Northern Sea Route. RIAC reader

RIAC reader

Northern Sea Route

Law · Transit · Ecology · Icebreakers · Security

Video: NArFU
Foreign ship operators' interest in the Northern Sea Route can be linked primarily to its being almost half the length of other sea routes from Europe to the Far East: the distance between St. Petersburg and Vladivostok via the Northern Sea Route is 14,280km, compared to 23,200km via the Suez Canal and 29,400 km round the Cape of Good Hope. In 2014 614 permits were granted, 109 of which were for foreign ships.

Maritime Law


Irina Mikhina
PhD in Law, Head of the International Law of the Sea Department, Institute “Soyuzmorniiproekt”, Moscow
Today, Russia's goal in the Arctic in general and in the NSR area in particular, is as follows: to create a complex of laws governing navigation, which will be consistent with international law and create safe and economically attractive conditions for international projects, while also serving Russia's interests in maintaining control over NSR waters.

The UN Convention on the Law of the Sea and Developing the Northern Sea Route: Opportunities and Threats for Russia

Pavel Gudev
PhD in History, Senior Research Fellow at RAS IMEMO Sector for US Foreign and Domestic Policy, RIAC expert
The 1982 Convention offers some opportunities to control navigation in straits used for international navigation. Russia and the U.S. may designate sea lanes and traffic separation schemes (Article 41) subject to approval by the International Maritime Organization (IMO).

Conflicting Interests in Regulating Navigation in the Bering Strait

Valery Konyshev
Dr.sc.pol., SPbSU professor, RIAC expert
Most of the states willing to use the NSR would prefer to see it internationalized, which means the withdrawal of the waterway from Russian jurisdiction and opening it up for unrestricted navigation. The United States has been especially insistent on the freedom of the sea, regarding this point as the basic tenet of its maritime strategy throughout history.

Aleksandr Sergunin
Dr.sc.pol., SPbSU professor, RIAC expert
Legal problems have also arisen because the NSR runs through numerous straits that have varying international statuses, similar to other stretches of the route. Some countries, for example, the United States, believe that the straits must be given the status of a global commons to provide all ships with the right of free passage.

Seven Arguments Why Shipping Regulations along the Northern Sea Route Must be Distinct

Transit
(The Case of The Bering Strait)


Pavel Gudev
PhD in History, Senior Research Fellow at RAS IMEMO Sector for US Foreign and Domestic Policy, RIAC expert
The Bering Strait is not only a key watershed between Asia (Cape Dezhnev in Russian Chukotka) and North America (Cape Prince of Wales in American Alaska). It is also the only passage for all Asia-Pacific states from the Pacific seas to the Arctic Ocean seas. The strait linking Bering and Chukotka seas is fairly narrow, a mere 51 sea miles. In the middle of the strait are the Diomede Islands: Ratmanov Island (Big Diomede) to the west of the sea border between the two countries and belonging to Russia and Kruzenstern Island (Little Diomede) located to the east of the sea border and belonging to the U.S.

Conflicting Interests in Regulating Navigation in the Bering Strait

Valery Konyshev
Dr.sc.pol., SPbSU professor, RIAC expert
The Black Sea straits open the way to Bulgaria, Georgia, Russia, Romania, Turkey and Ukraine; the Baltic straits (the Sound, the Great and Little Belt) lead to Denmark, Germany, Poland, three Baltic countries, Russia, Finland and Sweden. The regime for their governance has been established by multilateral conventions, i.e. the Montreux Convention of 1936 and the Copenhagen Convention of 1857, which fail to endow foreign ships absolute freedom of navigation, since they have to observe certain requirements imposed by coastal states for sanitary control, tonnage, time of stay in inland seas, etc.

Aleksandr Sergunin
Dr.sc.pol., SPbSU professor, RIAC expert
None of these cases are applicable to the NSR waters. Russian legal doctrine qualifies the Kara, Laptev, East Siberian and Chukchi (within the Russian sector limits) seas as inland waters because they historically belong to Russia and are regulated by inland sea rules. This type of straits has never been covered by international conventions, and beginning from the Soviet era, navigation has been controlled there by national laws and norms, which implies the lack of grounds for extending the freedom of the seas to the NSR waters.

Seven Arguments Why Shipping Regulations along the Northern Sea Route Must be Distinct

Vladimir Kotlyar
Doctor of law, Envoy Extraordinary and Minister Plenipotentiary, member of International Law Council, MFA, Russia
Ship operators or captains intending to follow the Northern Sea Route must apply to the Northern Sea Route Administration for a navigation permit at least 15 days before entering the Northern Sea Route waters, the permit to be issued for a specific period. When passing through the Northern Sea Route, Russian and foreign vessels are expected to meet special ice-reinforcement requirements and prove their insurance coverage. Furthermore, they are obliged to give the Northern Sea Route Administration 72-hours' notice of their approach to the Northern Sea Route waters and subsequently report daily on the vessel's progress, condition and the actual time of crossing the boundary of the Northern Sea Route waters.

Icebreaker assistance in Northern Sea Route waters for safe navigation of vessels under foreign flags: legal framework and established practice

Pavel Gudev
PhD in History, Senior Research Fellow at RAS IMEMO Sector for US Foreign and Domestic Policy, RIAC expert
There is no doubt that сooperation between Russia and the U.S. in the Arctic as a whole and in the Bering Strait in particular benefits both sides, and is vital due to climate change which is expected to boost maritime economic activities.

The achievement of any long-term agreements on the Bering Strait again raises the issue of the legal status of the straits which are part of the Canadian NWP and the Russian NEP. The U.S. position on the issue is well known: it challenges the claims of Russia and Canada to establish straight baselines and spread the status of historical internal waters to areas through which NWP and NEP lanes pass. The Americans consider the straits of the Canadian Arctic archipelago and part of the Russian Arctic straits (Lapteva and Sannikova, New Siberian Islands) to be international waters and insist that the right of transit passage applies to them.


Conflicting Interests in Regulating Navigation in the Bering Strait

Vladimir Kotlyar
Doctor of law, Envoy Extraordinary and Minister Plenipotentiary, member of International Law Council, MFA, Russia
Meanwhile, the vision of the Northern Sea Route as a national sea corridor does not preclude it from being open to vessels sailing under foreign flags, subject to compliance with Russian laws and established rules.

Icebreaker assistance in Northern Sea Route waters for safe navigation of vessels under foreign flags: legal framework and established practice

Pavel Gudev
PhD in History, Senior Research Fellow at RAS IMEMO Sector for US Foreign and Domestic Policy, RIAC expert
Under the first scenario no agreements between countries on the Bering Strait would alter the legal status of other Arctic straits. Like in the relations between the U.S. and Canada, each party will stick to its initial position, which will not affect the development of cooperation between them. Indeed it can already be stated that all the previous protests of the State Department and the U.S. Navy have been to a large extent concentrated on counteracting the policies of Russia and Canada in introducing restrictions only with regard to American warships and government ships used for noncommercial purposes.

Conflicting Interests in Regulating Navigation in the Bering Strait

Valery Mikheev
PhD in Law, Acting rector of Russian State Hydrometeorological University
Freight volume decreased by more than 76 per cent in this period, from 1,355,897 tons in 2013 to 74,000 tons in 2014. According to experts, there are a number of reasons for this: the situation on the oil market; diminishing the prestige of the Northern Sea Route against the background of anti-Russian sanctions; doubts as to the ability of Russia to ensure the functioning of the Northern Sea Route from a financial standpoint.

Icebreaker assistance in Northern Sea Route waters for safe navigation of vessels under foreign flags: legal framework and established practice

Ecology


Irina Mikhina
PhD in Law, Head of the International Law of the Sea Department, Institute “Soyuzmorniiproekt”, Moscow
Due to the intensified exploration and recovery of resources in the Arctic continental shelf combined with intensified navigation in the Arctic region, in 2015 the IMO adopted the Polar Code. The Code's goal has been to develop common rules and requirements for the safe navigation of ships and pollution prevention in ice-covered polar waters. The Code covers issues related to the design, construction, equipment and operation of ships in polar waters, including training crews for navigation in ice conditions and at low outdoor temperatures.

The United Nations Convention on the Law of the Sea and developing the Northern Sea Route: Opportunities and Threats for Russia

Valery Konyshev
Dr.sc.pol., SPbSU professor, RIAC expert
According to international experts, in the decades to come, the multi-year ice in the Arctic waters of the NSR and NWP may melt, which would deprive Russia and Canada of the legal grounds to refer to Article 234 of the UNCLOS. However, Russian and Canadian specialists remain skeptical that the routes will never be free of ice and icebergs.

Seven Arguments Why Shipping Regulations along the Northern Sea Route Must be Distinct

Valery Mikheev
PhD in Law, Acting rector of Russian State Hydrometeorological University
If the warming does continue, then the melting ice in the region, according to scientists, will have negative consequences as well. In particular, there will be an increased risk of strong winds and extreme waves. Icebergs will form and the Russian shores will suffer increased erosion.

Icebreaker assistance in Northern Sea Route waters for safe navigation of vessels under foreign flags: legal framework and established practice

Vladimir Kotlyar
Doctor of law, Envoy Extraordinary and Minister Plenipotentiary, member of International Law Council, MFA, Russia
At the same time, the unpredictable Arctic climate and drastic changes in weather conditions typical of the Arctic regions will often result in ice-free corridors covering quickly with floating ice. This being the case, Russian representatives at international forums have consistently warned against the illusion that unassisted passage along the Northern Sea Route might become feasible.

Icebreaker assistance in Northern Sea Route waters for safe navigation of vessels under foreign flags: legal framework and established practice

Aleksandr Sergunin
Dr.sc.pol., SPbSU professor, RIAC expert
In May 2015, the International Maritime Organization, a UN branch, completed its Polar Code planned for to come into effect in 2017. The document tightens the requirements for vessels operating in the Arctic, prohibits the discharge of oil and oil products into the water, and limits noxious emissions into the marine environment, which appears to create an opportunity for eliminating conflicts in international law and effectively adapting it to sailing in Arctic waters..

Seven Arguments Why Shipping Regulations along the Northern Sea Route Must be Distinct

Icebreakers


Vladimir Kotlyar
Doctor of law, Envoy Extraordinary and Minister Plenipotentiary, member of International Law Council, MFA, Russia
In March 2013, the Northern Sea Route Administration was reinstated for the purposes of organizing navigation, ensuring navigation safety and protection against marine pollution by vessels in the Northern Sea Route waters. According to the Northern Sea Route Administration, the quality of Russian icebreaker escort services has not, so far, drawn any complaints from foreign ship captains. Yet the waiting period is sometimes too long, to the natural discontent of ship operators, since it brings into question the Northern Sea Route's major advantage – faster passage and lower operating costs.

