On the Origins of Disputes Over the Status of the Northern Sea Route


International law leaves an opportunity to propose different interpretations of the Northern Sea Route (NSR) status, raising the issue of protecting Russia’s national interests and sovereign rights in the Arctic. Indeed, aiming to shape such a policy in the most effective way it is necessary to reveal conditions contributing to competing interpretations. 

First, plural views come from the nature of international law itself. There is no a unified system of legal enforcement and in most of practical cases the legal effectiveness depends on the intentions of participants of legal relations. However, the most influential international actors still are states with divergent or even conflicting national interests. This way the competitive nature of international law, as a process of elaborating legal norms, follows from the conflictual nature of international politics.

Additionally, the different law interpretations stimulate the lack of ultimate understanding of the relationship between domestic and international law. According to one view, they constitute a hierarchical system in which either national or international norms may have a dominant role. According to another view, international and national law systems co-exist quite independently. This means that state cannot establish an international norm by its domestic act, but at the same time the parties to international law cannot accept document to regulate a domestic issue against the will of state.

Finally, international law is not merely a set of static norms but a living system. It is precedent-setting and changes in the process of political and legal implementation, such as non-compliance with norms, official protests against the actions or decisions of other states, court rulings, and breaking of international and bilateral agreements. For example, to challenge the status of the internal waters of the Vilkitsky Strait, in 2018 France tried to set a precedent by sending the ship «Rhone» without Russia's permission. If there is no response from the Russian Ministry of Foreign Affairs, a rule of customary law can be protested. On the background competing national interests for control over the Arctic and the practice of violating the legal regime, the regular legal conflicts between states are inevitable.

Photo: BSAH Rhône, built at the Piriou shipyard in Concarneau, upon arrival in Brest in April 2018. • © MICHELLE FLOCK

Second, the ambiguity arises from the different interpretation of the sources of international law applicable to the NSR. Its status was formed from international custom developed by state practice and international legal acts. Some western experts try to impose a «universalist» approach that considers the 1982 UN Convention on the Law of the Sea (UNCLOS) as the only source of international law. This understanding leaves no room for Russia's special rights to the NSR as a historically established national transportation route. Meanwhile, international law, as defined by the UN International Court of Justice (Article 38), consists of several sources:

  • international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
  • international custom, as evidence of a general practice accepted as law;
  • the general principles of law recognized by civilized nations;
  • judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Third, the reason for different interpretations of the NSR legal status rooted in the inequality of Arctic policy stakeholders. The established Arctic legal regime grants exclusive economic rights and a decisive vote in the Arctic Council to the Arctic states: the United States, Russia, Norway, Denmark, Canada, Finland, and Sweden. Among them, only Russia and Canada have control over the two sea routes along their northern coasts, the NSR and the Northwest Passage (NWP). Therefore, they can claim priority respect of their national interests, but against the backdrop of the Ukrainian crisis Canada has taken a sharply negative stance towards Russia, and now it is hardly possible to harmonize their positions on transport policy. Finland and Sweden have no access to the Arctic Ocean. Non-Arctic states, including Germany, France, India, China, Japan, South Korea, etc., have only observer status in the Arctic Council. This explains how divergent policy vectors on transport corridors emerge:

  • Russia and Canada versus the rest of countries for sovereign control over the NSR and NWP;
  • between Arctic and non-Arctic states for expanding the rights of non-Arctic states;
  • between the US and the rest because the US has not ratified the UNCLOS and cannot effectively participate in international Arctic institutions;
  • between Russia and the US/NATO because of the strengthening of Russia's naval capabilities to protect and control the NSR.

Fourth, the different understanding of the NSR legal status is partly due to confusion when foreign experts mistakenly use «Northeast Passage» and «Northern Sea Route» as synonyms. But while the former includes the White Sea, the Barents Sea, the Norwegian Sea and further west, the NSR is limited to the Kara Gates in the west and Provideniya Bay in the Bering Strait in the east. The Russian Federation uses this definition when suggests the rights to the NSR as a historically formed national transportation artery apply. To the west of Novaya Zemlya these rights and norms are indeed inapplicable. The term «Northeast Passage» blurs the specificity of Russia's special rights to the NSR. Some Russian legal scholars believe that such incorrect terminology is introduced intentionally in order to ignore Russia's special rights to the NSR.

Fifth, there are ambiguities in the interpretation of Article 234 of the UNCLOS. It grants coastal states the right to establish navigation rules if the area is covered by ice for most of the year. The essence of this article is to protect the Arctic environment, which is very vulnerable to economic activity. According to Russian experts, the rights provided by the article in the exclusive economic zone exceed the usual rights of a coastal state in order to protect the environment. Russia and Canada referenced to the Article 234 when established the rules for navigation in the NSR and NWP waters.

