Some reflections on the Northern sea route

The times are well within memory that a distinction was drawn between the Northeast Passage in the Arctic and the Northern Sea Route.(1) See generally W. E. Butler, The Soviet Union and the Law of the Sea (1971); Butler, Northeast Arctic Passage (1978); Douglas Brubaker, The Russian Arctic Straits (2005). The latter term had a specialized meaning in the doctrinal writings of the day: it referred to a cabotage internal sea route between - sailing eastward -the White Sea to a Russian Arctic port located on the northern coastline before the Bering Strait (small cabotage) or to a route from the White Sea to an eastern seaport of Russia southward of the Bering Strait (great, or large, cabotage). The Northern Sea Route, in brief, was a domestic route by which cargoes were carried from one Russian (Soviet) seaport to another and a monopoly of the coastal State.(2) In October 2017 the Russian Government announced that the Ministry of Transport­ation of the Russian Federation had taken the initiative to advance a proposal that foreign flag vessels under charter would no longer be allowed to undertake cabotage carriage on the Northern Sea Route. See PoccMMCKaa ra3eTa [Russian Newspaper], 7 September 2017, p. 4, cols. 2-6. This suggests that the State monopoly on cabotage long extant during the Soviet period was eliminated in the post-Soviet years and may be reintroduced. The proposal is believed in Russian shipping circles to be directed against offshore registrations of directly or indirectly Russian-owned vessels with a view to encouraging Russian owners to register their vessels under the Russian flag.

The Northeast Passage referred to what was generally regarded as an international sea route from the Atlantic to the Pacific whose path, depending upon ice conditions, may or may not overlap with the path traversed by vessels sailing the Northern Sea Route. Whether non-Russian flag vessels enjoyed the right to sail these seas turned upon whether the Arctic seas were regarded as internal or historic waters of the coastal State with a concomitant right to bar or limit passage or whether these seas were subject to the international law of the sea. If the latter, the ordinary rules operated of high seas, deep seabed, exclusive economic zone, continental shelf, contiguous zone, territorial sea, historic bays, internal sea waters, baselines, and so on.

The melting of the Arctic icepack so noticeable in recent years happens to have coincided with other maritime developments which have far-reaching implications for transport by sea and exploitation of the continental shelf. The enhancement in the size of the Panama Canal already is proving to increase traffic by lowering voyage times well in excess of predictions and promises to invigorate maritime commerce in the Gulf of Mexico and eastern seaboard of the United States.(3) The increased capacity of the Panama Canal is changing “... the way the world’s shipping lanes ply their global routes . “Panama Canal Expansion”, Journal of Commerce, 13 October 2017. joc.com Turkey is on the verge of building an alternative larger access to the Black Sea in the form of a canal. If completed, such a canal cannot fail to influence (and perhaps reduce?) the stature of the Suez Canal as a major international waterway.

For countries extensively engaged in or dependent upon maritime trade, the Northeast Passage offers attractively shorter voyage times between the Atlantic and Pacific, assuming that the ice permits a shipping season of from eight to twelve months each year. The larger canals will allow the deployment of larger ships, ice-reinforced to be sure, in Arctic waters. Whether the warming trend in the Arctic will continue is, within the world of shipping, a speculative proposition, but the likelihood seems high.

Coastal infrastructure in the Arctic will become more of a key factor then at present. There will be basic infrastructure essential to support any Arctic navigation and habitation and special-purpose infrastructure inspired by the sundry particular uses that are made of the Arctic. At an Arctic Circle Forum held in June 2017 at the Wilson Center in Washington D. C., the western, particularly the Alaskan, participants emphasized the need for investment funds for Arctic projects.(4) See the Proceedings, Wilson Center - Arctic Circle Forum, 21-22 June 2017, Washington D. C. (Washington D. C., Wilson Center, 2017). iv, 28 p. There remains in place, however, a bifurcation in Arctic affairs that is perhaps intensifying rather than weakening.

