1 Introduction
In recent years, the phenomenon of climate change has resulted in increased accessibility to Arctic regions, hence facilitating a range of activities, including commercial shipping.(1) M. Jacobsson, “What Challenges Lie Ahead for Maritime Law?” in Maritime Law in Motion (Cham: Springer International Publishing, 2020), p. 267, accessed September 12, 2023, https://doi.org/10.1007/978-3-030-31749-2_13. The Central Arctic has experienced lighter ice conditions, specifically due to the rapid decline of sea ice in the Arctic Ocean(2) National Snow and Ice Data Centre. “Arctic Sea Ice News and Analysis,” available on: https://nsidc.org/arcticseaicenews/. Accessed November 2, 2023., thus opening the possibility of discussing previously inaccessible sea routes, such as the Northern Sea Route (hereinafter “NSR”).
The NSR, situated along the Russian Federation's coastline, is the eastern segment of the Northeast Passage.(3) T. Pastusiak, “Introduction,” in The Northern Sea Route as a Shipping Lane (Cham: Springer International Publishing, 2016), pp. 14-19, accessed September 13, 2023, https://doi-org.ezproxy.uio.no/10.1007/978-3-319-41834-6_1. This maritime route links the European Union countries with the Far East, traversing the coastal regions of the Scandinavian Peninsula, as well as the European and Asian territories of Russia, extending further through the Bering Strait, ultimately reaching the Pacific Ocean.(4)Ibid. Even though until recently the NSR for the best part of the year was characterised by harsh ice conditions, now it holds a significant potential for development and offers the prospect of year-round shipping between major ports in Asia and Northern Europe.(5) Björn Gunnarsson and Arild Moe, “Ten Years of International Shipping on the Northern Sea Route: Trends and Challenges,” Arctic Review on Law and Politics Vol. 12 (2021): pp. 5-6, accessed November 10, 2023, https://doi.org/10.23865/arctic.v12.2614.
It is asserted by the fact that in August 2021, the NSR saw its longest period of 88 consecutive days without ice, but the shipping season in 2023 is currently one of the longest on record, further highlighting the trend of prolonged navigability along the NSR.(6) Bojan Lepic, “Milestones Reached along the Increasingly Busy Northern Sea Route,” Splash247 (September 18, 2023), available on: https://splash247.com/milestones-reached-along-the-increasingly-busy-northern-sea-route/. Accessed October 15, 2023. Furthermore, it is worth noting that the NSR has a reduced distance of around 40% (10 instead of 19 days) when compared to the Suez Canal route and a 60% reduction when compared to the alternative route across the African Cape Horn.(7) Jerome Verny and Christophe Grigentin, “Container shipping on the Northern Sea Route," International Journal of Production Economics 122 (2009): pp. 107-117, accessed October 16, 2023, https://doi.org/10.1016/j.ijpe.2009.03.018. Thus, the NSR has the potential to generate significant economic advantages for global shipping companies, as it is anticipated that the expenses associated with transporting containerized cargo via the NSR are either comparable to or lower than those incurred through the Suez Canal- reduction in travel time achieved by utilising the NSR can result in cost savings of up to $500,000 per individual voyage.(8) Den Norske Atlanterhavskomite. The Northern Sea Route’s Role in the System of International Transport Corridors, p. 3. Available on: https://s3.eu-north-1.amazonaws.com/atlanterhavskomiteen/images/documents/FN-2-2008-The-Northern-Sea Route%E2%80%99s-Role-in-the-System-of-International-Transport-Corridors.pdf. Accessed October 10, 2023.
The NSR’s significance for international shipping is highlighted by a recent milestone event: in September 2023, bulk carrier Gingo became the first capsize ship to sail the route.(9) Lepic, supra note 6. It took the bulker 13 days from Murmansk to China to carry 164,600 tonnes of iron ore concentrate – the largest cargo to cross the NSR.(10) Ibid.
Against this backdrop, it is crucial to comprehend the intricate international and national legal framework that regulates the NSR, given the diverse viewpoints and approaches in both Russian and international academic literature when it comes to various legal aspects related to the NSR that deserve careful analysis, as outlined below.
The major uncertainty pertaining to the NSR revolves around the divergent understanding of its legal standing within the framework of international maritime law as outlined in the 1982 United Nations Convention on the Law of the Sea(11) UN General Assembly, Convention on the Law of the Sea (UNCLOS), Montego Bay, 10 December 1982, United Nations Treaty Series, vol. 1833, No. 31363, available on: https://treaties.un.org/doc/Publication/UNTS/Volume%201833/volume-1833-A-31363-English.pdf. Accessed October 5, 2023. (hereinafter “UNCLOS”). In this context, the main focus is on both broad and narrow interpretations, as well as whether or not the relevant UNCLOS provisions apply fully or partially to the water areas of the NSR.