Some foreign experts believe that Article 234 is inconsistent with the spirit of the UNCLOS. Unlike other articles, it doesn’t refer to international organizations such as the International Maritime Organization and thus violates the principle of balance. On the one hand, the exclusive rights of coastal states to regulate environmental activities create an incentive to act in accordance with «national egoism», and on the other hand, the lack of external participation in the decision-making mechanism allegedly infringes on the rights of other stakeholders in the Arctic. According to the Russian point of view, these claims have no legal basis, but in any case require a response from the Russian Ministry of Foreign Affairs if the claims are made officially.

The other part of foreign experts consider that climate change may lead to the melting  of perennial sea ice in the NSR and NWP, which may negate the references to Article 234. They put a question: is the article still relevant if ice covers the relevant areas for less than 6 months of the year as a result of global warming? Emphasis is placed on a literal reading of the text of the UNCLOS. This position is shared by Japan, for example. In this regard, Russian experts appeal to Article 31 of the 1969 Vienna Convention on the Law of Treaties, which refers to the rules of «good faith interpretation» and «ordinary meaning to be given to the terms of the treaty in their context and in the light of its [the treaty’s] object and purpose». In this case, the opinion of the coastal state should be taken into account because the environmental risks from shipping do not disappear even if the ice lasts less than 6 months. Furthermore, at the time of the adoption of the UNCLOS, the terms «ice-covered waters» and «Arctic waters» were perceived as synonyms, and no one took into account the possibility of ice melting. Therefore, reading Article 234 through the prism of the idea of melting ice does not comply with the principle of good faith and direct interpretation. Principled position of Russia and Canada, as the main authors and beneficiaries of Article 234, was to enshrine in international law the environmental protection measures already adopted by them at the level of national legislation. This position is shared by Canada today and has been successfully implemented in practice since 2010. This gives Russia an additional reason to follow the same path.

Photo:  The Canadian Coast Guard Ship Louis S. St-Laurent ties up to the Coast Guard Cutter Healy in the Arctic Ocean Sept. 5, 2009

As a result of above discussions there are several interpretations of the NSR status in international politics. Russia considers it a historically established national transportation artery. The entire NSR route runs within the exclusive economic zone of the Russian Federation. This means that foreign vessels can pass only with the permission of the NSR Administration, which is federally subordinate. Russia has the right to introduce its own norms regulating the conditions of international navigation, combining its rights, according to the historical status of the NSR, and the norms of international law, according to the UNCLOS. Russia's main problem is that the norms it introduced were not discriminatory. Obviously, Russia's policy in this aspect may be challenged by foreign partners.

According to an alternative viewpoint, in the perspective the NSR should be given international status. This will remove NSR from Russian national jurisdiction and open it to free navigation. Following this principle in the Arctic Ocean has traditionally been identified as the top priority of the U.S. Arctic strategy. In particular, the principle of freedom of navigation is mentioned in the National Strategy for the Arctic Region (2022). This position is openly supported by Germany, France, and Japan in their rhetoric. However, it has only one shaky foundation - the US ambition to ignore any legal restrictions on its maritime activities. Another NSR internationalization option is particularly popular among non-Arctic states while they officially recognize Russia's special rights to the route. The idea is to give the NSR the status of «global commons» where all ships without exception should enjoy free passage. The principle of global commons appeals to the equalization of rights to use resources and spaces that belong to all mankind, like space or the World Ocean. According to this logic, Russia demonstrates «national egoism» with regard to the common heritage of mankind. In particular, China, Japan, and the EU countries that have no access to the Arctic seas are interested in such a development. The coastal Arctic states are also ready to support the idea of global commons, but only with regard to the NSR rather than to their own Arctic spaces. But the concept of global commons is vulnerable because it can be applied only to the central Arctic Ocean and not to the NSR, which runs in the exclusive economic zone of the Russian Federation.

The next option for NSR internationalization is based on plans to implement «green energy» projects for environment protection in the Arctic. Part of this activity is establishment of marine protected areas (as around Antarctica) in correspondence with international jurisdiction. It suggests setting international control not only over environmental activities in these areas, but also economic ones. This idea was supported by the Netherlands, France, Norway, and the US. The weakness of this position is that the Antarctica legal regime differs significantly from the Arctic one. While in Antarctica only scientific activities are allowed, in the Arctic there have been economic and military activities for a long time, which no one is going to stop.

To conclude, Russia has to regularly confirm and protect the NSR status as a historically established national transportation artery as well all the relevant rights.  International law objectively includes vague or equivocal concepts, definitions, and agreements and implies competitive nature of law-making and law-interpretation. At the same time political and legal practice give rise to customary law as additional source of international law that influences on development and interpretation of agreements through precedents. Apparently, the best way for Russia to defend NSR’s status is two-fold:

  • to combine customary law and international agreements;
  • to rely on Article 234 of UNCLOS but to avoid interpretation of UNCLOS as the primary source of international law in the Arctic;
  • strongly discourage precedents that question the NSR's status as a national transportation route.

Valery Konyshev

Saint-Petersburg State University