1. Context and relevance
The ferry MS Estonia sank on 28 September 1994 in the Baltic Sea, with approximately 852 casualties. The States of Estonia, Finland and Sweden signed on 23 February 1995 the “Agreement regarding the MS Estonia” which designates the wreck as a “final place of rest” and prohibits diving or salvage activities that disturb it. The site is located on Finland’s continental shelf / EEZ, thus outside the territorial sea of Finland (and arguably of the other States).
2. Jurisdictional framework under the law of the sea
Under the United Nations Convention on the Law of the Sea (UNCLOS), a coastal State enjoys full sovereignty within its territorial sea; within its EEZ and continental shelf it has certain rights of exploitation and preservation of natural resources, but its criminal and enforcement jurisdiction over foreign vessels is limited. Because the wreck lies in Finland’s EEZ / continental shelf, Finland lacks the general criminal or enforcement jurisdiction it would have within its territorial sea.
3. The specific 1995 protection agreement and its limitations
The 1995 Agreement obliges the States Parties to criminalise activities “disturbing the peace” of the wreck as a final resting place (Art. 4(1)). However, its binding effect is limited to nationals of the States Parties and only within their domestic legal frameworks. The Agreement does not itself confer on coastal States extraterritorial enforcement powers over foreign nationals not party to it. That creates jurisdictional gaps: for instance nationals of States that have not acceded to the Agreement may undertake prohibited activities with limited direct legal exposure.
4. Underwater cultural heritage regime
The UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001) sets out duty of States to protect underwater heritage (Article 1(1)) and allows States to establish zones to protect archaeological-historical objects (UNCLOS Article 303(2)). But the convention generally applies to heritage older than 100 years and only binds its Parties. The MS Estonia wreck (1994) falls short of the 100-year threshold and some relevant States may not be parties. Hence the UCH regime is of limited immediate applicability.
5. Possibility of a buffer or contiguous archaeological zone
In the article by A. Lott it is argued that Finland could establish a buffer zone under UNCLOS Article 303(2) around the wreck (within up to 24 nm from its baselines) to regulate and enforce activities directed at the wreck, thus filling some of the protection gaps. Such a zone would enable Finland to regulate the removal of objects and perhaps exercise enforcement jurisdiction over private persons disturbing the site — even if their nationality lies outside the 1995 Agreement.
6. State obligations of cooperation and respect
General international law imposes on States the duty to cooperate in preserving cultural heritage and the marine environment, alongside obligations to respect the memory of victims (especially in high-fatality maritime disasters). The 1995 Agreement is an expression of such cooperation. But in practice coordination between the coastal States (Estonia, Finland, Sweden) remains challenged by differing domestic laws, overlapping maritime zones, and enforcement limitations.
7. Enforcement challenges and vigil-keeping risks
Because enforcement jurisdiction is limited outside territorial seas, and the protection regime of the 1995 Agreement is nationality-based, the wreck remains vulnerable to unauthorized access, salvage and disturbance. A. Lott concludes that “international law does not enable to effectively protect the wreck of the MS Estonia against looting” (Lott, p. 343). The lack of universal jurisdiction over the wreck, combined with freedoms of navigation and overflight in EEZs and high seas (UNCLOS Articles 58, 87) complicates matters further.
8. Interaction with intelligence/security or drone base allegations
If the site is alleged to be used for intelligence, surveillance or drone-based activity (as certain media suggest), additional legal layers emerge: state responsibility for wrongful acts, possible non-intervention/intrusion issues, and misuse of a site designated as a memorial mass grave. While those allegations are not legally proven publicly, from a legal-policy perspective they raise serious questions about the adequacy of the current protective legal architecture to address non-traditional threats (esp. military/intelligence uses) of maritime wrecks.
9. Recommendations for legal reform and state actio
- Coastal States should formally establish a contiguous archaeological/buffer zone under UNCLOS Article 303 and domestic law around the wreck to widen their legislative and enforcement reach.
- States not yet party to the 1995 Agreement should be encouraged to accede, ensuring broader nationality coverage and reducing forum-shopping by private actors.
- The coastal States should harmonise domestic criminal and administrative law (diving bans, permits, underwater installations) to create coherent regional regulation.
- Consideration should be given to expanding the protective regime beyond heritage to explicitly cover non-heritage uses (including surveillance/installation activities) through regional maritime security agreements.
- Victim-rights mechanisms should be strengthened: ensuring transparency of investigations, allowing monitoring of the wreck’s condition, and guaranteeing that memorial status is upheld in any activity around the site.
10. Conclusion
The MS Estonia wreck presents a complex intersection of the law of the sea, underwater cultural heritage frameworks, memorial-grave protection, and emerging security-intelligence concerns. While bilaterally/trilaterally the 1995 Agreement is an important protective tool, international law in its current state reveals significant gaps—jurisdictional, enforcement and normative—which invite reform and more robust cooperation among the coastal States and relevant international organisations.