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Andrey Todorov

Ph.D. in Law, Research Fellow at Department for Disarmament and Conflict Resolution Studies, the Primakov National Research Institute of World Economy and International Relations (IMEMO) of the Russian Academy of Sciences, RIAC Expert

Once again, the Arctic has riveted the attention of the media and the public at large. In early 2019, Russia and the U.S. continued to exchange high-profile statements concerning the Northern Sea Route (NSR). For instance, in February 2019, the Russian media drew major attention to the words of U.S. Adm. James Foggo, commander of the U.S. Naval Forces Europe and Africa, who said that “the United States would not allow Russia and China to dominate the Arctic and control the Northern Sea Route”. Russia responded by announcing rules for the passage of foreign warships in the NSR. Even though this media hullaballoo mostly produces populist and rather ignorant statements, there are, sadly, sufficient grounds to seriously think about them, too.

At present, as regards warships and other vessels enjoying immunity, Russia plans to introduce a requirement for notification only in the NSR’s territorial sea, not throughout its water area. However, even such a step, as well as the aggressive rhetoric of U.S. officials, is yet another dangerous signal that demonstrates the growing potential for conflict in the region. Even though the Arctic is currently in the periphery of U.S. strategic and military interests, introducing the notification requirement might provoke the U.S. to step up its naval activities in the NSR under the FON programme. There has already been talk about this. It is impossible to rule out a scenario in which this development escalates into an open conflict similar to the situation in the South China Sea.

In this case, the matter of enforcement will likely be crucial: what will Russia do if the U.S. decides to demonstratively send a warship into the territorial sea without notifying the Russian authorities. Under international law, if any warship does not comply with the laws and regulations of the coastal state concerning passage through the territorial sea and disregards any request for compliance therewith, the coastal state may only require it to leave the territorial sea immediately (Article 30 of the 1982 Convention). We must admit, however, that we would not like to witness the situation at sea turning into a real-life test of the parties’ commitment to international law.


Once again, the Arctic has riveted the attention of the media and the public at large. In early 2019, Russia and the U.S. continued to exchange high-profile statements concerning the Northern Sea Route (the NSR). For instance, in February 2019, the Russian media drew major attention to the words of U.S. Adm. James Foggo, commander of the U.S. Naval Forces Europe and Africa, who said that “the United States would not allow Russia and China to dominate the Arctic and control the Northern Sea Route”. Russia responded by announcing rules for the passage of foreign warships in the NSR. Even though this media hullaballoo mostly produces populist and rather ignorant statements, there are, sadly, sufficient grounds to seriously think about them too.

Overall international situation in the Arctic

Despite the populist statements of some officials, Russia and the U.S., like other countries, officially consider the Arctic to be a region of peace and cooperation. This has always been the goal of Russia’s diplomacy. Even after relations between Russia and the West sharply deteriorated following the 2014 events in Ukraine, the Arctic was generally kept away from the negative consequences of the crisis; mutually advantageous cooperation even intensified. For instance, the Agreement on Enhancing International Arctic Scientific Cooperation was concluded in May 2017, and an Agreement was signed between five Arctic countries and five major fishing powers on preventing unregulated fishing in the Central Arctic Ocean (CAO) in October 2018. Russia–U.S. bilateral relations in the Arctic also had some high points: in 2018, the International Maritime Organization (IMO) approved the Bering Strait routing plan submitted jointly by Russia and the U.S.

At the same time, growing tensions between Russia and the West could not help but affect the Arctic and were primarily manifested in curtailing bilateral and multilateral communication channels between law enforcement and security agencies and military bodies (the Arctic Coast Guard Forum is the only Arctic security format in which Russian continues to participate). This results in weakened confidence between the parties, the misperception of military steps, and intensified aggressive military rhetoric on both sides. In such circumstances, any old dispute remaining in the relatively conflict-free Arctic could serve as a trigger. As we have seen, this time it was the U.S.–Russia dispute on the legal status and navigation regime in the NSR.

The legal navigation regime in the NSR and U.S. claims

Russia views the NSR as its “historically developed national transport route”, and therefore has adopted several acts regulating navigation in the NSR. In accordance with the 2013 Rules for Navigation in the Northern Sea Route, navigation on the route is authorization-based. This rule applies to the entire water area of the NSR, even though it includes maritime areas with different legal statuses. Inland seas and the territorial sea are under Russia’s sovereignty, but the right of innocent passage of foreign ships applies to the latter. Additionally, the NSR waters include the contiguous zone and Russia’s exclusive economic zone (EEZ) where Russia has certain sovereign rights and limited jurisdiction (but not sovereignty) and where freedom of navigation applies. However, the 1982 Convention allows the authorization-based procedure for navigation to be extended to the territorial sea and the EEZ regardless of the right of innocent passage and the freedom of navigation. A coastal state has the right to pass laws and regulations, in particular, relating to its territorial sea, the safety of navigation, and preserving the environment (Article 21 of the 1982 Convention). As for the EEZ, Russia cites Article 234 of the 1982 Convention granting coastal states the right to adopt and enforce laws for the prevention, reduction, and control of marine pollution from vessels in ice-covered areas within the limits of the EEZ.