Icebreaker assistance in Northern Sea Route waters for safe navigation of vessels under foreign flags: legal framework and established practice

Valery Mikheev
PhD in Law, Acting rector of Russian State Hydrometeorological University
At the present time, 10 liner, 6 nuclear- and 4 diesel-powered icebreakers operate on Northern Sea Route waters. The development of Russia's icebreaker fleet is carried out under federal target programmes. The nuclear-powered fleet is expected to be expanded to include double-draft icebreakers.

The Use of Icebreakers on the Northern Sea Route. Legal Framework and Practice

Vladimir Kotlyar
Doctor of law, Envoy Extraordinary and Minister Plenipotentiary, member of International Law Council, MFA, Russia
At this point, only four of Russia's largest nuclear-powered icebreakers are in service, with one more on standby, but their technological capacity is almost at an end. It is possible that only two of them will remain in operation by 2017. In this context, the Russian government is taking steps to increase its Arctic icebreaker fleet. In November 2013, construction of a new generation nuclear-powered icebreaker, the LK-60 (Project 22220), to a cost of RUB 30bn was launched at the St. Petersburg-based Baltic Shipyard.

Icebreaker assistance in Northern Sea Route waters for safe navigation of vessels under foreign flags: legal framework and established practice

Valery Konyshev
Dr.sc.pol., SPbSU professor, RIAC expert
For example, some countries refute the requirements of the 2013 Russian Federation Rules of Navigation in the Water Area of the Northern Sea Route, including the need for a passage permit issued by the NSR Administration, as well as compulsory icebreaker escort and pilotage in certain cases.

Aleksandr Sergunin
Dr.sc.pol., SPbSU professor, RIAC expert
In its turn, Moscow quotes its right to establish special navigation rules for foreign ships in view of safety and ecology considerations. Far from safe without icebreaking and pilotage even in summer, the NSR waters appear to offer exactly this type of case in question.

Seven Arguments Why Shipping Regulations along the Northern Sea Route Must be Distinct

Security


Pavel Gudev
PhD in History, Senior Research Fellow at RAS IMEMO Sector for US Foreign and Domestic Policy, RIAC expert
The exercise of freedom of navigation may be used for illegal, unreported and unregulated harvesting, smuggling of drugs and arms, including WMD, illegal movement of people, including illegal migration and for acts of terrorism and piracy at sea. The use for these purposes of ships that do not comply with international requirements of ecological security poses a threat to the marine environment and its biodiversity, hence to ecological, resource and food security of coastal states or states bordering on straits.

Conflicting Interests in Regulating Navigation in the Bering Strait

Valery Konyshev
Dr.sc.pol., SPbSU professor, RIAC expert
Even if a warship violates the rules for passage through a territorial sea, the coastal state can only demand its immediate withdrawal without damage to its immunity (UNCLOS Article 30). A warship is virtually exempt from liability for polluting the marine environment (Article 236).

Aleksandr Sergunin
Dr.sc.pol., SPbSU professor, RIAC expert
The responsibility of warship captains slides toward marine ecology. The document only vaguely mentions that such vessels and aircraft should act "in a manner consistent, so far as is reasonable and practicable, with this Convention" (Article 236).

Seven Arguments Why Shipping Regulations along the Northern Sea Route Must be Distinct

Pavel Gudev
PhD in History, Senior Research Fellow at RAS IMEMO Sector for US Foreign and Domestic Policy, RIAC expert
All the main elements of the U.S. national security – strategic deterrence, operational presence, crisis response, and troop movement – hinge on compliance with the free navigation principle, in particular the right of transit passage. Ensuring mobility and prompt movement of armed forces to any part of the globe by sea remains one of America's political priorities.

Conflicting Interests in Regulating Navigation in the Bering Strait

Valery Mikheev
PhD in Law, Acting rector of Russian State Hydrometeorological University
As the Suez and Panama canals have reached almost full capacity, and the intercontinental ocean passages may be blocked by terrorists, the Northern Sea Route is becoming a priority in terms of international transport links. This is why it is necessary to create a system of safe navigation in the Arctic and build a corresponding fleet, as well as an icebreaker fleet capable of ensuring safe passage.

The Use of Icebreakers on the Northern Sea Route. Legal Framework and Practice

Conflicting Interests in Regulating Navigation in the Bering Strait

Pavel Gudev
PhD in History, Senior Research Fellow at RAS IMEMO Sector for US Foreign and Domestic Policy, RIAC expert
On 26 May, 2011 during the G8 meeting in Deauville (France) the Russian and U.S. presidents issued a joint statement on cooperation in the Bering Strait area. The statement stressed the crucial importance of taking into account the interests of the indigenous peoples of the North inhabiting Chukotka and Alaska, protection of the environment, natural resources and unique ecosystems of this maritime region. Later both the American and Russian experts endorsed the course for the development of bilateral cooperation in the Bering Strait to reduce the chances of emergency situations and raise the level of navigation safety. There is no doubt that сooperation between Russia and the U.S. in the Arctic as a whole and in the Bering Strait in particular benefits both sides, and is vital due to climate change which is expected to boost maritime economic activities.

The Bering Strait is not only a key watershed between Asia (Cape Dezhnev in Russian Chukotka) and North America (Cape Prince of Wales in American Alaska). It is also the only passage for all Asia-Pacific states from the Pacific seas to the Arctic Ocean seas. The strait linking Bering and Chukotka seas is fairly narrow, a mere 51 sea miles. In the middle of the strait are the Diomede Islands: Ratmanov Island (Big Diomede) to the west of the sea border between the two countries and belonging to Russia and Kruzenstern Island (Little Diomede) located to the east of the sea border and belonging to the U.S. The distance between the two islands is a little over two sea miles. The distance between Cape Dezhnev and Ratmanov Island, like the distance between Cape Prince of Wales and Kruzenstern Island, is 22.4 miles and it is these two passages that carry most of the traffic. Because both the eastern and western passage are less than 24 sea miles wide, the entire strait area, including the two islands, is covered by internal sea waters and territorial seas of Russia and the U.S.

***

Although internal sea waters and the territorial sea are covered by state sovereignty, convention right of transit passage applies to the straits covered by territorial waters but linking one part of the high seas or exclusive economic zone (EEZ) to the other part of the high seas or EEZ [1]. Considering that the legal status of the Bering Strait is not defined by a special international convention [2], both states are inclined to recognize its status as a strait used for international navigation. The relevant right of transit passage is described in Article 38 (2) of the 1982 Convention on the Law of the Sea (hereinafter 1982 Convention) as the "exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditions transit of the strait."

Compared to the right of innocent passage through the territorial sea of a coastal state the right of transit passage is a far more liberal norm.

First, under Article 38 (1) the right covers not only civilian vessels, but also warships, including submarines.

Second, transit passage also envisages overflights, including by military aircraft.

Third, under Article 39 (1)(с) submarines can proceed in "normal modes of continuous and expeditious transit", in other words, in submerged mode. The U.S. considers that the "normal mode" also implies the following: military aircraft can fly in combat formation; planes and helicopters can take off and land on decks; naval and civilian vessels can refuel while on the move; measures to ensure the security of surface vessels may be taken.

Fourth, although the exercise of the right of transit passage implies certain obligations on the part of watercraft and aircraft (Article 39), countries bordering the strait are not allowed to suspend transit passage (Article 44). States bordering on the straits may adopt laws and regulations relating to transit passage through straits in respect of some issues (Article 42 (1)). However, under Article 42 (2) "their application shall not have the practical effect of denying, hampering or impairing the right of transit passage." From the American point of view, the exercise of that right must not obstruct even the holding of military exercises and maneuvers [3].

***

The U.S. is consistently upholding the right of transit passage with respect to all straits that are or may be used for international navigation [4]. It has repeatedly opposed any claims of coastal states which do not recognize or limit that right with regard to the following straits: Bab-el-Mandeb, Bonifacio, Golovnin, Sunda, Gibraltar, Lombok, Hormuz, Torres, Vries as well as the straits on the Northeast Passage (NEP), Laptev and Sannikov, and the Canadian Arctic archipelago that form the route of the Northwest Passage (NWP) [5].

About 80% of world trade is seaborne, and 3/4 of that amount pass through the largest international straits and canals. The United States, being one of the largest economies in the world and a key consumer of goods and resources, is interested in fully exploiting the advantages offered by sea transport (the cheapest transport) and by sea trade. The U.S. sees unobstructed functioning of this system as the basis of a liberal world economic order and a guarantor of global peace and stability [6].

Protecting the freedom of navigation plays the key role not only in the socio-economic development of the U.S. but also in defense policy. All the main elements of the U.S. national security – strategic deterrence, operational presence, crisis response, and troop movement – hinge on compliance with the free navigation principle, in particular the right of transit passage. Ensuring mobility and prompt movement of armed forces to any part of the globe by sea remains one of America's political priorities.

The U.S. challenges the legal claims with respect to international straits and other maritime areas within the Freedom of Navigation (FON) program initiated back in 1979.

The program seeks to protect the principle of free navigation and is supervised by the State Department jointly with the Department of Defense. FON is implemented through negotiations, diplomatic protest notes, demonstration of the flag, naval exercises and by bringing in U.S. Navy ships. The years of Obama's presidency saw annual measures used against a number of states, including Iran and Oman as countries bordering on straits and seek restriction of the right of transit passage through the Hormuz Strait.

***

The U.S. tends to regard the right of transit passage as a step towards codification of customary law. It argues that the absence of a legally sealed right of "transit passage" prior to the adoption of the 1982 Convention was solely the result of the fact that states had no opportunity to legally extend the boundaries of their territorial sea beyond the statutory three nautical miles and not because it had been forbidden by anyone. Accordingly, this did not prevent American civilian and naval vessels from using designated lanes of the high seas in various international straits. The introduction of the 12-mile territorial sea limit called for the formulation of terms of transit passage in order to preserve the right of states to use international straits. Thus, from the American point of view the right of passage for naval and civilian vessels through international straits existed before the adoption of the 1982 Convention [7] .

The established opinion is that transit passage is an international compromise and goes beyond the framework both of the 1958 Convention on the Territorial Sea and the Contiguous Zone and the provisions of common international law [8]. It is not by chance that the 1982 Convention proclaims that the Convention is not a Convention that codifies legal norms and that the assertion that with the exception of Part XI, the Convention represents codification of customary law or reflects current international practice is wrong from the factual point of view and is legally ungrounded. The regime of transit passage through straits used for international navigation and the regime of archipelagic passage through sea lanes are two examples of the many new concepts embodied in the Convention.

