- Canals — Jurisdiction of states, territoriality principle — Sovereignty
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Factual Situation
1 The Kiel Canal (Nord-Ostsee-Kanal; ‘Canal’) is an artificial waterway which links the North Sea with the Baltic Sea. It runs from Brunsbüttel at the mouth of the Elbe river over 98,637 km to Kiel-Holtenau at the Kiel Fjord (Kieler Förde). The Canal and its approaches through the mouth of the Elbe river and the Kiel fjord are internal waters of Germany. Built from 1887 until 1895 the Canal was enlarged between 1907 and 1914 and again between 1965 and 2001. Presently it is at its surface 162 m and at the bottom 90 m wide and 11 m deep. The new locks at both entrances are 310 m long and 42 m wide. A smaller section of 20 km at its eastern end is to be enlarged between 2009 and 2014. Ships with a maximum length overall of 235 m, width of 32.50 m, and draught of 9.50 m may navigate through the Canal. The nine bridges crossing it have a clearance of 42 m. 10 passing-places allow a continuous traffic from both directions. Canal ports are at Brunsbüttel, Rendsburg, and Kiel. The Kiel Canal is the most frequented canal for international shipping in the world. In 2007, 43,378 ships (excluding leisure craft and small boats) transported 99,787,043 tons of cargo through it. 70.29% of them sailed under a foreign flag.
2 A passage through the Canal at the permissible speed of 15 km/h (or 12 km/h for ships with a draught of 8.50 m and more) takes six and a half to eight hours. The ships avoid a journey of about 520 km around the Danish Jutland peninsula. But the savings in terms of time and bunkers are reduced by canal dues and, for big ships, by fees for compulsory pilotage and special helmsmen as well as by expenses for tugboat assistance.
B. Historical Development
3 The Canal was built by the Government of the German Reich on the basis of the Gesetz betreffend die Herstellung des Nord-Ostseekanals (Law concerning the Creation of the Kiel Canal; translation by the editor) of 16 March 1886 in the Prussian province Schleswig-Holstein mainly to provide a short navigable connection between the North Sea and the Baltic Sea for the German naval fleet. From its opening in June 1895 until June 1919, the Kaiser-Wilhelm-Kanal, as it was originally called, was a national navigable waterway of the German Reich, the use of which by foreign vessels was entirely at the discretion of Germany. It was opened on the basis of domestic law by the German government for the passage by day and night of merchant ships of all nations without discrimination. Foreign warships had to obtain prior permission for their passage. During World War I the Canal remained open for ships of neutral States (Neutrality in Naval Warfare; Neutrality, Concept and General Rules).
4 The status of the Canal was internationalized by the Treaty of Peace between the Allied and Associated Powers and Germany ([signed 28 June 1919, entered into force 10 January 1920]  225 CTS 188; Versailles Peace Treaty ) which contained in Part XII Section VI Arts 380–386 ‘Clauses relating to the Kiel Canal’ and in Art. 195 Versailles Peace Treaty an obligation to defortify its approaches. Denunciation of these clauses was not provided in the Treaty. Art. 380 Versailles Peace Treaty read: ‘The Kiel Canal and its approaches shall be maintained free and open to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality.’
5 The non-discrimination related to the movement of persons or vessels. Nationals, property, and vessels of all signatory powers enjoyed treatment of perfect equality; reciprocity with regard to the right of passage was not required. This functional internationalization of the Kiel Canal related to passage through it, whilst the German sovereignty over the Canal was maintained and its administration regarding police, customs, sanitary, emigration, or immigration, and almost all other aspects remained under the jurisdiction of the German authorities (Jurisdiction of States). In March 1921, they prohibited the passage through the Canal of the SS Wimbledon flying the flag of the United Kingdom (Wimbledon, The). In the ensuing case before the Permanent Court of International Justice (PCIJ), Germany tried to justify this act with considerations of neutrality, because the ship transported munitions and artillery stores to Poland under time-charter of a French company during the Russo-Polish War. The Court held that Germany had violated Art. 380 Versailles Peace Treaty (The ‘Wimbledon’ [Government of His Britannic Majesty v German Empire]; ‘Wimbledon Case’ 33).