Russia does not intend to introduce a notification-based or authorization-based procedure for warships beyond the territorial sea in the NSR water area.

The U.S. adheres to a different position. Since the 1960s, the U.S. has been disputing the legal status of some of the NSR straits. The USSR proceeded from the assumption that the Vilkitsky, Shokalsky, Sannikov, and Laptev Straits historically form its internal waters that are covered by its complete sovereignty. The U.S. insists these are international straits and right to transit passage applies through them. In 1984 and 1985, the USSR used straight baselines to declare significant areas of the Arctic Sea along its coast to be its internal waters [1], including the straits the U.S. had disputed, which also prompted Washington to protest.

Until recently, the straits were the only matter of dispute between Russia and the U.S. regarding the NSR. However, on May 29, 2015, the U.S. sent Russia a diplomatic note listing claims against the entire NSR regime. One of the reasons for Washington’s concerns (this article is not intended to consider the U.S. claims in their entirety; for that, see Pavel Gudev’s article “The Northern Sea Route: а National or an International Transportation Corridor?”) was the fact that Russian rules for navigation in the NSR made no exceptions for vessels enjoying immunity such as warships, naval auxiliaries, and other ships owned or operated by a state and used only for government non-commercial services (hereinafter referred to as warships).

This issue is of crucial significance for the U.S. in terms of regulating navigation in the Arctic. Ensuring freedom of navigation, maintaining the ability to quickly redeploy naval forces, and ensuring a naval presence in key strategic regions is one of the U.S. priority policies in the World Ocean. The U.S. strategy on the Arctic notes that it prioritizes preserving all the rights, freedoms, and types of maritime use stipulated in international law in the region. Such wording is present in the Arctic strategies of the U.S. Department of Defence, Navy, and the U.S. Coast Guard.

In order to implement this policy, the U.S. launched the Freedom of Navigation (FON) programme in 1979. The programme is implemented in three ways:

  1. by holding bilateral and multilateral inter-governmental consultations;
  2. by conveying diplomatic notes of protest and aide-mémoires;
  3. by holding operational procedures involving the U.S. Navy [2].
Alexander Sergunin:
Back to “Normalcy”

As part of this programme, the U.S. takes measures, such as contesting the introduction of a notification-based or authorization-based procedure for innocent passage through territorial seas, particularly as regards warships. Probably the most high-profile example of this was a series of demonstrative actions by the U.S. Navy in the South China Sea intended to contest the authorization-based procedure for navigation in terms of the warships’ access to China’s territorial sea.

What is Russia going to do?

In September 2018, France’s offshore support and assistance multipurpose vessel Rhone entered the NSR. The navigation went smoothly. Soon after, however (probably in response to this passage), in November 2018, the media published a statement by Mikhail Mizintsev, Head of the National Defence Management Center, stating that, by the start of the 2019 navigation season, Russia plans to introduce a notification-based procedure for passage along the NSR for foreign warships. In March 2018, Russia’s Ministry of Defence had already drafted the appropriate legislative amendments. However, an analysis of the draft shows that not everything is quite as clear-cut as the media presents it.

The document is a draft resolution of the Government of Russia amending Resolution No. 1102 of the Government of Russia dated October 2, 1999 “On the rules of navigation and presence of foreign warships and other state-owned ships operated for non-commercial purposes in the territorial sea, internal waters, on naval bases, and bases for stationing warships in seaports of the Russian Federation”.

These amendments were proposed to institute the following rules for foreign warships and ships enjoying immunity:

  1. the need for the flag state to submit a notification via diplomatic channels concerning the planned passage through the territorial sea of the Russian Federation in the NSR water area no later than 45 days prior to the start of the proposed passage. The notification should indicate the nationality of the ships and vessels, the purpose of the passage, the planned route, the passage timeframe, and the ranks and last names of the commanding officer of the unit and each ship;
  2. mandatory ice piloting in the territorial sea and inland seas in the NSR water area;
  3. mandatory ice-breaker piloting in the territorial sea and inland seas in the NSR water area should there be a need warranted by the ice situation and upon being issued appropriate recommendations.

According to the preamble, the main purpose of the amendments is to ensure the safety of maritime navigation in these areas and to take measures intended to prevent, reduce, and control marine pollution from vessels stemming from “the intensified naval activities of various states in the Arctic.”

