The Virginia-class fast-attack submarine USS Illinois (SSN 786) moors in the Arctic pack ice of the Beaufort Sea during Ice Exercise (ICEX) 2022. Photo: US Navy
The Northern Sea Route (NSR) is an unexpected casualty of the war in Ukraine. Due to the sanctions regime and generally strained relations between Russia and the West, the long-held vision of an economically viable Northeast Passage (NEP) between Pacific and Atlantic ports via the Strait Russian Arctic could be clinically dead. However, what might be outdated (or just left out) is a specific view of the NEP – emphasizing the utility of a geographically shorter route for economic exchanges opened up by climate change.
We have become accustomed to thinking of the NSR in commercial terms, but in the aura of the Arctic as a zone of peace and cooperation, we have almost forgotten its geopolitical usefulness, namely being a (shorter) passage between the Atlantic and Pacific. In the future, the NSR could be used for non-commercial purposes, for example by foreign warships. The harsh reality is that whoever controls the strait controls the NEP. While it is theoretically possible to circumnavigate the Russian Arctic Strait and use the NEP, the American experience of the 1960s (as covered in detail by Roach and Smith’s Excessive Maritime Claims) is not particularly uplifting.
The conditions for using these areas, and in particular the Russian Arctic Strait, are governed by international law of the sea, primarily the United Nations Convention on the Law of the Sea (UNCLOS). The law of the sea balances the inclusive interest of the international community in global mobility (freedom of navigation) with the exclusive interests of coastal states in authority over the marine areas adjacent to their coasts. It provides stability by providing a means of dividing the entire world into maritime zones, subject to navigational rights and freedoms. The balance is not set in stone, as states could pursue their particular interests by making claims reflecting their understanding of the applicable rules. The flexibility of international law is nurtured but also controlled by the action-reaction paradigm and notions such as acquiescence. For example, the United States actively uses diplomatic channels and the Freedom of Navigation (FON) program to influence other states to avoid or renounce maritime claims perceived as excessive.
Russia has claimed for decades that the waters of most NSR straits have the status of internal waters. However, under international law of the sea, a right of innocent passage (UNCLOS Article 8(2)) or transit passage (UNCLOS Article 35(a)) may still apply in internal waters. unless they are considered historic waters. During the 90 years of operation of the NSR, Russia (or the USSR) never publicly made a consistent historical claim to the waters of the NSR straits. Instead, Russia managed to control the Arctic strait by resorting to ambiguity, without excluding the claim of historic waters. However, not making an explicit claim allowed Russia to fend off possible diplomatic protests from other states. Writers of Russian international law rarely explicitly discuss the status of the straits, except to frame the issue as a fairly straightforward case of complete sovereignty. Statements by scholars, however, carry little weight in international law and do not fit into the action-reaction paradigm.
Contrary to the narrative of Russian academic writings, the issue of applicable navigation rights in the Russian Arctic Strait is undetermined, contested, and of immense potential importance in the future. The United States considers certain NSR straits to be “used for international navigation”, which implies the applicability of the transit passage regime. The present author has argued elsewhere that UNCLOS Article 8(2) preserves the right of innocent passage through all NSR straits, without the need for prior acceptance, recognition or use.
In the shadow of the war in Ukraine, Russia is prioritizing the Arctic and shaping its policy and practice in stages. After modifying the Russian baseline system, the newly released maritime doctrine focuses on the naval activity of foreign states in the NSR maritime zone. The 2022 bill seeks to double down on the call to exercise control over foreign warships in the NSR and preserve the historically established international legal regime of internal waters in the NSR’s Arctic Strait, whatever that means.
It is essential to follow the development of Russian Arctic legislation. The Russian Duma is currently considering a new law to justify the Russian claim to the NSR strait. The law proposes to require foreign warships and other state-owned vessels to seek clearance for passage through NSR internal waters at least 90 days prior to entry, coupled with a mechanism to effectively prohibit innocent passage of unwanted foreign state ships through the Russian territorial sea.
Seen in the context of the documents already adopted, this process will probably be completed this autumn. The drafts do not explicitly mention the historical title, but the substance of the proposed legislation sets the stage for this subject to arise sooner or later. Regarding the action-reaction paradigm international law, other states must be prepared to react or risk acquiescing.
This contribution features the following NCLOS blog post by Jan Jakub Solski, “New Draft Law on the Russian Arctic Straits – Putin’ Money Where the Mouth is?” (September 14, 2022). The message discusses in more detail the new Russian draft law on access of foreign warships to the straits of the Northern Sea Route (NSR). It analyzes the proposed legislation in the broader context of other documents recently adopted by the Russian Federation: the 2021 Decree on Arctic Baselines and the 2022 Maritime Doctrine of the Russian Federation.
Jan Jakub Solski is a postdoctoral fellow at the Norwegian Center for the Law of the Sea, UiT – the Arctic University of Norway.