Ph.D. in Law, Senior Research Fellow, Institute of Legislation and Comparative Law under the Government of the Russian Federation
Both the Arctic states and other members of the global community are becoming increasingly interested in the Arctic. The issues of developing the Northern Sea Route (NSR) and the legal regulation of navigation in its waters are pending both for the Russian interests and in the international context, especially since the International Code for Ships Operating in Polar Waters (Polar Code) comes into force on 1 January 2017.
Both the Arctic states and other members of the global community are becoming increasingly interested in the Arctic. The issues of developing the Northern Sea Route (NSR) and the legal regulation of navigation in its waters are pending both for the Russian interests and in the international context, especially since the International Code for Ships Operating in Polar Waters (Polar Code) comes into force on 1 January 2017. The NSR has a special role among the maritime shipping routes in the world. It is the shortest sea route between the European part of Russia and the Far East. Its use has always been complicated.
Even in summer, the Arctic seas the NSR crosses are occasionnaly covered with ice. Travelling through the Arctic ice requires icebreakers and Arctic ice class transportation vessels with a strong hull and powerful engines. However, even such technically perfect Arctic fleet is not always capable of ensuring navigation in ice-covered regions. Safe navigation in the NSR water area requires navigational, hydrographic, hydrometeorological, and search and rescue systems that are constantly improved. Experts note that successful Arctic navigation, proper management and appropriate legal governance of the route’s use require clear understanding of the specifics of the Arctic region and of navigation therein.
1. The Rules of Navigation in the Water Area of the NSR must be brought into compliance with the Polar Code by the time it comes into force on 1 January 2017. According to the Polar Code, the ships navigating polar waters and holding certificates required under Chapter 1 of the SOLAS Convention, must be issued a separate Polar Ship Certificate, and also the Polar Water Operation Manual.
2. Controlling compliance with the Rules of Navigation in the Water Area of the NSR requires improvement and amendment as regards the rules of icebreaker support and ice pilotage in the NSR water area, the rules for pilotage along the lines in the NSR water area, radio communication when navigating the NSR water area, etc. Developing the mechanism for imposing penalties for infringement upon these rules is also necessary.
Currently, without such regulations in Russian legislation, non-compliance with, or infringement of the rules may occur increasingly often (see the 2013 incident with the Arctic Sunrise flying the Netherlands’ flag).
The official NSR Administration’s website lists the ships navigating the NSR water area without the Administration’s permission. The NSR Administration informs the Federal Service for Supervision of Transport of every such incident.
It appears expedient to amend the current Russian legislation to set up an efficient control mechanism for compliance with the Rules, specifying governmental bodies and agencies with appropriate powers.
Article 23.10 of the 2001 Code of Administrative Offenses of the Russian Federation (modified as of 2016) states that border control agencies examine offences stipulated in Article 11.7 “Infringement upon Rules of Navigation” in relation to breaching the rules of navigation in the NSR water area. It appears expedient to amend the appropriate articles of the Code to indicate specific agencies, officials, and the mechanism for drawing up administrative infraction acts at the place of an infringement committed in the NSR water area by the navigator of a ship flying the Russian or a foreign flag.
3. Possible human impact in the NSR water area sets the task of creating proper legal foundations for ensuring environmentally safe navigation taking into account the requirements set by UNCLOS (Articles 211, 234, and 235, etc.). The issues of environment protection control (environmental control) as stipulated in the Federal Law “On Environmental Protection” of 10 January 2002 and in the Environmental Doctrine of the Russian Federation (approved by order of the Government of the Russian Federation no. 1225-r of 31 August 2002) and other regulations appear relevant to the NSR water area as well. During a large-scale analysis of the Russian Arctic seas supported by the Ministry for Natural Resources and Environment of the Russian Federation a project of protected marine territories’ system was drafted. The system which would allow ensuring preservation of the biological diversity of the northern seas against the background of climate change and intensified socioeconomic development of the Arctic.
At the same time, the large number of regulatory acts on environmental control, its broad scope, division of the objects of environmental control into federal and regional, dispersing the exercise of functions across various executive governmental bodies (both “vertically” and “horizontally”) inevitably generate practical problems and decrease environmental control efficiency. Codification remains high on the agenda.
4. Navigation in the NSR water area is developing. It is necessary to consolidate the efforts of all the Russian ministries, agencies, and bodies involved to formulate an integrated policy on the further development of the NSR as the national transportation route. The Government Commission on Arctic Development may contribute to it as a coordinating body ensuring interaction between the Russian governmental bodies and various organizations when resolving socioeconomic and other issues pertaining to developing the Arctic zone of the Russian Federation and to ensuring national security.