The report of the UN Secretary General of 5 November 1992 maintained that the regime of transit passage as a whole has met with wide recognition in the international community and has become part of the practice of the states bordering on straits and states engaged in navigation. However, in effect only Australia [9], Great Britain, Papua New Guinea, the U.S. and France have fully agreed that transit passage is a customary law norm. Albania, Spain, the PRC, UAE and Peru openly refuse to recognize transits passage as such a norm. Iran, Morocco the UAE recognize only the right of innocent passage through straits covered by territorial waters [10]. Iran insists that the U.S., which is not a Party to the 1982 Convention, cannot avail itself of the conventional right of transit passage because it is not an effective norm of customary law [11].

***

One has to stress the paradoxical character of American policy in upholding the principle of free navigation, including the right of transit passage. In spite of the key role of the United States in world trade and economy and the ability to freely move armed forces, it is exposed to certain risks. The exercise of freedom of navigation may be used for illegal, unreported and unregulated harvesting, smuggling of drugs and arms, including WMD, illegal movement of people, including illegal migration and for acts of terrorism and piracy at sea. The use for these purposes of ships that do not comply with international requirements of ecological security poses a threat to the marine environment and its biodiversity, hence to ecological, resource and food security of coastal states or states bordering on straits.

The 1982 Convention offers some opportunities to control navigation in straits used for international navigation. Russia and the U.S. may designate sea lanes and traffic separation schemes (Article 41) subject to approval by the International Maritime Organization (IMO). The two states may take the following steps:

  • intensify port supervision;
  • introduce ship traffic control systems (STCS);
  • improve navigation and port infrastructure;
  • strengthen oil spillage control capability;
  • improve search and rescue capability;
  • promote cooperation between coast guard services;
  • harmonize the provisions of national law aimed at compliance with IMO conventions.
All these measures are researched in some detail under the Arctic Council projects concerning the future of navigation in the Arctic.

The most successful model of harmonizing positions of the interested parties concerning the navigation regime in the Bering Strait is the regime applied by three strait-bordering states – Indonesia, Malaysia and Singapore – to the Malacca and Singapore Straits.

This is the first precedent of the use of Article 42 of the 1982 Convention, which reads: "User States and States bordering a strait should by agreement cooperate: a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation; and b) for the prevention, reduction and control of pollution from ships." All the interested countries and players, including shipping companies, were involved in participation in and discussion of the regime. As a result, it has been fully endorsed by the IMO, including the holding of official conferences under its aegis. It envisages the functioning of a Forum for the discussion of all the current issues and exchange of information and a Fund that accumulates finances to ensure safe navigation and implement some projects to ensure security and protect the marine environment.

***

Even so, a number of problems remain outstanding and call for a thorough revision of the positions of the U.S. and Russia on navigation safety and protection of the marine environment in the Bering Strait and in Arctic waters in general.

First, the provisions of the 1982 Convention on protecting and preserving the marine environment do not apply to any warships, auxiliary naval ships and other vessels and aircraft belonging to a state or operated by it and used at a given time only for government non-commercial service (Article 236). Warships and civilian vessels in government service are merely obliged to keep to the sea lanes and traffic separation schemes. The International Convention on the Prevention of Pollution from Ships (MARPOL-73/78), the International Convention for Safety of Life at Sea (SOLAS-74) and others, as well as the Polar Code due to enter into force in 2017 apply only to commercial ships.

The growing interest of states in developing and exploitation of the Arctic Ocean spaces and resources raises the question of the extent to which Arctic countries are ready to take steps to introduce uniform standards of navigation in Arctic waters for commercial as well as government vessels.

Second, consistent U.S. interpretation of the right of transit passage through international straits for submarines in "normal mode" as exclusively in submerged position can readily be explained by the need to take into account military-strategic interests, including plans to deploy missile-carrying ships in various parts of the World Ocean. Nevertheless whether underwater passage through international straits is 100% legitimate is still a disputable question for the international expert community.

Given the interest in the Arctic on the part of naval forces of other states would not the introduction of the notification principle for underwater passage be more in line with the interests of Arctic states?

Third, the achievement of any long-term agreements on the Bering Strait again raises the issue of the legal status of the straits which are part of the Canadian NWP and the Russian NEP. The U.S. position on the issue is well known: it challenges the claims of Russia and Canada to establish straight baselines and spread the status of historical internal waters to areas through which NWP and NEP lanes pass. The Americans consider the straits of the Canadian Arctic archipelago and part of the Russian Arctic straits (Lapteva and Sannikova, New Siberian Islands) to be international waters and insist that the right of transit passage applies to them.

Under the first scenario no agreements between countries on the Bering Strait would alter the legal status of other Arctic straits. Like in the relations between the U.S. and Canada, each party will stick to its initial position, which will not affect the development of cooperation between them. Indeed it can already be stated that all the previous protests of the State Department and the U.S. Navy have been to a large extent concentrated on counteracting the policies of Russia and Canada in introducing restrictions only with regard to American warships and government ships used for noncommercial purposes. Although the United States disputes Canadian nature conservation laws (Arctic Waters Pollution Prevention Act, Canada Shipping Act), it is apparently prepared to agree that commercial ships flying the U.S. flag are obliged to comply with them. At the national level the U.S. itself comes out for tougher environmental rules in its coastal waters (witness the Oil Pollution Act, ОРА).

Under the second scenario the Arctic states, notably Russia, Canada and the U.S., initiate an international conference on Arctic shipping [12]. The conference would:

  • define more precisely the limits of the use of Article 234 (Ice Covered Areas of the 1982 Convention;
  • seal the status of various Arctic straits;
  • discuss the need to introduce mandatory piloting and decide on the practicability of spreading the status of Particularly Sensitive Sea Areas (PSSA) to their waters.
The event should involve all the participants in the Arctic Council and shipping companies. The outcome of the Conference could be a multilateral agreement sealing a specific regime of passage for various Arctic straits, including the Bering Strait that would correspond to the status of the Arctic region with its essentially semi-closed character and particular ecological vulnerability.


Back

Seven arguments
Why Shipping Regulations along Northern Sea Route Must be Distinct

Aleksandr Sergunin
Dr.sc.pol., SPbSU professor, RIAC expert
Valery Konyshev
Dr.sc.pol., SPbSU professor, RIAC expert
Russia's plan to revitalize the Northern Sea Route (NSR) and open it for international navigation does not just involve a number of infrastructural, technical, financial, economic and ecologic problems. Of no less importance are several emerging conflicts under international law outlined as follows:

1) Russia and other countries differ over the NSR international status. Russia's Federal Law of July 28, 2012 defines the Northern Sea Route as "a historic national transportation line of the Russian Federation" open to foreign vessels provided they observe the Navigation Rules set by Moscow for the NSR waters. Most of the states willing to use the NSR would prefer to see it internationalized, which means the withdrawal of the waterway from Russian jurisdiction and opening it up for unrestricted navigation. The United States has been especially insistent on the freedom of the sea, regarding this point as the basic tenet of its maritime strategy throughout history. The U.S. National Strategy for the Arctic Region of 2013 specifies rigorous observance of this precept for the Arctic Ocean.

2) Opinions vary over the international legal status of the NSR waters (see Fig. 1). According to the Russian Law on the Northern Sea Route, "the Northern Sea Route area encompasses the waters adjacent to the northern coast of the Russian Federation including the inland and territorial seas, the contiguous zone and the exclusive economic zone (EEZ) of the Russian Federation…". While nobody questions Russia's prerogative over the inland and territorial seas, certain states reject Moscow's right to establish rules for navigation in the contiguous zone and the EEZ.

For example, some countries refute the requirements of the 2013 Russian Federation Rules of Navigation in the Water Area of the Northern Sea Route, including the need for a passage permit issued by the NSR Administration, as well as compulsory icebreaker escort and pilotage in certain cases. They reject the validity of Russia's references to the UN Convention on the Law of the Sea of 1982 (UNCLOS) that entitles coastal states to special rights toward the contiguous zone and the EEZ. According to UNCLOS Article 33, "in a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea".

Coastal states also have a right to establish rules for the development and protection of mineral resources within their EEZs and on the continental shelf, as well as for safe navigation in these waters. They are also entitled to pursue violating foreign vessels beyond their inland and territorial seas, the contiguous zone, the EEZ and the continental shelf if the pursuit is undertaken continuously (UNCLOS Article 111). To this end, in September 2013, Russia absolutely legitimately detained the Greenpeace ship Arctic Sunrise which trespassed on NSR waters during a protest action at the Prirazlomnaya platform in the Pechora Sea.
Figure 1.
The Nithern
Sea Route
Waters
3) Legal problems have also arisen because the NSR runs through numerous straits that have varying international statuses, similar to other stretches of the route. Some countries, for example, the United States, believe that the straits must be given the status of a global commons to provide all ships with the right of free passage. Moscow objects to a loose interpretation of the sea law principles and norms. The internationalization of the sea straits is possible only if this status emerged historically and has been legitimized by international bilateral and multilateral agreements. International law says that straits connecting open seas and having global waterway significance must be open for general use. The passage of merchant vessels and warships through these straits cannot be restricted because their legal regime is based on the freedom of the sea, with examples including the straits of Gibraltar, Magellan, Taiwan, Malacca, Bab el Mandeb, etc.

In addition, there are straits that offer the only suitable passage from closed seas into open waters, their specifics lying in providing passage to the coasts of a restricted number of states. The Black Sea straits open the way to Bulgaria, Georgia, Russia, Romania, Turkey and Ukraine; the Baltic straits (the Sound, the Great and Little Belt) lead to Denmark, Germany, Poland, three Baltic countries, Russia, Finland and Sweden. The regime for their governance has been established by multilateral conventions, i.e. the Montreux Convention of 1936 and the Copenhagen Convention of 1857, which fail to endow foreign ships absolute freedom of navigation, since they have to observe certain requirements imposed by coastal states for sanitary control, tonnage, time of stay in inland seas, etc.

None of these cases are applicable to the NSR waters. Russian legal doctrine qualifies the Kara, Laptev, East Siberian and Chukchi (within the Russian sector limits) seas as inland waters because they historically belong to Russia and are regulated by inland sea rules. This type of straits has never been covered by international conventions, and beginning from the Soviet era, navigation has been controlled there by national laws and norms, which implies the lack of grounds for extending the freedom of the seas to the NSR waters.

4) Certain foreign experts on the law of the sea believe that the NSR falls under the right of innocent passage, while Russia is obstructing the realization of this right for foreign vessels.

The UNCLOS actually specifies innocent passage under its Article 18: "Passage means navigation through the territorial sea for the purpose of: (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility", stressing that "the passage shall be continuous and expeditious." Innocent passage can include "stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress."

