4.1 Navigational rights and freedoms granted to the merchant ships on the NSR: Russia’s abusive implementation of Article 234?
Russia has incorporated the provisions of maritime zone delimitation into its domestic maritime law, aligning them in full resemblance with UNCLOS. Russian legislation clearly defines the status and legal framework governing Russia’s internal waters, territorial waters, and the EEZ, outlining the rights of Russia and other states(1) FL No. 191-FZ, "On the Exclusive Economic Zone of the Russian Federation", dated 17 December 1998. Available on: https://www.consultant.ru/document/cons_doc_LAW_21357/. FL No. 155-FZ, supra note 122. , including the codification of the right of innocent passage(2) FL No. 155-FZ, supra note 122, Article 10, 11. and freedom of navigation(3) FL No. 191-FZ, supra note 140, Article 6. within each specific maritime zone.
The regulation of Arctic waters, like other regions of the world’s oceans, is undeniably governed by UNCLOS, consequently serving as the basis for the establishment of the legal framework pertaining to the NSR.(4) Yoshifumi Tanaka, The International Law of the Sea (Cambridge: Cambridge University Press, 2012), pp. 305-306, accessed November 2, 2023, doi:10.1017/CBO9780511844478. The primary inquiry at hand pertains to the unresolved matter of whether Article 234 permits Russia to surpass its jurisdictional powers as delineated by the UNCLOS within each distinct maritime zone, along the NSR.
Article 234 is commonly regarded as a provision focused on environmental protection, primarily due to its placement in Part 12 of UNCLOS, which pertains to the protection and preservation of the marine environment.(5) UNCLOS, supra note 11, Part 12. Given the fact that Article 234 stands out as the sole provision included in Section 8 of UNCLOS, it would be incorrect to consider it an entirely autonomous. Thus it shall be read in concert with other UNCLOS provisions, as asserted by the fact that: “States are then enjoined individually and collectively to take all measures consistent with this Convention that are necessary to prevent, reduce, and control pollution of the marine environment from any source (…)” and “(…) shall endeavour to harmonize their policies in this connection”(6)Ibid., Article 194(1)., as well as States shall “(...) refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention”(7)Ibid., Article 194(4)..
As it was established in Section 3.2.2, Russia is entitled to legislate within Article 234’s scope, only in Russia’s territorial waters and EEZ. The analysis of Coastal State jurisdictional powers within the EEZ and territorial waters outlined in Sections 2.3 and 2.4, is found to be in sharp contrast to the broad legislative powers outlined in Article 234. Within these zones encompassed by the NSR, Russia is empowered to unilaterally prescribe more stringent CDEM standards and granted unilateral legislative authority to address matters concerning the preservation of the marine environment and vessel-source pollution, containing more stringent standards than GAIRAS, and not being subject to pre-approval or review by the IMO.(8) Myron H. Nordquist, Rosenne Shabtai, Alexander Yankov and Neal R. Grandy, United Nations Convention on the Law of the Sea: 1982: A Commentary. Volume IV Articles 192 to 278 Final Act Annex Vi (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991), pp. 395-397.
The lack of these safeguards and constraints on Russia's legislative jurisdiction opens a “pandora box”, allowing Russia to “legitimately” expand its jurisdictional powers over all the marine zones covered by the NSR, which could be seen as a favourable outcome for Russia. It goes against the primary objective of the UNCLOS, that intends to settle the dispute of Coastal States over-extending maritime claims by granting them jurisdictional authority to legislate within the framework of GAIRAS.(9) Aldo Chircop, “Jurisdiction over Ice-Covered Areas and the Polar Code: An Emerging Symbiotic Relationship?” The Journal of International Maritime Law 22 (2016): pp. 281-282, accessed October 20, 2023, available on: Academia.edu. Such a deficiency in Article 234 has led to Russia's practice of “creeping jurisdiction,“(10) Ringbom, supra note 50, pp. 14, 249-250, 276-277. with distinct features of “sovereignty”, which extends beyond the territorial waters encompassed by the NSR to include the EEZ.
