5.1 Introductory remarks
The Russian legal doctrine regarding the legal status of the NSR can be seen as having two main aspects. First, it emphasizes the exercise of Russian jurisdiction over the NSR in accordance with Article 234. Second, it relies on customary international law, asserting Russia’s sovereign jurisdiction over the NSR and treating it as historic waters (internal waters).(1) A. N. Vylegzhanin, V.P. Nazarov, and I.V. Bunik, “Northern Sea Route: towards solution of political and legal problems,” Vestnik Rossijskoj akademii nauk 90 (12) (2020): pp. 1106, 1108-1109, accessed October 3, 2023, DOI: 10.31857/S0869587320120270. The latter alternative perspective could potentially serve as a “backbone” option, apart from UNCLOS Article 234(2) Ringbom, supra note 50, p. 196. , enabling Russia to lawfully assert control over international navigation through the imposition of a prior authorization regime and treat the NSR as an integral transportation route under Russian ownership, subject to a unified legal regime. The extent to which Russia's establishment of the legal framework for the NSR employs either the first approach, the second approach, or a combination of both remains unclear in practical terms.
However, this second perspective is extensively supported by Russian international law scholars, who present the NSR as a straightforward case of complete sovereignty.(3) P.A. Gudev, ”The Northern Sea Route: problems of national status legitimization under international law. Part I,” Arktika i Sever [Arctic and North] no. 40 (2020): p. 117, 127, accessed October 2, 2023, DOI: 10.37482/issn2221-2698.2020.40. Nevertheless, Russian law’s NSR reference as a “historically developed national transport line of communication of the Russian Federation,”(4) FL No. 155-FZ, supra note 122, Article 14. makes it uncertain whether the aim of this clause is to invoke any additional sovereign rights over the NSR or just assuage nationalistic sentiments.(5) Jan Jacub Solski, “The Northern Sea Route in the 2010s: Development and Implementation of Relevant Law,” Arctic Review on Law and Politics, 11 (2020): p. 389, accessed on September 29, 2023, https://doi.org/10.23865/arctic.v11.2374.
Clarifying the validity of Russia's historic claim over the NSR would be highly beneficial, given the fact that Russia's claim might be used to support an alternative interpretation in the future, especially if the applicability of Article 234 is questioned because of climate change.(6) Gavrilov, supra note 95, p. 5.