The “bifurcation”, roughly drawn, is from the Nordic States and possessions and Russia, as one domain, and Canada and the United States, as the other. Traversing the Nordic/Russian segment is to cross these northern lands by ship off their coast via the Northeast Passage; to cross from the Bering Strait eastward by traversing the Arctic waters north of Alaska and Canada is to travel the Northwest Passage, with no cabotage route ever singled out for Canada and Alaska equivalent to the Northern Sea Route northward of the Nordic/Russian segment.

The differences multiply: the population in the Nordic/Russian segment is substantially larger than in the Alaskan/Canadian segment. It would appear that the ice conditions are marginally superior in the Nordic/Russian segment. The presence of shipping and port infrastructure is greater along the Northeast Passage than available on the Northwest Passage. The attitude of Russia and Canada to the presence of vessels in the respective Passage ranges from welcoming in the Russian portion to indifferent or even hostile in the Canadian segment. Russia is committed, and has been for decades, to invest in its northern territories, whereas Canada and the United States place considerably less emphasis and dedication of resources to their own Arctic spaces.

Russia is actively marketing the Northern Sea Route as an expeditious and less expensive route to the Far East and return in comparison with the alternatives. This has long been a dream of the Soviet Union and post-Soviet Russia. To the extent that sea lanes in the Arctic are available, they offer a much preferred mode of access to coastal populations and installations. There is a considerable record of experimentation and support which, given better ice conditions, more infrastructure, a modern icebreaker fleet, advanced technology, and a genuine desire to exploit Arctic resources, set Russia apart from the other major Arctic powers.

Choosing to ratify the 1982 Law of the Sea Convention will not have been an easy decision for Russia if viewed solely from the standpoint of Arctic interests. The alternative would have been to continue to advance doctrinal claims to an “Arctic sector”, or to “historic bays and sea”, and similar claims that would have assimilated the Arctic seas bordering northern Russia to a regime of “internal waters”. And while the Soviet State and post-Soviet Russia have been careful not to espouse those doctrinal claims in their extreme form as State practice, they will have been an alternative that had its attractions.

Accepting a law of the sea regime for the Arctic expanses north of Russia has proved to be a more than satisfactory outcome, it would seem. When the ratification formalities of the 1982 Law of the Sea Convention were completed in 1997, Russia and all other Arctic powers had only the most basic understanding of the configuration of the continental shelf and deep seabed underlying Arctic waters. Subsequent research, mostly conducted in order to substantiate Russian claims to the Arctic continental shelf, have revealed a shelf far more extensive than was previously realized, extending to the North Pole, depending upon what mathematical model and projection is used. Russia has emerged from this exercise with vastly more continental shelf domain than could have been imagined and thereby achieved much of what the claims to internal waters or historic seas would have achieved while nonetheless preserving the freedoms of the seas so vital to Russian maritime interests in other parts of the globe.

It would seem that there is genuine value in retaining the traditional distinction between the Northeast Passage and the Northern Sea Route. Some vessels are able to navigate the Northeast Passage with minimal coastal State assistance; others will require pilots, icebreaker escort, air reconnaissance, and other coastal State services at a reasonable fee. It will not be surprising if the coastal State insists that passing vessels comply with environmental, technical, and ice-reinforcement standards consistent with the Law of the Sea Convention as a condition of being present in Arctic waters. On the other hand, nothing to date suggests that Russia is interested in removing its monopoly on small and large cabotage along its Northern Sea Route. That is an option open to Russia at any time and may potentially be an investment inducement under certain conditions.

Nonetheless, the gap may well be widening between those who favor, support, and invest in the development of the Nordic/Russian Arctic and those who prefer a Canadian/United States Arctic with minimal human presence and limited support for economic development.