In other words, a foreign ship claiming the right of innocent passage across a territorial sea must have substantial reasons for doing so. And the UNCLOS does provide a detailed description of the terms of innocent passage conditioned by a concern over security of a coastal state. Moreover, the document enables that coastal states should regulate innocent passage. According to Article 21, "The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic; (b) the protection of navigational aids and facilities and other facilities or installations; (c) the protection of cables and pipelines; (d) the conservation of the living resources of the sea; (e) the prevention of infringement of the fisheries laws and regulations of the coastal State; (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; (g) marine scientific research and hydrographic surveys; (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State." The text underlines that "foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea".

As per Article 25, "the coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises".

So far as the NSR waters incorporate unique natural complexes and fragile ecosystems, as well as critical industrial and military facilities, only Russia has have legal grounds to issue laws regulating navigation in these waters.

5) Some states object to Russia's requirements for icebreaker and pilotage fees in the NSR waters. They insist on their right to independently decide whether they need the above services, while Russia has no right to impose such rules, referring to the UNCLOS Article 26, which says that "No charge may be levied upon foreign ships by reason only of their passage through the territorial sea".

In its turn, Moscow quotes its right to establish special navigation rules for foreign ships in view of safety and ecology considerations. Far from safe without icebreaking and pilotage even in summer, the NSR waters appear to offer exactly this type of case in question, providing Moscow with an opportunity to use another part of Article 26, which stipulates that "Charges may be levied upon a foreign ship passing through the territorial sea as payment only for specific services rendered to the ship".

6) One more point of dispute lies in UNCLOS Article 234 that runs as follows: "Coastal States have the right 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, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence".

Russia and Canada have employed this article to establish navigation rules in the NSR and the Northwest Passage (NWP), while other countries, first of all the U.S.A., insist that the two coastal states are abusing their rights and violating the principle of free navigation.

The United States and Canada are engaged in a historic dispute over the NWP, with Washington regarding it as an international strait. Proceeding from this point, in 1969 Americans sent an oil tanker there and in 1985, its Coast Guard icebreaker Polar Sea without notifying the Canadian side.

Canada responded with the Arctic Waters Pollution Prevention Act of 1970 that provided the first definition of Canadian Arctic waters and described the geographical area where placing of any kind of waste was banned. In 1972, Ottawa issued its Shipping Safety Control Zones Order that established 16 special zones with appropriate requirements imposed on ships depending on their class and specifications. The same year saw the Arctic Shipping Pollution Prevention Regulations that prohibited the discharge of fuel and oil substances. In 1977, Canadians introduced the NORDREG vessel traffic reporting system that in 2010 became obligatory for travelling in the NWP.

It was Canada that initiated and promoted Article 234 of the UNCLOS on special navigation rules for ice-covered areas. In 1985, Ottawa adopted the updated version of the Arctic Shipping Pollution Prevention Regulations and established direct basic lines around the Canadian Arctic Archipelago. In 1996, the Oceans Act came into force to allow Canada to expand its jurisdiction over several marine areas including Arctic waters.

Although Ottawa had been one of the most ardent backers of the 1982 UNCLOS, it ratified the document only in 2003. At that, Canada followed Russia in reserving the right to suspend decisions on disputes related to the interpretation or application of Articles 15, 74 and 83 which deal with the delimitation of sea borders, EEZs, historic bays and legal foundations.

According to international experts, in the decades to come, the multi-year ice in the Arctic waters of the NSR and NWP may melt, which would deprive Russia and Canada of the legal grounds to refer to Article 234 of the UNCLOS. However, Russian and Canadian specialists remain skeptical that the routes will never be free of ice and icebergs.

7) Russia and other littoral Arctic countries are in for severe headaches from foreign warships that possess sovereign immunity both in high and territorial seas. Even if a warship violates the rules for passage through a territorial sea, the coastal state can only demand its immediate withdrawal without damage to its immunity (UNCLOS Article 30). A warship is virtually exempt from liability for polluting the marine environment (Article 236), with legal responsibility placed on the flag state (Article 31), which dilutes the responsibility of warship captains toward marine ecology. The document only vaguely mentions that such vessels and aircraft should act "in a manner consistent, so far as is reasonable and practicable, with this Convention" (Article 236).

In May 2015, the International Maritime Organization, a UN branch, completed its Polar Code planned for to come into effect in 2017. The document tightens the requirements for vessels operating in the Arctic, prohibits the discharge of oil and oil products into the water, and limits noxious emissions into the marine environment, which appears to create an opportunity for eliminating conflicts in international law and effectively adapting it to sailing in Arctic waters.

Back

Icebreaker assistance in Northern Sea Route waters
for safe navigation of vessels under foreign flags:
legal framework and established practices

Vladimir Kotlyar
Doctor of law, Envoy Extraordinary and Minister Plenipotentiary, member of International Law Council, MFA, Russia
The Northern Sea Route runs along Russia's northern borders in the Arctic Ocean waters – the Barents, Kara, Laptev, East Siberian, Chukchi and Bering seas – linking Russia's European and Far Eastern ports and estuaries of navigable rivers in Siberia into a single national transport system in the Arctic. The navigable length of inland waterways connected to the Northern Sea Route totals 37,000km. The strategy for developing the Arctic zone of the Russian Federation and providing national security for the period up to 2020, as approved by Russian President Vladimir Putin on February 20, 2013, defines the Northern Sea Route as a "single national transport artery of Russia in the Arctic." The document (see Clause 12) provides for development of the "single Arctic transport system of the Russian Federation as a national sea route suitable for year-round navigation, including the Northern Sea Route and meridional river and rail communications gravitating towards it, as well as an airport network."

Meanwhile, the vision of the Northern Sea Route as a national sea corridor does not preclude it from being open to vessels sailing under foreign flags, subject to compliance with Russian laws and established rules. Foreign ship operators' interest in the Northern Sea Route can be linked primarily to its being almost half the length of other sea routes from Europe to the Far East: the distance between St. Petersburg and Vladivostok via the Northern Sea Route is 14,280km, compared to 23,200km via the Suez Canal and 29,400km round the Cape of Good Hope. Using the Northern Sea Route to ship natural gas from Hammerfest (Norway) to Japan in November 2012, Norwegians saved 20 days and tens of thousands of dollars in operating costs. The length of the main ice-packed stretch of the Northern Sea Route, from the straits in the Novaya Zemlya archipelago and the Provideniya Port, is 5610km. Meanwhile, long and severe winters coupled with short and cool summers create difficult ice conditions for navigation in Arctic seas, this serving as the main obstacle to shipping on lengthy stretches of the route. Most difficulties are posed by regions with large quantities of heavy ice, which, until recently, did not melt completely even in the warmest months (Taymyr and Ayon ice massifs). Navigation through heavy ice is possible only with the help of icebreakers.

The global warming observed over recent years has drastically reduced the Arctic ice cap in general and along the Northern Sea Route in particular. For instance, in August 2012 the total ice extent equaled 54 per cent of the same figures for 1981–2010, with a considerable decline in ice thickness as well. According to NASA, the maximum ice extent in the Arctic measured 14,540,000km2the lowest showing in the history of satellite observation, and 100,000km2 below that of 2011.

Meanwhile, scientists are split on the future of the Earth's ice cap, since the climate history of our planet, the Arctic region included, shows alternating periods of warming and cooling. As such, 2008 saw the extent of the ice pack in the Arctic seas and the central Arctic Ocean basin suddenly expand by 1,000,000 sq. km compared to 2007, only to melt down again the following year. Consequently, a number of scientists believe that the ongoing global warming and Arctic ice melting do not necessarily mean a final climate change with a cold spell likely to set in at any time. In 2011–2013, some Russian and Western researchers suggested only first-year ice will be covering the seas along the Northern Sea Route, meaning that the navigation season can be extended to five months (from late July to December). Some of them even predicted that the ice cap would completely disappear by 2020. Meanwhile, subsequent observations conducted by scientists from the Russian Academy of Sciences and European researches have shown that, by 2013, the extent and thickness of Arctic ice had increased by a factor of 1.5, with its volume reaching 9,000km3. Meanwhile, it remained only half that in the 1980s (roughly 20,000km3 at the time) (1, 2, 3, 4, 5, 6) [1].

Scientists have grown increasingly skeptical about further global warming since a statement made by head of Intergovernmental Panel on Climate Change Rajendra Pachauri and the British Met Office released on February 22, 2013 indicating that global temperatures had not been rising for 17 years. It also stated, however, that a final conclusion as to whether the global warming had stopped could not be made for another 30–40 years. Conversely, the 2014 report by the IPCC said that global warming was real and irreversible and that warming was set to double in speed in the Arctic compared to world average rates. At the same time, the unpredictable Arctic climate and drastic changes in weather conditions typical of the Arctic regions will often result in ice-free corridors covering quickly with floating ice. This being the case, Russian representatives at international forums have consistently warned against the illusion that unassisted passage along the Northern Sea Route might become feasible.

The United Nations Convention on the Law of the Sea of 1982 (Article 234) endows coastal states with the "right 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 where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstruction or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance."

On these grounds, in July 2012, the Federal Assembly of the Russian Federation adopted Law No. 132-FZ "On Amendments to Certain Legislative Acts of the Russian Federation Pertaining to State Regulation of Commercial Navigation Through the Waters of the Northern Sea Route", effective as of January 2013, which introduced a number of modifications to the current law. Specifically, the new version of Article 14 of Federal Law No. 155-FZ "On Inland Sea Waters, Territorial Waters and the Contiguous Zone of the Russian Federation" reads: "Navigation through the waters of the Northern Sea Route, a long-established traditional national transportation line of the Russian Federation, will be subject to the generally recognized principles and rules of international law, international treaties of the Russian Federation, this Federal Law, other federal laws and other regulations enacted in compliance herewith". Article 4, Clause 1 of Federal Law No. 147-FZ dated August 17, 1995 "On Natural Monopolies" and Articles 2 and 5 of the Merchant Shipping Code of the Russian Federation was supplemented with the terms "icebreaker and ice escort" applicable to the Northern Sea Route waters.

A new article (5.1) was added to the Merchant Shipping Code to read as follows:

"1. The waters of the Northern Sea Route are to be construed as the water area adjacent to the northern coast of the Russian Federation, including the inland sea waters, territorial sea, contiguous zone and the exclusive economic zone of the Russian Federation, bounded in the east by the maritime boundary with the United States of America and the Cape Dezhnev parallel in the Bering Strait, and in the west by the Cape Zhelaniya meridian down to the Novaya Zemlya archipelago, the eastern coastline of the Novaya Zemlya archipelago and the western borders of the Matochkin, Kara and Yugorsky Straits.

