1.2 Methodology and Limitations
To examine the research questions, the basic methodological technique employed in this study is doctrinal legal research that involves the utilisation of textual analysis and statutory interpretation. Special attention is paid to general UNCLOS maritime zone delimitation and enforcement provisions, as well as Article 234. Additionally, it entails a focused examination of the Russian legal framework governing the NSR. The objective of this approach is to comprehend the purpose, scope, and significance of certain provisions, employing canons of statutory construction and legal principles as guiding tools for the process of interpretation. Specifically, in the interpretation of UNCLOS, the methodology involves utilizing canons like the “ordinary meaning of terms” rule, “contextual and teleological interpretation”, “object and purpose” analysis, etc.(1) United Nations, Vienna Convention on the Law of Treaties (VCTL), Vienna, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331, Article 31, 32. Available on: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
In terms of the interpretational analysis of general maritime zone delimitation provisions, there exists a widespread agreement within the legal community concerning the distinct legislative and enforcement jurisdictional powers, rights, and obligations of Coastal States, as well as unambiguous allocation of navigational rights and freedoms within each particular maritime zone, as stipulated in UNCLOS. When it comes to the Arctic and the application of Article 234, it continues to present challenges in terms of interpretation and understanding. The intricate nature of the Article, the absence of legally binding court rulings that might provide necessary clarifications, and the differing practises among Arctic Coastal States further contribute to the complexity of studying this topic.
When concerning Russian law pertaining to the NSR, the methodology involves literal interpretation of the words in the relevant legal texts, teleological interpretation analysing laws based on their purpose and intent, as well as historical interpretation considering the evolution of certain legal acts.
In terms of Russian legislation regarding the NSR, it can be observed that Russian law is characterised by its “abundance”: confusing “ladders of legal acts” that often refer to, elucidate, or modify one another, resulting in a complex framework that poses difficulties in identifying the starting and ending points. Furthermore, the NSR legislative framework can be categorised as an example of dualistic approaches, characterised by the presence of varying terminology in comparable legal acts that often seems to be used without an object or purpose but just for “cosmetic purposes”, as well as a constant pattern of shifting perspectives among Russian/Soviet legislators in the course of history.
It is important to acknowledge that access to legal documents related to Russia's legislative framework for the NSR, especially historical data, as well as scholarly publications on this subject, particularly those written by Russian scholars and published in Russian sources, whether in physical or online databases, was found to be limited. The accessibility of a substantial fraction of the documents to the public may have potentially constrained the scope of the analysis.
Equally significant is the utilisation of comparative legal and legal harmony analysis that helps to examine the extent to which Russian domestic law pertaining to the NSR conforms, deviates, or requires alignment with UNCLOS legal framework, with particular focus on the analysis of Russia’s jurisdictional powers and navigational rights/freedoms of foreign merchant ships in the Arctic. It is widely recognised that Russia is a signatory to the UNCLOS, so voluntarily consenting to the process of “internationalising” its domestic maritime legislation. The current trend in NSR legislation indicates a growing alignment with international maritime law, if not considering certain nationalistic postures and “creeping jurisdictional” tendencies, as witnessed in Russian legal doctrine. For this purpose, the research touches upon the discussion of how Russia incorporates and harmonises UNCLOS legal norms and principles, as well as how these are enforced within the Russian legal context.
Moreover, case law analysis and testing of legal precedents aim to examine The Republic of Philippines v. The People's Republic of China (hereinafter “South China Sea Arbitration”)(2)The Republic of Philippines v. The People's Republic of China (South China Sea Arbitration), Permanent Court of Arbitration, Award in Case No. 2013–19, 12 July 2016.for evaluating Russia's historic waters claim over the NSR. The legal significance of this specific case cannot be overstated, as it stands as the only case in the 21st century that pertains to the matter of historic waters and holds considerable importance in establishing a precedent for future court rulings or arbitration decisions. This is particularly relevant due to the anticipated effects of climate change in the Arctic region and the potential limitations on the applicability of Article 234 to Arctic spaces. In light of these circumstances, Russia may seek to employ the historic waters approach to justify and protect its complete sovereignty over the NSR. Therefore, considering the non-treaty basis of the historic waters doctrine and the lack of a universally accepted definition of historic waters in international law, it is crucial to utilise the standards and criteria specified in the South China Sea Arbitration. Nevertheless, it is important to acknowledge that the assessment of Russia's assertion of historical internal waters claim over the NSR required a considerable amount of subjective analysis and interpretation.
Finally, the theoretical framework of this study is established through a comprehensive review of relevant legal literature pertaining to the determination of the legal status and the analysis of regulation of navigation in the NSR waters. This literature includes works by prominent Russian scholars such as A.N. Vylegzhanin, V.V. Gavrilov, P.A. Gudev, and other authors, as well as contributions from international scholars such as Jan Jakub Solski, Erik Molenaar, Douglas Brubaker, and others. Examination of scholarly works, particularly those authored by scholars from Russia in comparison to their, for example, US or UK counterparts, revealed the presence of intrinsic biases and viewpoints. Evaluating these works for impartiality and independence posed a limitation. Furthermore, a notable lack of available resources pertaining to the topics under investigation, particularly a dearth of legal examination and evaluation of the regulatory framework for prior authorization regime in the NSR, posed a significant limitation as well.
The regulatory framework governing this work is based on international treaties such as UNCLOS, judicial decisions of the Permanent Court of Arbitration and International Court of Justice (hereinafter “ICJ”) such as United Kingdom v. Norway(3)United Kingdom v. Norway (Fisheries case), Merits, International Court of Justice Judgment, ICJ Rep 116, ICGJ 196, 18th December 1951. (hereinafter “Fisheries Case”) and Mauritius v. United Kingdom(4) Mauritius v. United Kingdom (Chagos Marine Protected Area Arbitration), Permanent Court of Arbitration, Award in Case No. 2011–03, 18 March 2015. (hereinafter “Chagos Arbitration”), as well as Russian domestic legal acts such as 2020 NSR Navigational Rules(5) Decree of the Government of the Russian Federation No. 1487 “On approval of the Rules of navigation in the waters of the Northern Sea Route”, dated 18 September 2020, as amended 1 September 2023. Available on: https://www.consultant.ru/document/cons_doc_LAW_362718/6801bb4b205f6a33dee02718211e57d1b8d3aaf5/#dst100008. . Such a methodological approach serves to offer a more comprehensive framework and diverse viewpoints regarding the subjects being examined.