There is another bifurcation in Arctic matters that is perhaps relatively latent for the moment but nonetheless present. This is the question of who should govern or administer the Arctic: the Arctic countries physically contiguous to the Arctic (Iceland, Denmark, Norway, Finland, Canada, United States, Russia), plus (or not) Sweden close by, or whether the Arctic is an area of the globe in which the entire international community has a legitimate interest. Both competing trends are in evidence.

International navigation through the Bering Strait, for example, might be regulated on a multilateral international basis, either the Arctic powers or the international community as a whole, or on a bilateral basis by the two littoral States - Russia and the United States. As the “Strait States”, Russia and the United States would have priority in regulating passage through the Strait if they were so minded.(5) See A. N. Vylegzhanin, “Legal Status of the Bering Strait: Historical and Legal Context”, Jus Gentium, II (2017), pp. 505-522. Indeed, one could adjust the scenario a step higher and suggest that the Arctic region as a whole might be governed by the Arctic States alone, to the exclusion of any non-Arctic powers.

At least one precedent works against the Arctic powers deciding to manage the Arctic by themselves: the international legal regime of Svalbard (Spitsbergen). The international community has asserted an interest in that archipelago pursuant to a multilateral treaty dating back to 1920.(6) See A. N. Vylegzhanin and V. K. Zilanov, Spitsbergen: Legal Regime of Adjacent Marine Areas, ed. & transl. W. E. Butler (2007). Even in recent years non-Arctic States have acceded to the Svalbard arrangements and thereby evidenced an interest in the management of Arctic affairs.

The establishment in 1996 of The Arctic Council plays, in this context, an ambivalent role. Initially, the Arctic Council was intended to be an organization of the eight littoral Arctic States and appropriate organizations representing indigenous peoples of the Arctic. In addition, provision was made for “observers”, of whom there are now several, including the Chinese People’s Republic.

It might be argued that the law of the sea, conceptually at least, is responsible for the presence of non-Arctic powers in the Arctic Council. Svalbard is land territory; none of the powers who are parties to the 1920 Spitsbergen arrangements has a claim to the waters adjacent to the islands forming the archipelago. The Arctic Ocean is another matter; once claims to continental shelves and exclusive economic zones are resolved in those polar regions, the balance of superjacent waters consists of high seas presumably, under the 1982 Convention, open to all States. As of 2017, twelve States have been accepted as observers: People’s Republic of China, France, Germany, India, Italy, Japan, Republic of Korea, Netherlands, Poland, Singapore, Spain, and the United Kingdom.(7) Article 6, Annex 2, of the Rules of Procedure of The Arctic Council, in admitting an observer, recognizes that an extensive legal framework applies to the Arctic Ocean, including the Law of the Sea, and that this framework provides a solid foundation for responsible management of the Arctic Ocean.

The observers potentially bring investment capital to the Arctic, among whatever other research, scientific, or other polar interests they may have. The smallest and shallowest of the world’s oceans, the Arctic Ocean via the Northeast Passage and the Northwest Passage links Asia, Europe, and North America. At present, approximately 90% of international trade takes place in the northern hemisphere. About 80% of the ca. four million inhabitants of the Arctic live in the Eurasian Arctic composed of Russia and the Scandinavian countries.

While Russia, including the former Soviet Union, invested substantially in its own Arctic possessions throughout much of the twentieth century, the scale of investment acquired to take full advantage of the Northeast Passage shipping lanes is tremendous. In 2013 a non-Arctic power declared an interest in those shipping lanes and, by inference, in the infrastructure required to support safe and even year round maritime transport. In September 2013 China introduced a plan to finance the Belt and Road Initiative (BRI) with investments initially projected to amount to US$5 trillion. By 2017 sixty-five countries had become part of the BRI initiative, although Russia is the only Arctic power to have done so and is likely to become the principal beneficiary of investment flows.

The question is whether, on balance, the Nordic countries will become active in BRI initiatives, including with their own capital investments, and what balance may be struck between the Northeast Passage and the Northern Sea Route.