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Pavel Gudev

PhD in History, Senior Research Fellow at RAS IMEMO Sector for US Foreign and Domestic Policy, RIAC expert

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.

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.

***

riamotor.ru
Reuters
Arctic shipping routes


Сooperation between Russia and the U.S. in the Arctic as a whole and in the Bering Strait in particular benefits both sides.

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].

***

www.arctic-info.ru
Northern Sea Route


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 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.

***

newyorker.com / Davide Monteleone
Roger Rufe, Henry Huntington:
Arctic Shipping: A Route to Russian-American
Cooperation


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.

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.

The U.S. tends to regard the right of transit passage as a step towards codification of customary law.

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.

The exercise of freedom of navigation may be used for illegal, unreported and unregulated harvesting.

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.

1. Article 38 of the UN Convention on the Law of the Sea, 1982.

2. For example, the Montreux Convention on the regime of Black Sea straits.

3. Roach J. Ashley, Smith W. Robert. Excessive Maritime Claims. 3rd ed. Leiden: Martinus Nijhoff Publishers, 2012. P. 688.

4. The US considers the main criterion of referring a strait to the category of international ones to be solely its geographical position (linking one part of the high seas or EEZ with another part of the high seas or EEZ) and not the current functional characteristics (whether or not it is used for international navigation).

5. Roach J. Ashley, Smith W. Robert. Op. cit. P. 283–345.

6. Kraska J., Pedrozo R. International Maritime Security. Leiden; Boston: Martinus Nijhoff Publishers, 2013. P. 33.

7. Roach J. Ashley, Smith W. Robert. Op. cit. P. 686–691.

8. Yoshifumi T. The International Law of the Sea. N.Y.: Cambridge University Press, 2012. P. 106.

9. This did not prevent Australia and Papua New Guinea from trying to introduce mandatory piloting through the Torres Strait, causing opposition of a number of states, including the U.S. which saw the move as limiting the right of transit passage.

10. Lopez Martin A.G. International Straits. Concept, Classification and Rules of Passage. Berlin; Heidelberg: Springer, 2010. P. 197.

11. Greene J.K. Freedom of Navigation: New Strategy for the Navy’s FON Program. Newport; Rhode Island: Naval War College, 1992. P. 9–10.

12. Brubaker D.R. The Russian Arctic Straits. Leiden; Boston: Martinus Nijhoff Publishers, 2005. P. 192–193.

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