Navigation in the Northern Sea Route: interaction of Russian and international applicable law

ABSTRACT

The current legal regime of the Northern Sea Route (NSR) as it is defined by Russian legislation based on relevant international customary rules is now facing new challenges in the context of the obligations of Russia under the UN Convention on the Law of the Sea (UNCLOS). Being part of the Arctic Zone of the Russian Federation (AZRF), as it is legally defined now in the ‘Fundamentals of the State Policy of the Russian Federation in the Arctic for the Period up to 2035’ (promulgated by the President of the Russian Federation in 2020), the NSR is defined by Russian Law as ‘a historically established’ national transport communication ‘of the Russian Federation in the Arctic’. On the other hand, the latest Russian legal acts, including Order of the Government of the Russian Federation (2019) ‘Infrastructure Development Plan of the Northern Sea Route for the period until 2035’, guides Russian agencies to encourage increasing international carriages between the countries of Europe, Asia and America via the NSR. In this context this paper presents relative options for harmonisation of the status of the AZRF and of the NSR with the rules of international law on the internal waters, territorial sea and exclusive economic zone, with special emphasis on the applicability of Article 234 of UNCLOS to the NSR and Russian legislation on the NSR to warships.

KEYWORDS:

• Northern Sea Route
• UNCLOS
• arctic zone of the Russian Federation
• ice-covered areas

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

¹ The term ‘Arctic coastal States’ means usually the group of five States bordering the Arctic Ocean, each of them having internal waters, territorial seas, exclusive economic zone and continental shelf in the Arctic Ocean, i.e. Canada, Denmark (because of Greenland), Norway, Russia and USA (because of Alaska). The term ‘Arctic States’ means usually the group of eight States the territories of which are crossed by the North Polar Circle; that is, in addition to the five States mentioned above, Finland, Iceland and Sweden. These eight States are also members of the Arctic Council.

² O. Young, “Arctic Futures: the Power of Ideas” in Environmental Security in the Arctic Ocean, ed. P.A. Berkman, A.N. Vylegzhanin (Springer, 2010): 123–4.

³ A.G. Granberg, and V.I. Peresipkin, eds, Problems of the Northern Sea Route [in Russian] (Moscow. Nauka Publ., 2006; in Russian), 9–10.

⁴ Ibid.,10–11.

⁵ Ibid., 13.

⁶ The Japan Association of Marine Safety, Northern Sea Route Handbook, 2015.

⁷ Drent, Jan, “Commercial Shipping on the Northern Sea Route.” The Northern MarinerIII, no. 2 (April 1993): 1.

⁸ N. Koroleva, V. Markov, and A. Ushakov, Legal Regime of Navigation in the Russian Arctic (Moscow, 1995), 98.

⁹ Lee, S.-W., and J.-M. Song, “Economic Possibilities of Shipping through Northern Sea Route,” The Asian Journal of Shipping and Logistics 30, no. 3: 418.

¹⁰ Solvang, H. and others, “An Exploratory Study on the Northern Sea Route as an Alternative Shipping Passage,” Maritime Policy & Management 45, no. 4 (2018): 495–513.

¹¹ Shengda Zhu and others, “The Environmental Costs and Economic Implications of Container Shipping on the Northern Sea Route,” Maritime Policy & Management 45, no. 4 (2018): 456–477

¹² Porfir’ev B. N. and others, Consequences of Climate Change for the Economic Development of Particular Russian Arctic Economy Sectors [in Russian] in Arktika: ekologiya i ekonomika. T. 28. № 4: 6.

¹³ State program ‘Socioeconomic Development of the Russian Arctic Zone’, URL: http://government.ru/rugovclassifier/830/events/.

¹⁴ Decree of President of the RF dated 7.05.2018 № 204 ‘On National Aims and Strategic Priorities of Russian Federation development for the period till 2024’. Ministry of Energy of the RF. URL: https://minenergo.gov.ru/view-pdf/11246/84473.

¹⁵ Østreng, W and others. Shipping in arctic waters: A comparison of the northeast, northwest and trans polar passages (Springer, 2013): 351.

¹⁶ Permissions for navigation in the water area of the Northern Sea route. URL: http://www.nsra.ru/ru/rassmotrenie_zayavleniy/razresheniya.html?year=2019.

¹⁷ The English text of the 1926 Decree see in: Berkman P., A.Vylegzhanin, and O.Young. Baselines of Russian Arctic Laws. (Springer, 2019)”: 216.

¹⁸ The history of Russian navigation in the Arctic Seas in the 17th-18th centuries is illustrated by «The Map Showing the Inventions of Russian Navigators in the Northern Part of America and Other Adjacent Places Made During Various Voyages» which was drawn by the Imperial Academy of Sciences in 1774. Source: ‘Description of ancient atlases maps and plans published in XVI, XVII, XVIII centuries and in the first half of XIX century’ (kept in the Archives of the Navy’s Central Cartographic Works). – Leningrad: Office of the Head of the Navy’s Hydrographic Service, 1958. P. 29.