2. The Northern Sea Route navigation rules, as approved by the federal executive body authorized by the Government of the Russian Federation, apply to ensure the safety of passage and to prevent, reduce and control marine pollution by vessels, and will incorporate:

1) a procedure for organizing navigation by vessels in the waters of the Northern Sea Route;

2) rules for icebreaker escort in the Northern Sea Route waters;

3) rules for ice piloting in the Northern Sea Route waters;

4) rules for escorting vessels along shipping lanes of the Northern Sea Route:

5) a provision on navigation, hydrographic and hydrometeorological support for vessels navigating through the Northern Sea Route waters;

6) rules for radio communications when navigating in the Northern Sea Route waters;

7) other provisions regulating organization of navigation in the Northern Sea Route waters.

3. Organization of navigation in the waters of the Northern Sea Route will be the responsibility of the Northern Sea Route administration established as a federal government agency with the following major functions:

1) receiving and processing applications for navigation permits for vessels to operate in the Northern Sea Route waters and issuing navigation permits for vessels to operate in the Northern Sea Route waters;

2) monitoring hydrometeorological, ice and navigation conditions in the Northern Sea Route waters;

3) coordinating deployment of navigation equipment and designation of the specific regions for hydrographic surveying in the Northern Sea Route waters;

4) providing information services (in relation to the Northern Sea Route waters) in the area of organization of navigation and requirements on navigation safety, navigation and hydrographic support for navigation, and icebreaker escort;

5) working out routing recommendations for vessels and recommendations on use of icebreaker fleet vessels in the Northern Sea Route waters, subject to hydrometeorological, ice and navigation conditions in said waters;

6) rendering assistance in organizing search and rescue operations in the Northern Sea Route waters;

7) issuing certificates authorizing persons responsible for ice piloting of vessels to perform ice piloting in the Northern Sea Route waters;

8) providing assistance to environmental remediation operations addressing pollution by vessels carrying hazardous and harmful substances, sewage waters or waste.

4. Navigation permits for vessels to operate in the Northern Sea Route waters as described in clause 3, sub-clause 1 of this Article will only be issued provided that the vessel meets the requirements for safe navigation and environmental protection against marine pollution by vessels (in relation to the Northern Sea Route waters) as determined by international treaties of the Russian Federation, the law of the Russian Federation, the navigation rules of the Northern Sea Route waters referred to in clause 2 hereof, as well as subject to provision of documents confirming insurance of or any other financial security for civil liability for pollution damage or any other harm caused by a vessel in compliance with international treaties of the Russian Federation and laws of the Russian Federation.

5. The fees for icebreaker escort and ice piloting services in the Northern Sea Route waters will be calculated pursuant to the law of the Russian Federation on natural monopolies based on the vessel's tonnage and ice class, the escort distance and navigation period.

The fees for icebreaker escort and ice piloting services in the Northern Sea Route waters will be changed depending on the scope of the services actually rendered".

In March 2013, the Northern Sea Route Administration was reinstated for the purposes of organizing navigation, ensuring navigation safety and protection against marine pollution by vessels in the Northern Sea Route waters. Its duties include ongoing monitoring of hydrometeorological, ice and navigation conditions in the waters in question; assistance in organizing and holding search and rescue operations and environmental remediation operations to deal with pollution with hazardous and harmful substances, sewage water or waste from vessels; working out routing recommendations and recommendations on use of ice fleet vessels in the Nothern Sea Route waters with due regard for the hydrometeorological, ice and navigation conditions, etc.

In April 2013, in pursuance of Law No. 132-FZ, the Ministry of Transport of the Russian Federation approved Northern Sea Route Navigation Rules essentially establishing the regulatory authorization procedure for Russian and foreign vessels. Ship operators or captains intending to follow the Northern Sea Route must apply to the Northern Sea Route Administration for a navigation permit at least 15 days before entering the Northern Sea Route waters, the permit to be issued for a specific period. When passing through the Northern Sea Route, Russian and foreign vessels are expected to meet special ice-reinforcement requirements and prove their insurance coverage. Furthermore, they are obliged to give the Northern Sea Route Administration 72-hours' notice of their approach to the Northern Sea Route waters and subsequently report daily on the vessel's progress, condition and the actual time of crossing the boundary of the Northern Sea Route waters. In accordance with the Rules, navigation through the Northern Sea Route waters is only possible with obligatory piloting (icebreaker escort, ice piloting) support as per the navigation permits. The Northern Sea Route Administration issues the permits, as well as piloting certificates for operating in the Northern Sea Route waters, after processing applications. As of July 31, 2015, the Northern Sea Route Administration had issued 547 permits, including 84 to vessels under foreign flags, and refused entrance to 7 vessels, including 2 foreign vessels (sailing under the flags of the People's Republic of China and Antigua and Barbuda) [2].

Guided by the Northern Sea Route Navigation Rules, the Northern Sea Route Administration may, in certain cases, grant passage to a vessel without icebreaker escort if its ice reinforcement class matches the specific ice conditions during its passage.

To escort sea tankers with a water draft of more than 12 meters, a new route to the north of the New Siberian Islands (instead of navigating the shallow Sannikov Strait) has been opened. Specifically, the Vladimir Tikhonov tanker carrying 120,000 tons of gas condensate successfully completed the route escorted by the 50 Let Pobedy and Yamal nuclear-powered icebreakers, thereby becoming the largest vessel yet (with its deadweight of 160,000 tons) to navigate the Northern Sea Route waters. In the same shipping season, the Yamal and Taymyr icebreakers led the Perseverance tanker carrying 60 tons of gas condensate down the same route [3].

According to the Northern Sea Route Administration, the quality of Russian icebreaker escort services has not, so far, drawn any complaints from foreign ship captains. Yet the waiting period is sometimes too long, to the natural discontent of ship operators, since it brings into question the Northern Sea Route's major advantage – faster passage and lower operating costs. As it happens, during the 2013 shipping season, 36 out of 71 escorted vessels (50 per cent) had to wait for their turn. As 40 out of 71 vessels used the Northern Sea Route for transit passage, 18 of them (or 42 per cent) waited for their escorts for 1 to 6 days. With respect to coastal traffic (without full Northern Sea Route transit), 18 out of 31 vessels (58 per cent) waited for their escort for 1–12 days. All in all, losses from escort delays totaled 125 vessel-days during the 2013 shipping season. Once the predicted rise in Northern Sea Route shipments happens, the figures are likely to rise considerably.

At this point, only four of Russia's largest nuclear-powered icebreakers are in service, with one more on standby, but their technological capacity is almost at an end. It is possible that only two of them will remain in operation by 2017. In this context, the Russian government is taking steps to increase its Arctic icebreaker fleet. In November 2013, construction of a new generation nuclear-powered icebreaker, the LK-60 (Project 22220), to a cost of RUB 30bn was launched at the St. Petersburg-based Baltic Shipyard. According to the plan, it is to be commissioned in 2017. Designed to cut through ice up to 4.5 meters thick, clear a path 75 meters wide that would not need to be broadened in just one passage, the icebreaker will be able to ensure year-round navigation via the Northern Sea Route. In 2015, a second icebreaker was launched into construction and work on yet a third of the series will start in 2016.

To improve the organization of icebreaker escort via the Northern Sea Route, the experts working for the Northern Sea Route Administration consider it advisable to supplement Article 5.1, Clause 3 of the Merchant Shipping Code of the Russian Federation (listing the Northern Sea Route Administration's primary functions) as follows:

2.1. Subject to the hydrometeorological, ice and navigation situation, ice reinforcement class and crew training:

– decision-making on admitting specific vessels to certain stretches of the Northern Sea Route;

– decision-making on obligatory icebreaker assistance along certain stretches;

– decision-making on obligatory ice piloting support for vessels;

– working out vessel shipping routes;

– escorting vessels on their routes in the Northern Sea Route waters.

2.2. Coordination of deployment of the icebreaker fleet in the Northern Sea Route waters.

2.3. Providing information to icebreakers and vessels on hydrometeorological and ice conditions relevant to their planned shipping route.

2.4. Monitoring icebreaker and vessel movement in the Northern Sea Route waters.

2.5. Maintaining contact with icebreakers and vessels.

2.6. Arranging for safe towing of damaged ships out of the Northern Sea Route waters.

2.7. Arranging for safe withdrawal of ships in breach of the navigation rules from the Northern Sea Route waters.

2.8. Analyzing ice-related damage and working out proposals to prevent it.

Meanwhile, as Law No. 132-FZ clearly indicates, the Russian Northern Sea Route Navigation Rules are only valid within the external boundaries of the exclusive economic zone of Russia in the Arctic Ocean, which extends 200 nautical miles from the original territorial sea baselines. This is in line with Articles 57 and 234 of the United Nations Convention on the Law of the Sea of 1982. This appears to be why, in recent years, icebreakers sailing under the flags of the People's Republic of China, Federal Republic of Germany, Sweden and Finland have, in some cases, been seen on non-escort transits in regions beyond the northern borders of Russia's exclusive economic zone (without escorting any transport vessels). Yet, to offer ice escort services to transport ships in these northern regions, it takes not only heavy-duty nuclear-powered icebreakers, the likes of which only Russia currently has and will have in the mid-term, but also transport ships with a significantly higher ice reinforcement class.

It is now difficult to predict further dynamics of climatic change on Earth. As noted above, there is no consensus among scientists on the matter. Even so, should natural and material conditions arise that foster ice escorting services by foreign icebreakers, the Arctic Council would appear to be the forum best suited to resolving the issue, having repeatedly stated that it is capable of dealing with any Arctic problem.


1. See also the addresses by deputy general director, head of security at Sovcomflot Mikhail Suslin; head of the Atomflot Office in Moscow Stanislav Golovinskiy; corresponding member of the Russian Academy of Sciences, deputy director of the Institute of Oil and Gas Studies of the Russian Academy of Sciences Vasily Bogoyavlensky, released as materials of the international conference: "The Arctic: Region of development and cooperation", Moscow, RIAC, December 2–3, 2013 .

2. During the 2014 shipping season, 631 navigation permits, including to 112 foreign vessels, and 30 refusals were issued, including to 16 foreign ships. For reference: 2013 saw 536 permits during the navigation season, including 120 ships sailing under foreign flags, against 83 refusals, including 18 to foreign ships.

3. V. Bogoyavlensky. Oil and Gas Transportation Systems in the Arctic. Arctic Herald. 2014. No. 2(10). P. 65.

Back

The Use of Icebreakers
on the Northern Sea Route

Legal Framework and Practice

Valery Mikheev
PhD in Law, Acting rector of Russian State Hydrometeorological University
The Arctic is a key strategic region, a zone of interests for Arctic nations such as Russia, the United States, Canada, Denmark, Sweden, Norway, Finland and Iceland, as well as for the European Union and the countries of Southeast Asia. It is attractive in terms of its offshore oil and gas development potential and the possibility of shortening transcontinental traffic routes.

The Arctic region is a priority area for Russian maritime activities. The state programme "Shipbuilding Development for 2013–2030" (2012) has set two objectives as part of the main priorities of Russia's state policy:

– the effective and environmentally friendly development of offshore hydrocarbon fields on the Russian Arctic shelf;

– ensuring the effective use of the Northern Sea Route and its transformation into an international transit corridor.