However, recently there has been an observable progression on this matter, specifically a transition from a unilateral to a more global approach, as well as a shift from a broad to a more limited interpretation of Article 234. In 2017, the IMO developed the International Code of Safety for Ships Operating in Polar Waters (hereinafter “Polar Code”), establishing obligatory regulations on the design, construction, equipment, and operations of ships navigating in the polar regions.(11) IMO. International Code for Ships Operating in Polar Waters (Polar Code). Available on: https://www.imo.org/en/ourwork/safety/pages/polar-code.aspx. Accessed October 12, 2023. The primary rationale for this assertion is that the Polar Code can be seen as being a component of the GAIRAS framework.(12) Øystein Jensen, “The International Code for Ships Operating in Polar Waters: Finalization, Adoption and Law of the Sea Implications,” Arctic Review on Law and Politics 7, no. 1 (2016): pp. 71–75, accessed October 17, 2023, https://www.jstor.org/stable/48710410.
On the one hand, Russia continues to adhere to its “creeping jurisdiction” strategy, arguing that Article 234 remains crucial as it offers additional measures for Russian actions. Russia asserts that the Polar Code has limitations and is inadequate in ensuring the safety of navigation and protection of the marine environment(13) Viktoriya Nikitina, ”The Arctic, Russia and Coercion of Navigation,” Arctic Yearbook (2021): p. 9, accessed October 27, 2023, available on: https://arcticyearbook.com/arctic-yearbook/2021/2021-scholarly-papers/376-the-arctic-russia-and-coercion-of-navigation. , because it does not cover all vessels (only vessels under relevant conventions as SOLAS, MARPOL, STCW)(14) IMO, supra note 150. traversing the NSR, thus implementing specific regulations that apply to all vessels and the requirements necessary to obtain a navigation permit. (See discussion further).
On the other hand, certain Russian academics view the implementation of the Polar Code as a significant advancement in moving away from Russia's broad interpretation of Article 234, arguing that it is a great step towards reducing Russia's ability to unilaterally engage in environmental conservation efforts while subjecting Russia’s legislation to GAIRAS and IMO supervision.(15) Anna Viktorovna Kotlova, French international legal doctrine on the status of the Arctic (PHD), Moscow, 2019: pp. 70-72, accessed October 12, 2023, available on MGIMO website: https://mgimo.ru/upload/diss/2019/ehac-ran-red-kotlova.pdf.
The latter perspective is deemed more favourable due to its inclination towards interpreting Article 234 by Russia in a manner that prioritises the preservation of the “common good of international shipping”, while aiming to enhance the safety, predictability, and efficiency of international shipping activities along the NSR while safeguarding the distinctive ecology of the polar region.(16) Jiayu Bai, "The IMO Polar Code: The Emerging Rules of Arctic Shipping Governance," The International Journal of Marine and Coastal Law 30, 4 (2015): pp. 680, accessed November 1, 2023, https://doi-org.ezproxy.uio.no/10.1163/15718085-12341376. The implementation of a standardised worldwide framework is expected to facilitate the achievement of the objective to establish the NSR as a highly competitive global transportation market.(17) Anna Davis and Ryan Vest, “Foundations of the Russian Federation State Policy in the Arctic for the Period up to 2035,” RMSI Research (5) (2020): pp. 4-8, 14, accessed November 3, 2023, available on: https://digital-commons.usnwc.edu/rmsi_research/5.
Based on the analysis above, it appears that Article 234 has the potential to disrupt the equilibrium established by UNCLOS – between navigation and pollution prevention, potentially favouring the latter to a significant extent.(18) Chircop, supra note 148, pp. 278-281. Nevertheless, there are legal scholars who contend that Russia, in accordance with Article 234, should confine its laws and regulations solely to addressing the prevention, reduction, and control of marine pollution, and Russia's jurisdiction should be limited to regulating solely vessel-source pollution(19) Peter Luttmann, "Ice-Covered Areas under the Law of the Sea Convention: How Extensive are Canada’s Coastal State Powers in the Arctic?" Ocean Yearbook Online 29, 1 (2015): p. 96, accessed October 4, 2023, https://doi-org.ezproxy.uio.no/10.1163/22116001-02901006., not extending to any additional rights in terms of navigation regulation.
