The Russian government has developed new rules to control the Northern Sea Route, which passes along the country’s northern coast in the Arctic, the newspaper on March 6. “Russia is taking the Northern Sea Route under protection,” wrote Izvestia, in a piece headlined “A Cold Wave” – an apparent reference to the Cold War.
Russian officials claim the new regulations are designed to protect the environment and commercial shipping, in lieu of Article 234 of the United Nations Convention on the .
In reality, Russia’s new rules concern foreign military ships and military vessels, which are sovereign immune vessels and exempt from Article 234 of the Law of the Sea. Nevertheless, Russia requires foreign military ships and naval auxiliaries to give 45 days’ advance notice and obtain “permission” to use the passage. The document must include the vessel’s name, purpose, route, timetable, and technical specifications, as well as the military rank and identity of its captain. The new Russian rules require that foreign military ships take on board Russian pilots while sailing through the Arctic. Even if the foreign vessels meet all Russia’s requirements, the Russian authorities still can reject their request for passage without explanation. In the event of an unsanctioned passage, the foreign naval vessels could be arrested and even destroyed.
Russia uses the term “Northern Sea Route” (NSR) to describe the area from the Barents Sea in the west to the Bering Strait in the east. It is part of a larger transoceanic route – the Northeast Passage connecting the Atlantic and Pacific oceans.
Like the other Arctic nations, Russia is granted an exclusive economic zone of 200 nautical miles adjacent to its shores. But the scope of the NSR as described by Moscow has been disputed by other Arctic states, which say that Russia considers the route to extend beyond its exclusive economic zone and to include the Bering Strait. Provisions of the Law of the Sea international straits as passages that are too narrow for the high sea or exclusive economic zone regimes to apply. Transit passages and innocent passages are for vessels of other states.
“Indeed, the NSR passes not only within Russia’s territorial waters, nevertheless, our country has the legal right to regulate navigation along the entire route,” Kamil Bekyashev, vice president of the Russian Maritime Law Association.
Does Russia indeed have the right to impose a permission regime on commercial ships and sovereign immune vessels passing through the Northern Sea Route?
“This statement appears to be out of sync with the Law of the Sea treaty,” Heather Conley, senior vice president of the Center for Strategic and International Studies in Washington, DC, told Polygraph.info. “The Northern Sea Route is an international passage and this suggested wider interpretation may even call into question international use of a portion of the high seas of the Central Arctic Ocean.”
Russia has already heavily regulated commercial traffic through the Northern Sea Route, and in May 2015, the U.S. State Department sent a strongly-worded diplomatic note to Moscow warning that some aspects of Russia’s regulatory scheme were “inconsistent with international law.” The requirements to obtain Russia’s permission to enter and transit the exclusive economic zone and territorial sea; persistent characterization of international straits that form part of the Northern Sea Route as internal waters; and the lack of any express exemption for sovereign immune vessels.
Moscow justifies its regulation of commercial traffic by pointing to Article 234 of the United Nations Convention on the , which allows coastal states “to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone.”
However, Washington that Article 234 does not justify Russia’s requirement for prior notification or permission to exercise navigation rights and freedoms. U.S. policy has long prioritized ensuring freedom of the seas globally as a central component of U.S. national security policy and a key strategic goal in the U.S. National Strategy for the Arctic Region.
In the same May 2015 diplomatic note, the U.S. State Department Russia to confirm that the Northern Sea Route scheme shall not apply to sovereign immune vessels. Sovereign immune vessels are “any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service.”