The risks of limiting sea and air transit are significantly lower than the corresponding risks regarding road and rail communications. In this regard, special attention should be paid to the development of maritime infrastructure that ensures uninterrupted freight and passenger traffic, Vadim Voinikov writes.
Introduction
The problem of transport connectivity of the Baltic region has several dimensions. For the Russian Federation, two issues are of particular relevance: transport links between the Kaliningrad region and the rest of Russia, and the problem of shipping in the Baltic Sea, taking into account the unfriendly policies of other states along its coast.
In this expert commentary, the main focus tends to be on the issue of transport connectivity with the Kaliningrad region.
After the collapse of the Soviet Union, the problem of transport links became especially relevant. First of all, this is due to the fact that the Kaliningrad region was “cut off” from the rest of Russia, as it didn’t share administrative borders with other Russian regions.
Thus, history repeated itself with the same territory: during the interwar period, East Prussia was geographically separated from the rest of Germany.
In the 1990s, transit between the Kaliningrad region and the rest of Russia was carried out along traditional routes, by rail and road. However, in the early 2000s, in connection with Lithuania’s preparations to join the EU, this situation changed significantly. As a result, it became necessary to develop a transit mechanism at the EU level. These agreements were reached in November 2002, which resulted in a joint statement by the Russian Federation and the EU on transit between the Kaliningrad region and the rest of Russia.
This statement does not formally have legal force, i.e. it belongs to the category of so-called “soft law”, however, it records the main agreements between Russia and the EU on how Kaliningrad transit will be carried out.
Following the start of the Special military operation in Ukraine, as well as the introduction of large-scale restrictive measures and other unfriendly steps towards Russia by the EU and its member states, the geopolitical situation around the Kaliningrad region has changed significantly. In this regard, ensuring the sustainability of the Kaliningrad region’s ties with the main part of Russia and increasing the level of self-sufficiency of the region have become high-priority tasks, requiring increased attention.
To date, some of the agreements reached between Russia and the EU regarding transport accessibility have been violated through the introduction of unilateral restrictive measures by the EU and tightening of law enforcement practices by Lithuania. Nevertheless, the transit continues to operate, taking into account current geopolitical realities, as well as changes in the legal framework.
Land cargo transit
Land passenger and cargo transit between the Kaliningrad region and the main part of Russia is carried out, among other things, through the territory of Lithuania. For land transit, road and rail transport are used.
The legal basis for cargo transit is the Partnership and Cooperation Agreement between the Russian Federation and the EU and the EU Member States (Article 12), and the provisions of GATT 1947 (Article V), of which Russia, all EU countries, and the Union itself are parties. In addition, certain issues were regulated by the Joint Statement of Russia and the EU in 2002.
After the start of the Special military operation in Ukraine, the EU significantly strengthened its restrictive measures, which also affected the issues affecting cargo transit. In particular, under Council Regulation No. 833/2014, a ban was imposed on the purchase, import and transfer of a fairly large list of goods originating from Russia. Moreover, under Article 3-l of this regulation (as amended by Regulation No. 2022/879 June 3, 2022), a ban was imposed on the entry into the EU of trucks belonging to Russian persons. At the same time, the regulation established an exception to this ban in relation to Kaliningrad transit, provided that the transportation of such goods is not prohibited by this regulation.
The authorities of Lithuania considered that the said provisions prohibit any transit of the so-called “sanctioned” goods (From a legal point of view, the use of the term “sanctions” in relation to the EU's restrictive measures against the Russian Federation is incorrect, since under current international law, neither the EU, nor the US, nor other countries have the right to impose sanctions against Russia. At present, no international sanctions are in force against Russia. The correct term for qualifying the said measures is unilateral restrictive measures. However, in this paper, for simplification, the term “sanctions” will sometimes be used.).
Later, the European Commission prepared clarifications regarding the implementation of land transit. According to the Commission, current EU “sanctions” provide for different transit regimes for goods by road and rail. According to these clarifications, the regime of restrictive measures does not prevent the transit of “restricted” goods: non-military, transported by rail, while the quantitative indicators of such transit should not exceed the indicators recorded in previous periods of time. The transit of “sanctioned” goods by road is prohibited.