This view is supported by the inclusion of the “due regard to navigation” provision that acts as a limitation to Russia’s jurisdiction with respect to control over navigation on the NSR. (See discussion in Section 3.2.1). Not in vain Permanent Court of Arbitration in Chagos Arbitration interpreted “due regard” obligation as:
(…) the ordinary meaning of “due regard” calls for the United Kingdom to have such regard for the rights of Mauritius as is called for by the circumstances and by the nature of those rights. (…) The Convention does not impose a uniform obligation to avoid any impairment of Mauritius’ rights; nor does it uniformly permit the United Kingdom to proceed as it wishes, merely noting such rights. Rather, the extent of the regard required by the Convention will depend upon the nature of the rights held by Mauritius, their importance (…) (20) Chagos Marine Protected Area Arbitration, supra note 25, para. 519.
It can be argued that the concept of “due regard” entails that Russia should demonstrate respect and preserve the rights of innocent passage in territorial waters and freedom of navigation in the EEZ contained by the NSR. In this context, it is imperative for Russia to adhere to the overarching navigational principles outlined in UNCLOS. (See Section 2.3 in respect to territorial waters and Section 2.4 in respect to the EEZ).
From this standpoint, the Russian legislation that allows for the adoption of the unified legal regime of the NSR in terms of navigation and imposes restrictions on navigation to ensure safety and environmental protection, triggering Article 234(21) Nikitina, supra note 152, p. 9., is argued to be incongruous with UNCLOS. A similar argument can be made about the consolidation of various maritime zone regimes present on the NSR into a unified framework of internal waters, which entails Russia's exercise of extensive jurisdictional authority. (See discussion in Section 3.3). Russia's purported “creeping jurisdictional” or “sovereignty” ambitions under the guise of Article 234, appear to lack substantial support in UNCLOS.
In terms of Russia's jurisdiction for enforcement, Article 234 does not grant any supplementary enforcement powers pertaining to laws on environmental protection and vessel source pollution in ice-covered regions (NSR). Therefore, the enforcement powers of Russia are constrained to the requirements outlined in the general enforcement provisions of the UNCLOS. (See Section 2.3 in respect to Russia’s enforcement powers in territorial waters and Section 2.4 in respect to the EEZ). It is well asserted by the Permanent Court of Arbitration in the Kingdom of the Netherlands v. Russian Federation (Arctic Sunrise Arbitration), concerning the Dutch vessel entered the EEZ of Russia encompassed in the NSR without permission.(22) Kingdom of the Netherlands v. Russian Federation (Arctic Sunrise Arbitration), Permanent Court of Arbitration, Award in Case No. 2014–02, 10 July 2017. Tribunal held that:
(…) it is not satisfied that the boarding, seizure, and detention of the Arctic Sunrise by Russia on 19 September 2013 constituted enforcement measures taken by Russia pursuant to its laws and regulations adopted in accordance with Article 234 of the Convention (…)(23)Ibid., para. 296. and (...) these measures did not constitute a lawful exercise of Russia’s enforcement rights as a coastal State under Articles 220 or 234 of the Convention.(24)Ibid., para. 297.
It is not feasible to express dissent with the statement made by the Dutch Minister in this regard: “Article 234 (…) is no license to inhibit the freedom of navigation without restrictions.”(25) Ringbom, supra note 50, pp. 209-210.
In conclusion, there is a grain of truth in Huebert’s and Lackenbauer’s assertion regarding the evolving nature of international shipping and the potential impact of climate change on the NSR which states that the Arctic should not be regarded as an exceptional region but rather as one that is gradually aligning with other areas of the World Ocean.(26) P.Whitney Lackenbauer and Rob Huebert, eds., “An Important International Crossroads,” in (Re)Conceptualizing Arctic Security (Centre for Military, Security and Strategic Studies, University of Calgary, 2017), pp. iv-xii, available on: Academia.edu.