Thus, the primary concern pertains to the international legal perspective of the NSR, which encompasses marine zones with distinct legal statuses, including internal waters, territorial waters, and the exclusive economic zone (hereinafter “EEZ”) of Russia as reflected in the relevant Russian legislation governing the NSR.(12) FL No. 81-FZ “Merchant Shipping Code of the Russian Federation", dated 30 April 1999, as amended 21 April 2023. Article 5.1 (para. 1). Available on: https://www.consultant.ru/document/cons_doc_LAW_22916/6082a63e586c9895cba9c7b98c7541a106d93efd/. However, while UNCLOS preserves the right of innocent passage in the territorial waters(13) UNCLOS, supra note 11, Article 17. and freedom of navigation in the EEZ and high seas(14)Ibid., Article 58, 87., as well as specifies Coastal State jurisdictional powers in each specific maritime zone, Russia considers the NSR as a unified/indivisible transportation route.(15) Viatcheslav Gavrilov, “Legal Status of the Northern Sea Route and Legislation of the Russian Federation: A Note,” Ocean Development and International Law 46 (3) (2015): pp. 256–263, accessed November 1, 2023, https://doi.org/10.1080/00908320.2015.1054746. Irrespective of the maritime zones falling within Russia's sovereignty or jurisdiction, the legal framework governing navigation on the NSR remains consistent along its full extent, pertaining to the permitting process for vessel passage, irrespective of the flag under which they operate.(16)Ibid.
The legal justification for Russia's authority in this matter is derived from UNCLOS Article 234(17) UNCLOS, supra note 11, Article 234., which grants Russia broader jurisdiction to adopt and enforce laws and regulations within the limits of the EEZ with the aim of environmental protection.(18) Susanah Stoessel, Elizabeth Tedsen, Sandra Cavalieri, and Arne Riedel, “Environmental Governance in the Marine Arctic,” in Arctic Marine Governance (Berlin, Heidelberg: Springer Berlin Heidelberg, 2014), pp. 49-51, accessed September 20, 2023, https://doi-org.ezproxy.uio.no/10.1007/978-3-642-38595-7_3. Consequently, the second concern pertains to Russia's recognition and execution of its expanded enforcement and legislative authority under Article 234, which surpasses the rights granted to other Coastal States in non-Arctic regions, allowing Russia unilaterally to implement more stringent shipping standards and regulations on the NSR.(19) E.J Molenaar, ”Status and Reform of International Arctic Shipping Law,“ in Arctic Marine Governance (Berlin, Heidelberg: Springer Berlin Heidelberg, 2014), pp. 130, 137-140, accessed September 20, 2023, https://doi-org.ezproxy.uio.no/10.1007/978-3-642-38595-7_6.
The final issue to consider is that Russian legal doctrine recognises Russia to exercise authority over the NSR not solely based on international law but rather through a combination of treaty and customary rules of law, as well as the application of national legislation that reflects the intricate history of Arctic exploitation.(20) R. Douglas Brubaker, The Russian Arctic Straits (Leiden, The Netherlands: Brill | Nijhoff, 2005), pp. 28-31, accessed September 26, 2023, https://search-ebscohost-com.ezproxy.uio.no/login.aspx?direct=true&db=nlebk&AN=173750&site=ehost-live&scope=site. The Russian legislation demonstrates a form of “creative ambiguity” or “dualistic approach” in its treatment of the NSR, considering it as a historical route falling under complete Russian sovereignty, based on the doctrine of historical internal waters.(21) Tatiana Sorokina and William G. Phalen, "Legal Problems of the Northern Sea Route Exploitation: Brief Analysis of the Legislation of the Russian Federation," in International Marine Economy (Leiden, The Netherlands: Brill | Nijhoff, 2017), pp. 104, 114-115, accessed September 24, 2023, https://doi-org.ezproxy.uio.no/10.1163/9789004323445_004.
The aforementioned issues have sparked discussions regarding the extent to which Russia's legal position concerning the NSR can be definitively considered justified in accordance with the principles of the law of the seas outlined in UNCLOS. Additionally, there are debates surrounding whether Russia's domestic legislation pertaining to the NSR conflicts with international maritime law and can be characterised as excessive, discriminatory, and not tailored to meet the needs of international shipping.