The Arctic Circle takes up around 6 per cent of the Earth's surface area. Yet the Arctic continental shelf accounts for around 13 per cent of the world's undiscovered oil reserves and 30 per cent of its gas reserves (according to 2008 US Geological Survey estimates).

More than 95 per cent of Russia's platinum-group metals, 90 per cent of its nickel and cobalt, and 60 per cent of its copper, as well as almost all of its explored titanium, tin, antimony, apatite, phlogopite, vermiculite, barium sulphate and around half of all its coal resources are concentrated in the Arctic zone of the Russian Federation. The subsurface Arctic zone contains 70 to 90 per cent of Russia's gold, diamond, lead, bauxite and other mineral reserves.

The Northern Sea Route is the main shipping artery of the Russian Artic, and the basis for the development of the Arctic transportation system. It is the shortest sea route connecting European Russia with the Far East, runs through the rivers of the Arctic Ocean (the Kara, Laptev, East Siberian and Chukchi seas) and part of the Pacific Ocean (the Bearing Sea). Administratively, the Northern Sea Route encompasses the area from the western entrances to the Straits of Novaya Zemlya and the meridian passing to the north of Cape Zhelaniya to the Bering Strait in the east at the 66th parallel north and the 168°58'37"W meridian. The Northern Sea Route is roughly 5600km in length from the Kara Strait to Providence Bay. The distance from St. Petersburg to Vladivostok along the Northern Sea Route is more than 14,000km, and upwards of 23,000km via the Suez Canal.

The Northern Sea Route serves ports in the Arctic Ocean, as well as in the major Siberian rivers (importing fuel, equipment and food, and exporting timber and minerals). The main ports along the Northern Sea Route are in Igarka, Dudinka, Dikson, Tiksi, Pevek and Providence Bay.

In accordance with the Russian Shipbuilding Development doctrine for the period until 2030 (in its new edition dated July 26), Russia's national interests with regard to the Northern Sea Route should be guaranteed by centralized management of the transportation system, icebreaking services, and providing fair and equal access to interested carriers, including international carriers.

Organizationally, the Northern Sea Route is divided as follows: the western sector of the Arctic, from Murmansk to Dudinka, is served by Murmansk Shipping Company icebreakers; and the eastern sector, from Dudinka to Chukotka, is served by Far East Shipping Company icebreakers.

In 2010, four vessels crossed the Northern Sea Route. By 2011, that number had increased to 34. Hydrocarbons continued to be transported to the Far East, using large-capacity tankers with full loads along the high-latitude route in the New Siberian Islands. Iron ore concentrate continued to be transported from Murmansk and Norway. Russia's largest vessel, the Vladimir Tikhonov tanker (the Sovcomflot-produced ship has a deadweight of 162,000 tons), crossed the high-latitude route from west to east, delivering 120,800 tonnes of gas condensate. Refrigerated fish products are now shipped along the Northern Sea Route, from the Far East to St. Petersburg (four such deliveries have been made so far). There are plans to transport fertilizer from the Kola Peninsula and non-ferrous metals from Norilsk to Asia-Pacific countries via the Northern Sea Route (from west to east). Meanwhile, urea is expected to be transported in the opposite direction from China, as are copper-nickel ore from the Kamchatka Peninsula (to Dudinka), consumer goods, electronics, fish products, etc.

Forty-six vessels completed transit runs along the Northern Sea Route in 2012. The number rose to 71 in 2013, before dropping to 53 in 2014. Freight volume decreased by more than 76 per cent in this period, from 1,355,897 tons in 2013 to 74,000 tons in 2014. According to experts, there are a number of reasons for this.

First, Northern Sea Route development in 2015 has to a large extent been determined by the situation on the oil market. Falling oil prices have meant that oil production in the Arctic has become unprofitable. Middle Eastern oil is a more viable alternative – it is easier to produce and costs less. The short Arctic route could make the navigational risks worthwhile if the oil was expensive. But the price of oil is low right now, and transporting freight along the Indian Ocean is more cost effective. And we are not just talking about oil from the Middle East. Everything that can be found in the Arctic can also be found elsewhere, in more accessible areas.

Second, the anti-Russian sanctions have played a large role in diminishing the prestige of the Northern Sea Route. ExxonMobil, for example, has put a halt to its cooperation with the Russian companies Gazprom, Gazprom Neft, Lukoil, Surgutneftegas and Rosneft. Foreign companies involved in the construction of ships for the Northern Sea Route have also fallen victim to the sanctions.

Third, during the second half of 2014, doubts started to arise as to the ability of Russia to ensure the functioning of the Northern Sea Route from a financial standpoint.

There are two factors that determine the level of interest in the Northern Sea Route among foreign shipping companies and businesspeople.

First. The Northern Sea Route could become more profitable than alternative shipments carried out between ports in Europe, the Far East and North America via the Suez or Panama canals. The route from Murmansk to Yokohama via the Suez Canal is 12,840 nautical miles, or 5770 nautical miles if you travel via the Northern Sea Route. The Rotterdam–Yokohama route along the Indian Ocean is 11,200 nautical miles. The distance is reduced by 3900 nautical miles, or 34 per cent, if you use the Northern Sea Route. This would cut travel time from 33 days to 20 days and therefore reduce shipping costs. Second. The Northern Sea Route is attractive to foreign parties as an artery for transporting minerals from Russia's Arctic regions, which make up 35 per cent of the world's oil and gas reserves. Transporting Russian oil and gas by sea may turn out to be more advantageous than building gas or oil pipelines. What is more, the Northern Sea Route can be used to transport mineral fertilizers from the Kola Peninsula to East Asia and China.

On the whole, foreign ship owners recognize the potential of the Northern Sea Route, but they believe that it will take years before the route becomes commercially viable. The heads of shipping companies fear that sudden changes in the weather on Northern Sea Route waters could cause their ships to arrive late at their destination (in which case they would have to pay a penalty), or force them to engage the help of icebreakers (which in a force majeure situation would increase the cost of freight). Atmospheric instability, drifting icebergs and first-year ice fields which can be just as dangerous to the hull of a ship, are also risk factors. It is still unclear whether the climate changes taking place in the Arctic right now are long-term in nature, or whether the current cycle of warming will give way to another period of cooling in 10 to 20 years' time (which would make navigating the Northern Sea Route more difficult). If the warming does continue, then the melting ice in the region, according to scientists, will have negative consequences as well. In particular, there will be an increased risk of strong winds and extreme waves. Icebergs will form and the Russian shores will suffer increased erosion.

The Strategy for the Socioeconomic Development of Siberia until 2020 adopted in 2010 notes that the effective use of Northern Sea Route resources is a key factor in the successful economic development of Siberia.

The new Rules of Navigation in the Water Area of the Northern Sea Route approved by order of the Ministry of Transport of the Russian Federation on January 17, 2013, replacing the existing rules from 1990, were developed in accordance with paragraphs 2 and 4 of Federal Law No. 81-FZ "Merchant Shipping Code of the Russian Federation" dated April 30, 1999 and Paragraph 5.2.53.12 of the Statute on the Ministry of Transport of the Russian Federation dated July 30, 2004. The Rules set out the procedure for navigating Northern Sea Route waters, icebreaker regulations; regulations for piloting ships along the Northern Sea Route; provisions on the navigational, hydrographic and hydro-meteorological support for vessels; the rules for communicating by radio when navigating vessels; maritime safety requirements and requirements on the protection of the marine environment from pollution from ships, etc.

The Northern Sea Route Administration (hereinafter the Administration) has been tasked with ensuring compliance with the Rules of Navigation. It was set up as a Federal state Institution by Decree of the Government of the Russian Federation on March 15, 2013 and in accordance with Paragraph 3 Article 5 of the Merchant Shipping Code. Its functions include ensuring the safety of maritime navigation and protecting the Northern Sea Route's marine environment from pollution from ships.

A licensing procedure is in effect for vessels travelling across Northern Sea Route waters. The general prerequisites for admission are compliance with the construction, equipment and logistical requirements for ships travelling along the Northern Sea Route. Vessels that do not have an insurance certificate or other proof of financial liability on the part of the ship owner for damage caused to the marine environment on board are not allowed to travel on the Northern Sea Route. Applications for authorization must be filed (on the internet) no earlier than 120 days, and no later than 15 days, prior to the date that the vessel is expected to enter Northern Sea Route waters. Ships are not required to be inspected before they are scheduled to set sail. Information about the need for icebreaker assistance in light, medium and heavy conditions is indicated in the authorization delivered by the Administration (Paragraph 10 Subparagraph 6 of the Rules of Navigation in the Water Area of the Northern Sea Route.

The official website of the Federal Marine and River Transport Agency contains an application form on the readiness of a ship to enter Northern Sea Route waters. Once the application has been reviewed a decision is made with regard to the ship's suitability for sailing in Arctic conditions. At the same time, the ship is assessed in terms of protecting Arctic ecosystems. A necessary element of navigating in Arctic conditions is icebreaking support and pilotage. According to the Rules, the costs of icebreaking support and pilotage services is determined by the legislation on natural monopolies. It should be emphasized that no fees are charged for transiting across the Northern Sea Route. Rather, fees are charged based on the services actually rendered, taking into account the class of the ship, its capacity, the distance travelled and the time at sea.

As for exercising state control over foreign vessels sailing along the Northern Sea Route, the federal executive authority in charge of security, together with the federal executive authority in charge of defence, and the federal executive authority in charge of transport, can terminate the rights of a foreign vessel if it is not in compliance with Russian security requirements, is not properly equipped, or if it is deemed unsuitable to sail in icy conditions. The decision can be made to provide pilotage support to foreign vessels in the relevant region and in the correct amount.

The list of seaports open to foreign vessels is published in the trade journal Izveshcheniya moreplavatelyam. The criminal, civil and administrative codes of the Russian Federation apply to all foreign vessels, passengers and crew members for the period during which the vessel is docked at a Russian port.

In 2014, more than 600 foreign ships crossed the Northern Sea Route along Russian territorial waters. In 2012, that number was just three.

Let us take a look at the acceptance and refusal statistics for 2013/2014:

– applications received: 718/644;

– permits granted: 635/614, of which 127/109 were for foreign ships (20 per cent/18 per cent);

– refusals: 83/30;

– subsequent refusals: 18 (3.5 per cent) / 7 (1 per cent).

According to the Russian Maritime Register of Shipping, transport ships are divided into two categories depending on the ice region: 1) Arctic ships, which are allowed to sail in the Bering, Kara, Laptev, East Siberian and Chukchi seas; 2) non-Arctic ships, which are allowed to sail in non-Arctic freezing seas. In addition, the Russian Maritime Register of Shipping has allocated two more categories of vessels: icebreakers and ice-class tug boats.