¹⁹ Koroleva, Markov, and Ushakov. Navigation in the Russian Arctic, 60–61.

²⁰ Ibid., 58.

²¹ The End of Russian America. Captain P.N. Golovin’s last report. 1862. Basil Dmytryshyn and E.A.P. Crownhart-Vaughan (Oregon Historical Society, Portland, 1979): 3.

²² Praviteslvennyi Vestnik (‘Правительственный вестник’), 17 October 1916 (17), № 212.

²³ An Act, respecting the Northwest Territories, 1906; The Northwest Territories Act, 1925. The latter provides for ‘territories’, ‘islands’ and ‘possessions’. Relevant Russian legislation (‘Postanovlenie Prezidiuma Centralnogo Ispolnitelnogo Komiteta SSSR’ or the Decree, of 15.04.1926) uses a similar wording.

²⁴ The USA, though respecting land sector lines, established by the Conventions of 1825 and 1867, does not have national laws regarding sea area within these lines. Melkov, ed. International Law [in Russian]. RIOR publishing house, Moscow, 2009: 420–423.

²⁵ Rothwell D.R. The Polar Regions and the Development of International Law (Cambridge University Press, 1996): 4–5.

²⁶ Fundamentals of the State Policy of the Russian Federation in the Arctic for the Period up to 2035 approved by Presidential Decree of 05.03.2020 N 164. URL:

http://www.consultant.ru/document/cons_doc_LAW_347129/.

²⁷ ”Melting Glaciers Reveal Five New Islands in the Arctic,” The Guardian, 22 October 2019, https://www.theguardian.com/environment/2019/oct/22/melting-glaciers-reveal-five-new-islands-in-the-arctic.

²⁸ List of Geographic Coordinates of Points that Determine the Position of the Straight Baselines from Which the Breadth of the Territorial Sea, Economic Zone and Continental Shelf of the USSR Off the Continental Coast and Islands of the Arctic Ocean, the Baltic and Black Seas Is Measured, Approved by the Resolutions of the Council of Ministers of the USSR of 7 February 1984, and 15 January 1985, both available at the DOALOS Web site.

²⁹ The English texts of universal and regional and bilateral agreements applicable to activity in the Arctic Region are available now in: Berkman, Vylegzhanin, and Young, Russian Arctic Laws.

³⁰ Fundamentals of the State Policy of the Russian Federation in the Arctic for the Period up to 2035.

³¹ Article 5.1. Navigation in the area of the Northern Sea Route.

1. The area of the Northern Sea Route means a water area adjoining the northern coast of the Russian Federation, including internal sea waters, territorial sea, contiguous zone and exclusive economic zone of the Russian Federation and limited in the East by the line delimiting the sea areas with the United States of America and by the parallel of the Dezhnev Cape in the Bering Strait; in the West, by the meridian of the Cape Zhelanie to the Novaya Zemlya archipelago, by the east coastal line of the Novaya Zemlya archipelago and the western limits of the Matochkin Shar, Kara Gates, Yugorski Shar Straits.

³² Østreng, W and others. Shipping in arctic waters, 15.

³³ Federal Law dated 27.12.2018 г. № 525-FZ ‘On introduction of amendments into certain legislative acts of the Russian Federation (on participation of Rosatom Corporation in functioning of the Northern Sea Route).’

³⁴ Explanatory Note to Draft Law ‘On Amending Certain Legislative Acts of Russian Federation in terms of state regulation of merchant shipping in the Northern Sea Route’. URL: https://www.mintrans.ru/documents/8/1494. The term ‘International Environmental Law’ is explained by a number of authors. See generally: Molitor, M. International Environmental Law. Primary Materials. (1991); Birnie, P., Boyle,A. International Law and the Environment (1992).

³⁵ Though we are not prepared to share the suggestion of Kraska, J. Governance of Ice-Covered Areas: Rule Construction in the Arctic Ocean, in Ocean Development & International Law (2014): ‘Ostensibly applicable to all “ice-covered areas,” the new article was really only about the Arctic Ocean’.

³⁶ United Nations Convention on the Law of the Sea 1982. A Commentary. Volume IV, Ed.-in-Chief Nordquist M. N. (Martinus Nijhoff Publishers. Dordrecht/Boston/London). 1991: 393.

³⁷ Ibid.

³⁸ Becker, Michael A. Russia and the Arctic: Opportunities for Engagement within the Existing Legal Framework, American University International Law Review 25, no.2, 2010: 225–25.

³⁹ Albert Buixadé Farré et al, “Commercial Arctic Shipping Through the Northeast Passage: Routes, Resources, Governance, Technology, and Infrastructure,” Polar Geography, 2014.

⁴⁰ K. Hakapää, and Molenaar, Erik, “Innocent Passage – Past and Present,” Marine Policy 23, no. 2 (1998).

⁴¹ V.Gavrilov, R.Dremliuga, and R.Nurimbetov “Article 234 of the UN Convention on the law of the sea and reduction of ice-cover in the Arctic Ocean,” Marine Policy 106, (2019).

