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The Northern Sea Route: Solving Political and Legal Problems

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Abstract

The possible responses of Russia to modern challenges to the legislative regulation of navigation along the Northern Sea Route are analyzed against the background of climate change in the Arctic. The authors focus on identifying the best ways to harmonize the status of the Arctic zone of the Russian Federation and the statutory regime of navigation along the Northern Sea Route with the rules of international law, including the framework of a scenario assuming that the waters of the Arctic Ocean will be ice-free for a significant part of the year. The international legal validity of Russia’s policy aimed at preserving the status of its Arctic zone and the Northern Sea Route is revealed; controversial issues in the positions of states, primarily the United States, regarding the status of this route are examined. Possible interpretations of Article 234 of the 1982 UN Convention on the Law of the Sea (on ice-covered areas) are considered as applied to the Northern Sea Route. Substantively analyzing the disagreements between Russia and the United States, the authors show that their essence is in an attempt by the United States to revise the regime of the Vilkitskii Strait and some other Arctic straits of Russia as its internal waters that have been developed and maintained for centuries. Ways of ensuring the interests of the Russian Federation in its Arctic zone based on cooperation primarily with the countries of the Arctic Council are shown.

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Notes

  1. The status of the Northern Sea Route is confirmed by Article 14 of Federal Law No. 155-FZ of July 31, 1998, On Internal Sea Waters, Territorial Seas, and the Contiguous Zone of the Russian Federation.

  2. The French scientific literature shows that the Russian legislation on permissive navigation along the Arctic coast of the country, reaching the shores of the Kara, Laptev, East Siberian, and Chukchi seas, “is based on the historic right according to the antique Decree of 1619,” on the qualifications of passage through these four seas as a “truly national sea route,” on subsequent legal documents adopted already in the Soviet period, including the proposals put forward in 1949 by the Institute of Law of the USSR Academy of Sciences to qualify these four seas as “under USSR sovereignty,” although the “the USSR government has never officially supported these proposals.” Formally valid since 1932, the permitting procedure for passage through the Northern Sea Route “in fact was used only 70 days a year” [3].

  3. Arctic coastal states (or “subarctic states”) are a group of five states bordering the Arctic Ocean; each of them has internal waters, a territorial sea, an exclusive economic zone, and a continental shelf in the Arctic Ocean: Canada, Denmark (because of Greenland), Norway, Russia, and the United States (because of Alaska). The term “Arctic states” refers to a group of eight states (in addition to those mentioned, it includes Finland, Iceland, and Sweden) the territories of which are crossed by the Arctic Circle. All of them are members of the Arctic Council.

  4. An unofficial systematization of the main such international treaties and acts of national legislation was carried out by a group of Russian and foreign analysts. This work was published in English in 2019 [2].

  5. The Statute forms an integral part of the UN Charter (Article 92).

  6. From the point of view of historical science, one can hardly speak of the existence of the Russian state in the 12th–14th centuries (the period of political fragmentation of the ancient Russian lands) [10, pp. 165–325]. However, from the point of view of legal science, by virtue of the principle of continuity (continuation), the Russian principalities (including Kievan Rus, starting with its treaties with Byzantium of the 10th century) were already outwardly appearing as Rus—an aggregate subject of international law, and their acquired rights, including by virtue of international treaties, did not disappear with the formation of the united Russian (Moscow) state in the 15th century [11, p. 20 ff].

  7. For the texts of Russian Arctic laws, see [2], see also [14, 15, pp. 214, 215].

  8. An Act, respecting the Northwest Territories, 1906; The Northwest Territories Act, 1925. The latter uses the terms territories, islands, and possessions. In the Decree of the Presidium of the USSR Central Executive Committee dated April 15, 1926, similar concepts and formulations are used.

  9. The United States, for example, while respecting the land sector boundaries established by the 1825 and 1867 Conventions, nevertheless does not have national laws regarding the status of sea areas within these sectoral lines. For more details, see [2, pp. XV–XXIII]. Accordingly, the United States, unlike Canada, does not claim to exercise any jurisdiction within the de jure existing US Arctic sector, formed by the meridian boundaries of the 1825 and 1867 Conventions.

  10. Clause 1 of Article 3 of the Agreement and its Appendix (“Scope of Application of this Agreement”). For the text of the Agreement and comments to it, see [20, pp. 33–36, 56–77]. The sectoral (meridian) dividing line between Norway and Denmark has not been established by any legal act—neither national nor international. It was designated by Professor V.L. Lakhtin in the book Rights to the Northern Polar Spaces, published in 1928.

  11. Similarly, according to Article 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zone, in places “if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.” Clause 2 of Article 5 provides: “Where the establishment of a straight baseline in accordance with article 4 has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage ... shall exist in those waters.” However, as shown above, the Russian Empire back in the 17th–early 20th centuries considered the straits of the Kara Gates, Vilkitskyii, Dmitry Laptev, and Sannikov as internal waters of the state. So, in the context of the 1958 Convention, the confirmation of the status of these straits as internal waters of the Soviet Union was fully consistent with international law in 1985.

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Authors and Affiliations

  1. Moscow State Institute of International Relations (MGIMO University), Ministry of Foreign Affairs of Russia, Moscow, Russia

    A. N. Vylegzhanin & I. V. Bunik

  2. Security Council of the Russian Federation, Moscow, Russia

    V. P. Nazarov

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  1. A. N. Vylegzhanin
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  2. V. P. Nazarov
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  3. I. V. Bunik
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Correspondence to A. N. Vylegzhanin, V. P. Nazarov or I. V. Bunik.

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Translated by B. Alekseev

Aleksandr Nikolaevich Vylegzhanin, Dr. Sci. (Law), is Head of the Department of International Law at MGIMO University, Ministry of Foreign Affairs of Russia. Vladimir Pavlovich Nazarov, Cand. Sci. (Polit.), is an Advisor to the Secretary of the Security Council of the Russian Federation. Ivan Vladimirovich Bunik, Cand. Sci. (Law), is an Attorney and Visiting Associate Professor at MGIMO University.

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Vylegzhanin, A.N., Nazarov, V.P. & Bunik, I.V. The Northern Sea Route: Solving Political and Legal Problems. Her. Russ. Acad. Sci. 90, 718–729 (2020). https://doi.org/10.1134/S1019331620060349

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