughout tend to suffer from the influence of "his/her master s voice". A traditionalist perspective which is in essence negative towards the requirements for freedom of global commerce necessarily leads to blindness with respect to significant developments which run counter to the in fact protectionist philosophy of this work. One will learn little about the main concepts and salient developments in the field of pipeline law. On the other hand, there is considerable merit in the painstaking survey-type of work, in particular from the perspective of the specialist user: It seems to me to be the most exhaustive and detailed research on public law issues of pipelines so far available, invaluable as a reference tool for future work in this field.

T. Wälde, CEPMLP/Dundee