6 By way of a note of 14 November 1936 the German government unilaterally terminated the internationalized right of passage through the Canal and on certain rivers on German territory— Rhine river, Elbe, Danube river, and Oder (see also Danube River; Rhine River). In that note, which was transmitted through diplomatic channels to nine High Contracting Parties of the Versailles Peace Treaty and to seven neighbouring States of Germany, the government declared that it considered Germany no longer bound by the arbitrary limitation of its sovereignty over the Canal imposed on it at Versailles (at 362). Additionally it stated therein that navigation on the respective German waterways should be free for ships of all nations at peace with Germany on the condition of reciprocity; and that there should be no discrimination between German and foreign ships, including the question of navigational charges. The relevant articles of the Versailles Peace Treaty were repealed in German law, the unfettered German sovereignty over the Canal and its approaches was reinstated again, and on 15 August 1937 the requirement of prior permission for the passage of foreign warships was reintroduced.
7 As a High Contracting Party to the Versailles Peace Treaty only France filed a formal protest against the termination of the provisions on the Kiel Canal in a note of 2 December 1936; the government of the United Kingdom expressed its regret with regard to the unilateral action of Germany. Belgian and Polish expressions of regret and reservation related to all German waterways concerned, whereas notes of Czechoslovakia, the Netherlands, Romania, and Yugoslavia referred only to rivers, but not to the Kiel Canal. Several States did not react at all to the German note.
8 During World War II the idea of a complete internationalization of the Kiel Canal with a neutralized canal zone under the trusteeship of the United Nations (UN) or a similar administration under international control came up at the Tehran Conference (1943), the Moscow Conference (1944), and again at the Potsdam Conference (1945), but the Allied Powers did not reach an agreement on this. A Danish memorandum to internationalize the Canal along similar lines failed at the Conference of Deputy Ministers for Foreign Affairs in London on 31 January 1947. Finally, the status of the Kiel Canal was not on the agenda when Germany was reunified in 1990, nor when the competence of the Allied Powers with respect to Germany ended in 1991.
C. Status in International Law
1. Present State Practice
9 The Kiel Canal is open for ships of all nations at peace with Germany, but the scope of the German jurisdiction over foreign ships passing through the Canal depends upon their status. As the competent administration of the Kiel Canal, the Waterways and Shipping Directorate North at Kiel stated in a press release of 24 April 1951 that the unrestricted sovereignty over the Canal had been restored. This view was repeated in 1972, when the federal government rejected the protest of the German Democratic Republic (‘GDR’) in the Eichsfeld incident. West German officials had taken a seaman’s wife and child from on board the Eichsfeld flying the flag of the GDR, after the husband had left the ship in the Canal. The government of the GDR considered this action a clear violation of international law, without identifying, however, the rules on which it was basing its view.
10 Hence foreign merchant ships using the Kiel Canal or its approaches are subject to the jurisdiction of the competent German authorities. According to the German Traffic Regulations for Navigable Maritime Waterways (Seeschifffahrtsstraßen-Ordnung [German Traffic Regulations for Navigable Maritime Waterways] [adopted 3 May 1971, entered into force 15 May 1971]  BGBl 641) merchant ships have to announce their passage when they enter the Canal, and to observe the international and national rules and regulations concerning the safety of navigation (Maritime Safety Regulations), the protection of the marine environment, or matters of security and related matters which are applicable in internal waters of Germany (Marine Environment, International Protection). In addition, there are also some particular regulations for the navigation in the Canal concerning, inter alia, pilotage, special helmsmen, admissible speed, or the obligation to maintain an automatic identification system in operation on board during the passage. The locks are not ports. Ships in transit through the Canal are exempt from customs duties (Transit Passage).
11 The German practice concerning foreign merchant ships in the Kiel Canal was also acknowledged in judicial decisions. In 1950 the Supreme Court of Justice for the British Zone in occupied Germany held, in the case of the collision of the Norwegian ship Log and the Danish ship Aslaug, that the German note of 1936 had brought the de facto internationalization of the Canal to an end, and that this had not given rise to serious resistance of the parties to the Versailles Peace Treaty. Similarly the Schleswig Court of Appeal held, in the case against the owner of the Finnish motor vessel Ari concerning the illegal transportation of alcohol in the Canal, that the German note of 1936 had re-established the unlimited sovereignty over the waterways, because the affected States either had not protested or failed to draw any practical consequences from their protest. In a case of 1955 before the German Federal Supreme Court, the Greek national Skantzos submitted that his arrest on board a vessel under the Finnish flag during passage through the Kiel Canal had violated the international status of the Canal. But without referring to this issue, the Court stated that the accused had been on German territory when he was arrested.