It should be noted that the Commission’s clarification was not formalised as an official document; however, the procedure is applied by the relevant authorities.
In addition to the restrictive measures imposed by the EU, land transit is significantly affected by the unfavourable law enforcement practices of the Lithuanian authorities, who have regularly tightened the customs clearance procedure, artificially reduced the capacity of the only operating automobile checkpoint, and also committed other unpredictable actions.
Thus, land cargo transit between the Kaliningrad region and the rest of Russia is subject to the norms and law enforcement practices of the neighbouring state, which contradict the requirements of current international law.
Land passenger transit
Passenger transit through the territory of Lithuania is carried out in accordance with EU law, which was adopted on the basis of the agreements between Russia and the EU which were reached in 2022.
The legal basis for this transit is the Council Regulation on a Facilitated Transit Document (Council Regulation (EC) No 693/2003 of April 14, 2003 establishing a specific Facilitated Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual OJ L 99, 17.4.2003, p. 8–14.) and the Council Regulation as a common format for FTD, and FTD for rail transit.
According to the aforementioned acts, the transit of Russian citizens is carried out in a simplified manner on the basis of the so-called facilitated transit documents (FTD). There are two types of such documents: FTD, which gives the right to make multiple transit by any means of land transport and FTD RR, which is used for transit by rail on direct passenger trains.
To obtain FTD and FTD RR, three conditions must be met:
1) the initial and final points of transit through the territory of the Schengen area must be parts of the same state;
2) transit through the Schengen area is the only land route by which one can travel from one territory of a state to another;
3) only persons who are citizens of the state between whose parts the transit takes place, have the right to receive a FTD.
Unlike cargo transit, the increased “sanctions” pressure on the Russian Federation has not significantly affected the passenger transit regime, although the Lithuanian authorities, in violation of EU law, have introduced additional conditions for receiving a FTD for the purposes of transit by road. In particular, to receive a FTD, the applicant must prove that there are significant reasons for transit by road (having a job, close relatives, real estate, etc.). In addition, the Lithuanian authorities have unreasonably limited the number of passengers who can travel by train.
The implementation of passenger transit was also affected by discriminatory rules introduced by the Lithuanian authorities and concerning the ban on issuing visas, entering the country through external borders , as well as the use of cars with Russian registration plates. Formally, these rules do not apply to cases of transit from the Kaliningrad region, however, they have significantly limited the possibilities for transit through Lithuania.
It should also be noted that while the EU legal norms regarding simplified passenger transit are in force, Lithuania is obliged to comply with them, but nothing obliges the state to ensure the functioning of the cross-border railway and road infrastructure. The existing norms of international law guaranteeing freedom of transit by land have proven to be non-functional in the current foreign policy situation. At the same time, there is no effective mechanism to ensure their implementation. For this reason, land transit between the Kaliningrad Region and the rest of Russia is at risk and its further functioning largely depends on political decisions taken at the EU or Lithuanian level. In this situation, the main role in ensuring the transport connectivity of Kaliningrad Region belongs to air and sea transport.
Air traffic
Due to the peculiarities of the geographical location, air traffic between the Kaliningrad region and the rest of Russia has typically passed through the airspace of other countries (Lithuania, Latvia, Estonia and Belarus) or over neutral waters.
The legal basis for international air traffic is the Chicago Convention on International Civil Aviation of 1944, as well as relevant bilateral agreements.
In accordance with EU Council Regulation No. 2022/334 (Article 3), a ban on the use of EU airspace was established in 2022. This measure has significantly affected air traffic with Kaliningrad Region. First, international flights connecting Kaliningrad with foreign countries have been significantly reduced. Second, air transport routes have changed. Due to the ban on using EU airspace, all aircraft with Russian registration or operated by Russian persons are forced to follow a single route passing through the neutral waters of the Baltic Sea and the Gulf of Finland. This situation has led to an increase in flight time from 20-30 minutes (along the Kaliningrad-St. Petersburg route) to more than 1 hour (the Kaliningrad-Minsk route).