Ice-class vessels are primarily designed to navigate through ice-covered waters, including moving in the lanes between ice floes and negotiating cracks in ice fields and areas of rather thin solid ice. A secondary purpose of ice-class vessels is to navigate in ice broken up by icebreakers.

Ice-class ships are divided into nine categories depending on their purpose and design.

Ice-class ships that comply will all the relevant requirements set out in the Rules are given one of the following signs denoting the ice strengthening category, which is put next to the main class symbol: Ice1 (LU1), Ice2 (LU2), Ice3 (LU3), Arc4 (LU4), Arc5 (LU5), Arc6 (LU6), Arc7 (LU7), Arc8 (LU8) and Arc9 (LU9). The designations in brackets were used until 2007.

The category Ice1 applies to vessels that can only sail in freezing non-Arctic seas (non-Arctic vessels). The conditions for these ships are set by the Russian Maritime Register of Shipping.

The categories Arc4–Arc9 apply to vessels intended for Arctic seas (Arctic vessels). The Russian Maritime Register of Shipping sets the restrictions for the independent sailing of these ships on ice.

The basis for save navigation in icy conditions along the Northern Sea Route and its year-round operation is a powerful icebreaker fleet. Icebreakers are specialized vessels designed to carry out various kinds of icebreaking operations: providing safe waterways through ice for other ships, negotiating ice bridges, laying canals, towing, rescuing ships from the ice, and rescue operations.

At the present time, 10 liner, 6 nuclear- and 4 diesel-powered icebreakers operate on Northern Sea Route waters.

The development of Russia's icebreaker fleet is carried out under federal target programmes. The nuclear-powered fleet is expected to be expanded to include double-draft icebreakers. A double-draft universal nuclear-powered icebreaker with a variable draft will be produced for the first time. It will have two working drafts, one 10.5 metres and the other 8.5 metres. This means that it will be able to operate on open waters as well as in shallow coastal areas and estuaries. It should be noted that diesel-electric icebreakers with a power output similar to that of nuclear-powered icebreakers (55 MW) would burn around 300 tons of fossil fuels per day, polluting the air basin. Independent navigation requires up to 20,000 tons of fuel for a two-month journey. And this would be with a draft of 12–13 metres, which would mean that it could not operate in the relatively shallow Arctic waters. Fully fuelled nuclear-powered icebreakers can run continuously for four to five years. The working draft is around 10.5 metres on Arktika-class icebreakers, and 8.5 metres on Taymyr­-class icebreakers. This allows them to operate in Arctic seas and ports with virtually no restrictions in terms of depth. Finally, given the existing prices for fossil and nuclear fuels, the cost of cutting a one mile channel with a nuclear-powered icebreaker is six to eight times less than with a diesel-electric icebreaker.

There are two basic modes of ice navigation during rescue operations: continuous breaking and ramming.

Icebreaker assistance in Northern Sea Route waters is carried out by vessels that have the right to fly the flag of the Russian Federation (Article 15 of the Merchant Shipping Code of the Russian Federation).

Icebreaker assistance includes ensuring the safe passage of ships located within radio coverage zone of the icebreaker (Channel 16 VHF) through Northern Sea Route waters. This includes: carrying out ice patrols, providing safe waterways through the ice, forming groups of ships, aligning ships to follow the icebreaker, towing ships through the channel cut out by the icebreaker, and leading individual ships and groups of ships through the ice.

In accordance with the Regulations on the Administration of the Northern Sea Route and the Rules of Navigation in the Water Area of the Northern Sea Route, the requirements regarding the construction of ships, their equipment and logistics for ships have been developed. The requirements take into account particularly difficult and dangerous conditions and are aimed at ensuring safe navigation and preventing pollution of the marine environment and the northern coast of Russia. This is one of the most vulnerable areas. Therefore, existing legislation prohibits the discharge of oil and other hazardous substances or mixtures that contain substances in excess of the established norms.

These requirements apply, unless otherwise stated, to all vessels with a gross tonnage of at least 300 tons travelling the Northern Sea Route. Vessels with a gross tonnage that is less than 300 gross register tons require special permission from the administration.

In addition to satisfying the above-mentioned requirements, ships travelling the Northern Sea Route must also comply with the Rules of the Russian Maritime Register of Shipping, that is, they must display the ice strengthening category of the icebreaker with the symbol denoting its class – Arc4 (LU4), Arc5 (LU5) or Arc6 (LU6) – or the equivalent ice strengthening category as set by a different classification organization. They must also follow rules set out by international conventions, as well as the Code of the International Maritime Organization.

Ships designated as ice strengthening category Arc4 (LU4) by the Russian Maritime Register of Shipping or a different classification organization may be admitted by the Administration in the western region and individual areas of the eastern region of the Northern Sea Route, provided that it is the summer navigation period, the sailing conditions are favourable and that they follow icebreakers.

Icebreakers are allowed to sail the Northern Sea Route in ice conditions that correspond to their ice strengthening category. Permission to sailing in icy conditions that exceed the ice strengthening category of a given ship is determined by the Administration on a case-by-case basis upon consideration of the documentation provided by the ship owner. The documents confirm that the state of the icebreaker's hull, mechanisms and systems provide the necessary levels safety for navigating the intended region, and that the vessel will not pollute the marine environment.

Ships designated as ice strengthening category Ice3 (LU3) may be permitted in exceptional cases with special permission from the Administration, provided that it is the summer navigation period in the western part of the Northern Sea Route and the sailing conditions are favourable and are forecast to be so for the period of travel. Ice strengthening category Ice3 (LU3) ships are not permitted to sail in the eastern region of the Northern Sea Route.

Transport vessels designated ice strengthening category Ice3 (LU3) and Ice2 (LU2) in service and assigned to Arctic ports at the time the requirements were published may be permitted in exceptional cases during the summer navigation period only, provided that the sailing conditions within the coastal polynya Arctic seas are favourable, taking into account the technical condition of the vessel and the ice conditions at the time.

Inland vessels going out to sea may be granted access to Northern Sea Route waters in the regions and at the times designated by domestic legislation. The ice conditions in these regions must not exceed those set out in the requirements of the Russian Maritime Register of Shipping for this class of ship in terms of severity.

Inland and mixed navigation vessels may be admitted into Northern Sea Route waters during the summer navigation period for one-time crossings only. The Administration determines whether such a vessel should be admitted into Northern Sea Route waters and the conditions for doing so on a case-by-case basis, taking into account: the actual ice conditions on the waters; the ice-class of the ship (its ice breaking category); and the state of the ship's hull, mechanisms and systems. In addition, the ship owner must provide a list of measures taken to ensure the safety of the ship and measures taken to prevent pollution of the marine environment.

Arctic waters north of the Northern Sea Route and outside the jurisdiction of the Russian Federation may be serviced by foreign icebreakers providing passage for non-Russian ships.

Recently, the Russian authorities have taken a number of steps to improve the infrastructure of the Northern Sea Route and make it more attractive for foreign ship owners. This primarily concerns navigation services along the route, including satellite communications and vessel detection systems and electronic navigation charts.

In addition to the Rules of Navigation in the Water Area of the Northern Sea Route, other measures are being to increase international navigation along the Northern Sea Route, including the preparation and distribution of numerous navigational aids, charts and other necessary documents. Every year, the Government of the Russian Federation releases a list of Arctic ports and points that are open to foreign vessels.

Increased efforts to expand international use of the Northern Sea Route are part of a general strategy to stabilize the growth of the Russian economy.

The legal, political and institutional changes taking place in Russia and the relative demilitarization of the Arctic create a favourable environment for international economic cooperation in the Northern Sea Route zone.

As the Suez and Panama canals have reached almost full capacity, and the intercontinental ocean passages may be blocked by terrorists, the Northern Sea Route is becoming a priority in terms of international transport links. This is why it is necessary to create a system of safe navigation in the Arctic and build a corresponding fleet, as well as an icebreaker fleet capable of ensuring safe passage.

Nuclear-powered icebreakers do not give off emissions and work for up to five years without the need to refuel. Given the obvious benefits to the environment of this technology, Russia has the right to use it as an example for all countries seeking to develop shipping in the Arctic, as well as to raise the issue of confirming the legal status of the benefits of a nuclear fleet as a means of environmental safety in the polar regions to the international level. This approach would help Russia consolidate its sovereignty in the Arctic.

In terms of the negative trends, the backlog in the development of legislative and normative bases for the Northern Sea Route and the use of a state nuclear-powered icebreaker fleet to ensure shipping in the Arctic poses a threat to Russia's national interests in the region. Given the increasing international competition for Arctic shelf resources, thus could lead to Russia losing its dominant positions in terms of its exclusive use of the economic zone and the Northern Sea Route.

In this regard the Government of the Russian Federation must:

– provide rigid control over the activities of interested ministries and agencies when adopting and improving the legal and regulatory base for the use of the Northern Sea Route;

– provide for the development and adoption of legislation that lay down the jurisdiction of the Russian Federation in the Northern Sea Route in accordance with Article 234 of the United Nations Convention on the Law of the Sea dated December 10, 1982;

– finalize the legal and regulatory framework for the use of a state nuclear-powered icebreaker fleet to ensure the functioning of the Arctic's marine transport system (the Northern Sea Route) and preserve and protect Russian interests in the Arctic.

These objectives are set out in the document entitled "The Foundations of the Russian Federation's State Policy in the Arctic until 2020 and Beyond", approved by the President of the Russian Federation on September 18, 2008. The document contains a complete list of measures to strengthen Russia's sovereignty over the Northern Sea Route, make use of the route for international shipping under Russian jurisdiction, and include the resources of the Arctic zone in the development of the country's economy. Experience has shown that a state nuclear-powered icebreaker fleet will play a significant crucial role in carrying out these tasks.



Back

The UN Convention on the Law of the Sea and Developing the Northern Sea Route
opportunities and threats for russia

Irina Mikhnina
PhD in Law, Head of the International Law of the Sea Department, Institute "Soyuzmorniiproekt", Moscow
An Interpretation of Articles 234 and 236 of the UN Convention on the Law of the Sea

Article 234 of the UN Convention on the Law of the Sea requires parties to provide prior notification and to seek permission to exercise rights and freedoms of navigation

The UN Convention on the Law of the Sea of 1982 (hereinafter – the 1982 Convention) lays down a comprehensive international legislative complex designed to maintain law and order with a view to protecting and preserving the marine environment. It defines the rights and obligations of the states using sea areas to combat the pollution and is compulsory for all parties to the Convention. The pollution of the Arctic environment, which is very vulnerable and has a reduced self-healing ability, is particularly important. Even relatively small-scale pollution poses an increased danger to Arctic seas compared to other areas of the oceans.