12 On the other hand, in accordance with customary international law foreign warships and government ships enjoying immunity have to acquire prior permission through diplomatic channels in order to navigate through the Canal. This requirement was de facto recognized by all States. No protests were launched against this obvious deviation from Art. 380 Versailles Peace Treaty. A simplified procedure of prior notification, which has been introduced for warships flying the flag of a State party to the North Atlantic Treaty Organization (NATO), shows that NATO itself does not consider Art. 380 Versailles Peace Treaty to be applicable.
2. The Views in Scholarly Publications
13 The reasons mentioned by the German government in its note of November 1936 for the termination of the provisions of the Versailles Peace Treaty regarding the Kiel Canal were generally contested in the legal literature. After World War II, scholars of international law writing in particular about the Canal took different views on its status. As they have been discussed in detail elsewhere (Lampe 124–35, Lagoni 255–6, Böhmer 335–42), only the main lines of argument shall be mentioned here.
15 According to another view, the operation of the Versailles Peace Treaty had been suspended during World War II and thereafter the provisions on the Kiel Canal were never put into operation again. But this view neglects the possibility that Art. 380 Versailles Peace Treaty applied without a particular declaration after the war again to ships of all nations ‘at peace with Germany’. However, the practice of prior permission for the passage of warships and government ships indicates that the States obviously did not presume an instant application of the relevant provisions after the war.
16 On the other hand, the view of some German authors that the Versailles Peace Treaty had been terminated after the war because of a fundamental change of circumstances, which was not foreseen by the parties (Lampe 112), is not convincing. In general, international law provisions relating to the status of a territory are not subject to the clausula rebus sic stantibus rule.
17 Another approach has been adopted by those who consider the status of the Kiel Canal as being part of customary international law. There are different lines of reasoning for this.
18 In the Wimbledon Case the PCIJ had assimilated the Suez Canal, the Panama Canal, and the Kiel Canal as artificial waterways connecting two open seas, which have ‘been permanently dedicated to the use of the whole world’ (Wimbledon Case 28), in an obiter dictum on natural straits. Apart from the fact that an assimilation of artificial waterways with straits today would not be tenable under the modern law of the sea, the concept of a common customary law of international canals does not take sufficiently into account the differences between the Kiel Canal and the two inter-oceanic canals. The Kiel Canal was built by a State for military purposes, it was not neutralized, the passage through it has temporarily been internationalized by a treaty, and it is only of regional relevance.
19 The PCIJ in the Wimbledon Case had also observed that the Versailles Peace Treaty had established an ‘international regime’ (ibid 23) for the Kiel Canal and that it had ‘been permanently dedicated to the use of the whole world’ (ibid 28). Consequently, various legal conceptions such as an international servitude, real rights or rights in rem, or a theory of dedication providing rights for third States were discussed with regard to this regime in the legal literature (Baxter 181–86, 306–10). But none of them was uncontested. After World War II, the Polish author Gelberg (at 43) and some others still considered its status as an objective legal regime, which provided for the legal interests of third States to navigate through the Kiel Canal and could not be terminated. However, since the States parties to the Versailles Peace Treaty and third States have acquiesced in the national status of the Canal after World War II, such a regime is today merely of historical interest (Klein 221).
20 The same author assumed also that because of the undisturbed functioning of the Canal on the basis of the internationalization for ‘15 years’, the relevant provisions of the Versailles Peace Treaty could have grown into customary law (Gelberg 44; contested by von Münch 177–9). But this view does not take into account that Germany, being the most affected State, indicated by its note of November 1936 that it would not accept such a new rule of regional customary law.
21 On the other hand, a German voice regarded the fact that the Canal has been open for merchant ships of all nations at all times, except in times of war, as a basis for a regional customary international law of transit through the Kiel Canal (Lampe 159–60). However, the existence of such a customary law of international merchant shipping in the internal waters of a State has to be doubted. States usually have good economic reasons to keep their waterways open for all merchant ships, but this does not mean that they consider themselves as being legally obliged to do so, unless they have agreed to this in a treaty.