⁴² McRae, D.M. & Goundrey, D.J., “Environmental Jurisdiction in Arctic Waters: The Extent of Article 234,” University of British Columbia Law Review 16, no. 2: 221.

⁴³ Pharand, Donat, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development & International Law 38, no. 1–2: 47.

⁴⁴ Lilly Weidemann, “International Governance of the Arctic Marine Environment: With Particular Emphasis on High Seas Fisheries,” Hamburg Studies on Maritime Affairs (2014): 80.

⁴⁵ United Nations Convention on the Law of the Sea. 1982. A Commentary: 398.

⁴⁶ Northern Canada Vessel Traffic Services Zone Regulations SOR/2010-127, URL: https://laws-lois.justice.gc.ca/eng/regulations/SOR-2010-127/FullText.html.

⁴⁷ Stanley P. Fields, Article 234 of the United Nations Convention on the Law of the Sea: The Overlooked Linchpin for Achieving Safety and Security in the U.S. Arctic? 7 HAR.NAT’L SEC.J 55, no. 72–73 (2016): 95.

⁴⁸ American Bureau of Shipping (ABS) Advisory ‘Navigating the Northern Sea Route: Status and Guidance’. URL: https://ww2.eagle.org/en.html.

⁴⁹ Oil Companies International Marine Forum (OCIMF) ‘Northern Sea Route Navigation: Best Practices and Challenges’ (2017). URL: https://www.ocimf.org/media/73010/Northern-Sea-Route-Navigation-Best-Practices-and-Challenges-1-.pdf.

⁵⁰ M. Byers. International Law and the Arctic (Cambridge University Press, 2013): 144.

⁵¹ Ibid., 144–145.

⁵² For the text of the note see: Berkman, Vylegzhanin and Young, Baseline of Russian Arctic Laws, 116.

⁵³ Sean Fahey, “Access Control: Freedom of the Seas in the Arctic and the Russian. Northern Sea Route Regime,” 51 HARV. NAT’L SEC. J. 154, 168 (2018): 159.

⁵⁴ List of Geographic Coordinates of Points that Determine the Position of the Straight Baselines from Which the Breadth of the Territorial Sea, Economic Zone and Continental Shelf of the USSR Off the Continental Coast and Islands of the Arctic Ocean, the Baltic and Black Seas Is Measured, Approved by the Resolutions of the Council of Ministers of the USSR of 7 February 1984, and 15 January 1985, both available at the DOALOS Web site.

⁵⁵ T. Stevenson, J. Davies, H. Huntington, W. Sheard. An examination of trans-Arctic vessel routing in the Central Arctic Ocean./Marine Policy 100(2019). P. 83–89 (p.85).

⁵⁶ M. Byers. International Law and the Arctic: 139–140.

⁵⁷ See e.g. ‘Fundamentals of the State Policy of the Russian Federation in the Arctic for the Period up to 2035’ approved by Presidential Decree of 05.03.2020 N 164; ‘The marine doctrine of the Russian Federation for the period till 2020’; ‘Russian Strategy of the Development of the Arctic Zone and the Provision of National Security until 2020’.

⁵⁸ Draft ruling of the Government of Russia amending Resolution No. 1102 of the Government of Russia dated 2 October 1999 ‘On the rules of navigation and presence of foreign warships and other state-owned ships operated for non-commercial purposes in the territorial sea, internal waters, on naval bases, and bases for stationing warships in seaports of the Russian Federation’. URL: https://regulation.gov.ru/projects#npa=89000

⁵⁹ Alexander M. Lewis. Navigational restrictions within the new LOS context. Geographical implications for the United States. Melkov (ed.) International Law: 425.

⁶⁰ M.Byers. International Law and the Arctic, 145.

⁶¹ Kastner P. International Legal Dimensions of the Northern Sea Route. In Keupp M.M., ed., The Northern Sea Route A Comprehensive Analysis, 47.

⁶² Document 310 USSR Ministry of Merchant Marine, Oral Demarche to the United States Coast Guard Cutter Edisto (28 August 1967)/The Arctic in International Law and Policy/ed. Kristina Schönfeldt.

⁶³ US Diplomatic Note to the USSR Government dated 30 August 1967) in The Arctic in International Law and Policy, ed. Kristina Schönfeldt.

⁶⁴ Roach J.A., and Smith W.R. Excessive Maritime Claims. 3rd ed. Leiden: Martinus Nijhoff Publishers. 2012: 231.

⁶⁵ LIS No. 112 – United States Responses to Excessive National Maritime Claims. Office of Ocean Affairs. 1982, 70.

⁶⁶ Regulations on compulsory pilotage and the use of pilot exemption certificates (Compulsory Pilotage Regulations) of the Ministry of Transport and Communications pursuant to §§ 2, 6, 7, 11, 15, 17 and 20 of Act no. 61 of 15 August 2014 relating to the Pilot services. URL: https://www.kystverket.no/globalassets/los/regelverk-engelsk/01.2017_compulsory-pilotage-regulations_revised-final.pdf