Such a ban contradicts current international law, since the Chicago Convention of 1944 is based on the principle of non-discrimination, i.e. any rules regarding admission to their territory and release of aircraft will be applied to the aircraft of all countries without distinction of their nationality (Article 9, 11) . On the other hand, the Chicago Convention establishes that each state has full and exclusive sovereignty over the airspace above its territory (Article 1). Thus, in this situation, the state does not have effective international legal mechanisms to force other countries to comply with the principle of non-discrimination in the field of international air transport. In this situation, until a change in EU policy is made, air traffic with Kaliningrad Region will be carried out over the neutral waters of the Baltic Sea.
Sea transit
Despite the wide range of possibilities for sea traffic, until recently, the sea-based transport links between the Kaliningrad Region and the rest of Russia were insignificant.
However, now, in the context of the ongoing confrontation, the Baltic Sea remains the only stable and reliable route connecting Kaliningrad Region with the rest of Russia.
As part of the latest NATO expansion, the political leaders of some countries have begun to talk about turning the Baltic Sea into an internal NATO lake, which would supposedly make it possible to control and limit shipping there. Of course, such an idea in no way agrees with geography, current international law, or common sense. However, after the start of the operation in Ukraine, some politicians and experts, mainly from the Baltic countries, began to actively discuss ideas aimed at limiting Russian shipping in the Baltic.
Thus, in 2023, the Estonian authorities proposed establishing a contiguous zone in the Gulf of Finland. According to Article 33 of the UN Convention on the Law of the Sea, 1982, in the contiguous zone the coastal state may exercise control necessary to prevent violations of the rules committed within its territory or territorial sea and punish violators. In other words, the Convention on the Law of the Sea does not extend the sovereignty of a coastal state to the contiguous zone, and such a state does not have the right to exercise control functions in relation to ships and vessels if they have not entered and are not going to enter the limits of its territorial sea.
Thus, even if a contiguous zone is established, which is the right of Estonia, this regime should not lead to restrictions on Russian shipping in the Gulf of Finland. Another situation is related to a possible change in the boundary of the territorial sea on the part of Finland and Estonia in the area of the entrance to the Gulf of Finland from the Baltic. Currently, international shipping in this part of the Gulf of Finland is carried out through waters that have the status of an open sea, which is the result of agreements between Finland and Estonia. If these agreements are changed and the territorial sea zone is expanded, the legal regime of this water area will change. However, this will not entail a restriction on shipping, since in this case this water area will acquire the status of a strait, where the Convention on the Law of the Sea guarantees unimpeded transit passage for ships and aircraft.
In this regard, the question arises whether the EU countries can violate the norms of international maritime law in relation to transit passage, as was done with respect to land transit.
The situations related to transit by land and by sea are fundamentally different from each other; the maritime space has a different legal regime from the territory of a state, and the rights of a coastal state in relation to the territorial waters, and especially the open sea, are limited by the rights of other countries. In addition, states have a whole set of legal, political and military means to protect the rights provided for by the Convention on the Law of the Sea. Nevertheless, the constant monitoring of political-legal and military-political risks for Russian shipping in the Baltic Sea is necessary.
Conclusion
It is quite obvious that the current confrontation between Russia and the Western countries may be long-term. In this situation, transport support between Kaliningrad Region and the rest of Russia should be built taking into account the current geopolitical situation, which has a tendency to deteriorate.
Therefore, the main attention should be paid to the development of transport routes that are independent of neighbouring states, namely sea and air. At present, air transport is used mainly for the carriage of passengers, and sea transport – for cargo. I believe that the capabilities of sea and air transport should be expanded so that such transport is equally used for the transportation of passengers and cargo.
Therefore, it is necessary to pay special attention to projects for the development of air cargo transportation, the organisation of regular sea passenger routes, and to ensure the completion of construction of the appropriate passenger terminals , the acquisition or construction of a fleet of passenger and cargo-passenger ships, the development of import substitution in the field of civil aviation, etc.
In addition, it is important to ensure the availability of cargo and passenger transportation by sea and air, which can be achieved both via subsidy measures and by the development of a competitive environment.
In other words, the necessary conditions must be created to ensure efficient, uninterrupted and accessible transport communications, which will be carried out independently of neighbouring states, and will also satisfy the needs of Russian residents and businesses, and also will correspond to the interests of the state.