22 Finally, a political rather than legal approach was taken by collectives of authors from the Soviet Union and the GDR, who considered the Canal’s status as unresolved or provisional, and therefore suggested the conclusion of a new treaty on the Kiel Canal. But, as mentioned, the Allied Powers did not agree on the necessity to negotiate such a treaty on the Canal when they discussed its status at international conferences during and shortly after World War II.
3. Present Status
23 In conclusion, there are various views on this topic in specific legal writings. But in the light of the States’ practice as well as from the point of view set forth here, the present status of the Kiel Canal does not give rise to serious practical or legal issues. The Canal and its approaches are today again a national waterway under German sovereignty. It has unilaterally been opened for merchant ships of all nations under the condition of reciprocity, and without discrimination between German and foreign ships. According to its status, the Canal might be closed after due notice and without discrimination. Nevertheless, Germany has an economic interest in keeping it open for international shipping. International agreements on shipping, and the relevant rules of the European Union apply on, and within, the Canal as in the case of other German waterways open for international shipping. Warships and government ships have to acquire prior permission for their passage through the Canal.
- J Maupas ‘Le Canal de Kiel’ (1937) 20 Revue de droit international 49–63.
- V Böhmert ‘Zur völkerrechtlichen Lage des Kieler Kanals,’ (1958) 3 Internationales Recht und Diplomatie 170–190.
- RR Baxter The Law of International Waterways: With Particular Regard to Interoceanic Canals (Harvard University Press Cambridge 1964).
- L Gelberg Rechtsprobleme der Ostsee (Sample Hamburg 1979).
- E Klein Statusverträge im Völkerrecht: Rechtsfragen territorialer Sonderregime (Springer Berlin 1980).
- WO Lampe Die völkerrechtliche Situation des Kieler Kanals gestern und heute (Nomos Baden-Baden 1985).
- I von Münch Internationales Seerecht: Seerechtliche Abhandlungen 1958–1982 mit einer Einführung in das Internationale Seerecht (Decker’s Heidelberg 1985).
- B Vukas ‘Kiel Canal’ in R-J Dupuy and D Vignes (eds) A Handbook on the New Law of the Sea vol 2 (Nijhoff Dordrecht 1991) 1292–93.
- A Böhmer ‘One Hundred Years: The Kiel Canal in International Law’, (1995) 38 GYIL 325–46.
- F Krüger-Sprengel ‘Die Durchfahrt ausländischer Kriegs- und Staatsschiffe’ in R Lagoni HS Seidenfus and H-J Teuteberg (eds) Nord-Ostsee-Kanal 1895–1995: Festschrift herausgegeben im Auftrag des Bundesministers für Verkehr (Wachholtz Neumünster 1995) 329–39.
- R Lagoni ‘Der Nord-Ostsee-Kanal im Staats- und Völkerrecht’ in R Lagoni HS Seidenfus and H-J Teuteberg (eds) Nord-Ostsee-Kanal 1895–1995: Festschrift herausgegeben im Auftrag des Bundesministers für Verkehr (Wachholtz Neumünster 1995) 225–76.
- Ari-Fall Oberlandesgericht Schleswig [Schleswig Higher Regional Court] (24 November 1954) (1958) 7 Jahrbuch für Internationales Recht 405.
- ‘Britische Antwortnote’ (2 December 1936) in R Lagoni HS Seidenfus and H-J Teuteberg (eds) Nord-Ostsee-Kanal 1895–1995: Festschrift (Wachholtz Neumünster 1995) 263.
- ‘Deutsche Note vom 14. November 1936’ (1936) RGBl II 361.
- ‘Französische Antwortnote’ (2 December 1936) in R Lagoni HS Seidenfus and H-J Teuteberg (eds) Nord-Ostsee-Kanal 1895–1995: Festschrift (Wachholtz Neumünster 1995) 264.
- Gerichtshof für die Britische Zone [Supreme Court of Justice for the British Zone] (1 June 1950) (1950) 4 Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Zivilsachen 194.
- Gesetz, betreffend die Herstellung des Nord-Ostseekanals [Law concerning the Creation of the Kiel Canal] (16 March 1886)  RGBl 58 (Germany).
- Skantzos Bundesgerichtshof [German Federal Supreme Court] (12 July 1955) 8 Entscheidungen des Bundesgerichtshofes in Strafsachen 59.
- The ‘Wimbledon’ (Government of His Britannic Majesty v German Empire) PCIJ Series A No 1.