Under Article 234 of the 1982 Convention, ice-covered areas are areas "within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance."

In these areas, the coastal state has the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from ships. At the same time, the coastal state's laws and regulations must pay due regard to navigation rights and the protection and preservation of the marine environment based on the best scientific evidence.

Under these provisions, coastal states are entitled to introduce national regulations to control pollution, and these regulations can be more stringent than international standards already in place. These powers far exceed the ordinary jurisdiction of the coastal state in the exclusive economic zone (EEZ). The coastal state has the right to regulate the design, construction, manning and equipment of vessels, which it would not normally be entitled to do, even in territorial seas.

The obligation to take into account the interests of navigation means that ice-covered areas cannot be completely and permanently closed to navigation by foreign ships. Although coastal states are unlikely to have the right to close all such areas for navigation, they are able to establish full control over them and, depending on weather and other conditions, temporarily prohibit or restrict navigation on certain specific routes.

In regard to Article 234, different points of view are expressed. The vagueness of the Article's wording provide some scholars with grounds to doubt that it is applicable to the Arctic, and not some other region with similar characteristics [2].

The most acute disagreements have been arisen over the provisions detailing strict requirements for ship designs, ship construction, equipment and manning [3]. However, it is universally recognized that navigation in ice-covered waters imposes strict requirements on both ships and navigators.

The recently adopted International Code for Ships Operating in Polar Waters (Polar Code) specifies Article 234's requirements relating to the ships' construction and equipment, and the required professional skills of crews navigating in polar waters.

Article 236 of the UN Convention on the Law of the Sea: applies to ships with sovereign immunity under common practice and the passage through the Northern Sea Route

Under Article 236, due to sovereign immunity, the provisions of the 1982 Convention regarding the protection and preservation of the marine environment do not apply to warships, naval auxiliary vessels and other vessels or aircraft owned or operated by a state and engaged in non-commercial or government service. However, each state must ensure that these vessels or aircraft act in a manner that is consistent with the Convention.

Legal grounds for the use of the Northern Sea Route for the transit of cargo vessels flying foreign countries' flags

The national legislative framework governing navigation in the Northern Sea Route (NSR) has been shaped by two main factors. The first is Russia's internationally recognized historic title as a state whose economic infrastructure and national interests are linked with the spatial and resource potential of the Arctic Ocean. For centuries, Russia has worked on the scientific research of the region, as well as on its economic, cultural and other development, its defensibility, and the preservation of its environment and natural resources. The second factor has been international law, in particular the 1982 Convention.

The Regulations for Navigation on the Seaways of the Northern Sea Route (NSR) approved by the USSR Merchant Marine Ministry in 1990 were developed paying due regard to the provisions of the 1982 Convention, in particular Article 234. These Regulations opened access for foreign vessels to the NSR and established an authorization-based procedure of navigation in these waters, implemented under the supervision of Russian-based services. The conditions under which vessels are authorized to navigate through the Northern Sea Route are non-discriminatory and are designed to ensure safe navigation and to prevent marine environment pollution.

The development of national and international projects for the development of mineral resources in the Arctic, the international community's interest in the transit of goods from Europe to Asia call for the improvement of the legal regulation of NSR navigation, which functions as a national transport communication system that is also part of the Euro-Asian shipping route.

In July 2012, the Russian Federation adopted the New Federal Law on Amendments to the Merchant Shipping Code (Article 5), which defines the boundaries of the Northern Sea Route waters, establishes the Rules of Navigation in NSR waters and NSR administration functions. The New Rules of Navigation in the Northern Sea Route area, approved by the Ministry of Transport of the Russian Federation in 2013, support the key approaches to the waters' legal status as a national transport communication line, including, in particular, the requirement for an authorization-based navigation procedure. They also define requirements for vessels in terms of maritime safety and protecting the marine environment from pollution, as set out by international treaties and the national legislation.

Improving the legislative regulation of navigation in the NSR: challenges and solutions

The development of Russian legislation in this area in the context of Russia's international obligations

Today, Russia's goal in the Arctic in general and in the NSR area in particular, is as follows: to create a complex of laws governing navigation, which will be consistent with international law and create safe and economically attractive conditions for international projects, while also serving Russia's interests in maintaining control over NSR waters.

Article 5¹ of the Merchant Shipping Code, adopted by Russia in 2012, and the Rules of Navigation, adopted in 2013, together with other Russian maritime laws will serve as the legal and regulatory basis for further development of Russian legislation in this area. The Development Strategy of the Arctic zone of the Russian Federation and National Security for the Period to 2020 sets the goal of creating a single coherent system of laws and regulations for the Arctic region. In addition, amendments to international instruments of legal regulation of navigation that have been adopted by the International Maritime Organization (IMO) require further changes to Russian regulations in this field. Bringing national legislation into conformity with standards developed at an international level will ensure Russia is in a position to fulfill its international obligations.

Improving international laws on foreign countries' use of the NSR with a view to protecting Russia's interests in matters of security and development of the Arctic

Due to the intensified exploration and recovery of resources in the Arctic continental shelf combined with intensified navigation in the Arctic region, in 2015 the IMO adopted the Polar Code. The Code's goal has been to develop common rules and requirements for the safe navigation of ships and pollution prevention in ice-covered polar waters. The Code covers issues related to the design, construction, equipment and operation of ships in polar waters, including training crews for navigation in ice conditions and at low outdoor temperatures.

The Polar Code complements mandatory IMO conventions on maritime safety, namely the International Convention for Safety of Life at Sea, 1974 (SOLAS), the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL), the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (on issues, which are not covered by the conventions). The Polar Code contains measures necessary to ensure the safety of life and to prevent pollution in the polar waters.

Preparations for the Polar Code were aimed at harmonizing national requirements regarding Arctic navigation in Russia and in Canada with the interests of ship-owners.

How unique is reflecting the NSR's status in national law as Russia's historical national unified transport communication system in the Arctic? What other countries have similar wordings in their legislation?

The NSR's legal status as a national transport communication system is not unprecedented in the Arctic region.

The Northwest Passage runs through the straits of the Canadian Arctic Archipelago and connects Baffin Bay with the Beaufort Sea. It is within the Canadian internal waters. From January 1, 1986, Canada adopted a baseline boundary system enclosing the Northwest Passage within its internal waters. A special Act established baselines along the perimeter of the entire Canadian Archipelago to be used for identifying Canadian territorial waters and its exclusive economic zone (EEZ). Foreign vessels navigating through these straits are required to observe the Canadian legislation, which regulates efforts to prevent marine pollution from ships.

This measure can be considered consistent with the Geneva Convention on the Territorial Sea and the Contiguous Zone of 1958, the Geneva Convention on the High Seas of 1958, and the 1982 Convention. Some Western experts share this point of view, arguing that the time for which Canada has governed Arctic waters adjacent to its land territory, including through issuing whaling licenses, patrolling and regulating hunting, substantiates the country's claim to full sovereignty in area outlined by the Territorial Sea Geographical Coordinates Order [4].

An authorization-based procedure has been established for foreign warships visiting Canadian internal waters and ports. A request for the entry of warships should be submitted directly to Canada's Foreign Affairs Ministry 45 days before the visit, and the Ministry takes the appropriate decision in each instance.

Norway has announced that Inderlee, which is located within a belt of small offshore islands, is its national (historical) navigational route and exercises sovereignty over it. Foreign merchant vessels and warships are allowed to navigate there, except for in prohibited areas.

The Norwegian claim's legitimacy was upheld by the International Court of Justice on December 18, 1951 [5], when settling the United Kingdom v Norway dispute, known as the Fisheries Case. The International Court of Justice held that the fact that this consistent and sufficiently long practice took place without any objection from other states (until the dispute) indicated that states did not consider the Norwegian system to be "contrary to international law." Given the notoriety of the facts, the international community's general tolerance, the closely intertwined relationship between the Inderlee water zones with land areas of Norway, as well as the fact that the country laid the route, developed and equipped it using its own resources, the Court found in favor of the Norwegians.

The legal propriety and comprehensive international recognition of this are confirmed by the 1982 Convention (Article 7 paragraph 5).

What is the international practice regarding the legal protection of a maritime space defined by national legislation as a historical transport route?

Under international law of the sea (the Geneva Conventions of 1958 and of 1982) States are empowered to substantiate their claims to the surrounding maritime areas of the coast. They need to prove historical (long-term) use, economic development, research, defense against aggression, as well as the economic, political and strategic importance of maritime space for the State.

The Northern Sea Route, the Northwest Passage and Inderlee all serve as examples of this.

* * *

All things considered, it is important to note that the current general legislation governing the Arctic is characterized by a comprehensive and undoubted legal priority of the region's countries. It is important that the institutionalized status quo is enshrined not only in Arctic states' laws, but that it is also given tacit or open international acceptance.

Article 234 of the 1982 Convention grants Arctic states the right to adopt laws and regulations aimed at protecting the marine environment of the ice-covered areas for most of the year within the 200-mile exclusive economic zones. These regulations may include more stringent measures for the construction and equipment of ships, as well as for crews' professional skill, than those adopted at international level, such as the IMO.

Paying due regard to these provisions, Russian legislation establishes laws governing navigation and other activities in Russian Arctic waters.

The legislative practice of Denmark, Canada, Norway and the United States in establishing laws for maritime spaces of the Arctic and its legal regulation within the framework of transport and other economic activity is based on international law, namely the Geneva Conventions of 1958 and of 1982.

The peculiarities of Arctic legislation in these countries, and in Russia, are due to natural, historical, economic and military-political factors that, given the isolated geographical and politico-administrative position of the region, are intrinsic only to this part of the seven seas.

1. Brubaker D. Environmental Protection of Arctic Waters – Specific Focus the Russian Northern Sea Route. Law Department Stockholm University. Stockholm, 2002.
2. Nordquist M., Rosenne S., Yankov A., Grandy N. United Nations Convention on the Law of the Sea 1982 – A Commentary. Center for Oceans Law and Policy, University of Virginia. Vol. IV. Dordrecht, Martinus Nijhoff, 1991. P. 393.
3. These requirements are contained, in particular, in the Canadian legislation of 1970 on the prevention of pollution of the Arctic seas.
4. Lamson C., Vanderzwaag D. Arctic Waters: Needs and Options for Canadian-American Cooperation // Ocean Development and International Law. 1987. Vol. 18. № 1. P. 49–99.
5. Fisheries Case, Judgment of December 18th 1951 // I.C.J. Reports. 1951. P. 130.



Back

Idea: Timur Makhmutov
Produced by: Maria Smekalova, Alexandr Teslya and Dmitriy Puminov.
Video by: Northern (Arctic) Federal University.
© 2015 Russian International Affairs Council, russiancouncil.ru