Once again it should be emphasized that the amendments only apply to Russia’s internal waters and territorial sea in the NSR water area. Under Article 236 of the 1982 Convention, the provisions of the Convention regarding the protection and preservation of the marine environment do not apply to warships and other vessels enjoying immunity. The same pertains to Article 234, which served as grounds for Russia expanding the authorization-based procedure for the navigation of non-naval ships in the EEZ. For this reason, Russia’s rules for NSR navigation cannot be extended to warships within the EEZ, which is openly stated in the preamble to the draft. Thus, we can conclude that Russia does not intend to introduce a notification-based or authorization-based procedure for warships beyond the territorial sea in the NSR water area.

What can be contested?

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Integrated Marine Management in the Arctic

Nonetheless, introducing a notification-based procedure of navigation for warships within the territorial sea appears dubious from the standpoint of international law. At the very least, there are fewer arguments in support of this move than for introducing an authorization-based procedure of navigation for commercial vessels in the NSR water area.

Warships’ immunity from the jurisdiction and interference of coastal states is a crucial tenet of the international law of the sea. Such vessels enjoy immunity regardless of the category of maritime spaces in which they are present. The special status of warships is stipulated in Articles 30, 32, 58, 95–96, and 236 of the 1982 Convention. Even when present in internal waters and the territorial sea during times of peace, warships may not be seized, detained or searched by a coastal state. Like commercial vessels, warships enjoy the right of innocent passage through territorial seas. Naturally, states have the right to self-defence in their territorial sea and internal waters if the passage is not innocent (Article 25). The list of activities that may be construed as prejudicial to the peace is given in Article 19. Otherwise, however, warships are exempted from the criminal and civil jurisdiction of a coastal state.

It should be noted that the USSR and the U.S. arrived at a common interpretation of the norms of the 1982 Convention concerning warships’ right to innocent passage in the territorial sea and enshrined it in a Joint Statement dated 23 September 1989 [3]. The Statement, in particular, emphasizes that “all ships, including warships, regardless of cargo, armament, or means of propulsion, enjoy the right of innocent passage through the territorial sea in accordance with international law, for which neither prior notification nor authorization is required”. Until now, Russia proceeded from similar considerations. However, when the new procedure is adopted, Russia will move away from this stance, at least regarding the NSR. This will probably prompt protests from the U.S.

The U.S. is highly likely to contest Russia’s reference to its interests in protecting the environment that are contained in the preamble to the new draft. While it is indeed apt to speak about a coastal state’s special responsibility for ensuring the environmental safety of the Arctic seas concerning the authorization-based procedure of navigation for commercial vessels throughout the NSR water area (the U.S. recognized and supported this point of view in its note of 2015), this argument does not apply to warships. As has been mentioned before, Article 236 of the 1982 Convention exempts warships and vessels enjoying immunity from the provisions pertaining to environmental protection.

In addition to the need to notify Russia about the passage of warships, the U.S. and other states may contest specific provisions of the new draft. The draft decree, for instance, introduces mandatory Russian ice piloting for warships. In 1989, Washington officially contested Finland’s decision to introduce mandatory piloting for warships in its territorial sea. The U.S. believes that there are no grounds for it in international law, and it is at the discretion of a warship on innocent passage in the territorial sea to accept or deny an offer of piloting services since the ship enjoys immunity [4].

At present, in regards to warships and other vessels enjoying immunity, Russia plans to introduce a requirement for notification only in the NSR’s territorial sea, not throughout its water area. However, even such a step, as well as the aggressive rhetoric of U.S. officials, is yet another dangerous signal that demonstrates the growing potential for conflict in the region. Even though the Arctic is currently in the periphery of U.S. strategic and military interests, introducing the notification requirement might provoke the U.S. to step up its naval activities in the NSR under the FON programme. There has already been talk about this. It is impossible to rule out a scenario in which this development escalates into an open conflict similar to the situation in the South China Sea.

In this case, the matter of enforcement will likely be crucial: what will Russia do if the U.S. decides to demonstratively send a warship into the territorial sea without notifying the Russian authorities. Under international law, if any warship does not comply with the laws and regulations of the coastal state concerning passage through the territorial sea and disregards any request for compliance therewith, the coastal state may only require it to leave the territorial sea immediately (Article 30 of the 1982 Convention). We must admit, however, that we would not like to witness the situation at sea turning into a real-life test of the parties’ commitment to international law.

1. The list of the geographical co-ordinates of the points defining the position of the baselines for measuring the breadth of the territorial sea, the exclusive economic zone, and the continental shelf of the USSR off the continental coast and islands of the Arctic Ocean and the Baltic and Black seas (approved by the decrees of the Council of Ministers of the USSR dated 7 February 1984 and 15 January 1985). http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/RU.S._1985_Declaration.pdf and http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/RU.S._1984_Declaration.pdf.

2. Roach J. A., Smith W. R. 2012. Excessive Maritime Claims. 3rd ed. Leiden: Martinus Nijhoff Publishers. С. 6.

3. Joint Statement by the United States and Soviet Union, with Uniform Interpretation of Rules of International Law Governing Innocent Passage, September 23, 1989.

4. Roach, note 13, p. 231.


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