MarIus

5.3.1 Russia’s claim v. China’s Claim: comparison

The Tribunal codified China’s historic waters claim as follows:

China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. China’ s sovereignty and relevant rights in the South China Sea, formed in the long historical course, are upheld by successive Chinese governments, reaffirmed by China’ s domestic laws on many occasions, and protected under international law including the UNCLOS. ^{(2) South China Sea Arbitration, supra note 23, para. 61.}

It is noteworthy that by substituting the terms “China” with “Russia” and “South China Sea” with “NSR”, one can observe a striking resemblance to Russia's historical assertion over the NSR, as articulated in Russian legal doctrine and scholarly literature.

Although court decisions have recognised the concept of historic waters, there is a lack of specific definition or reference to historic waters in any of the conventions, including UNCLOS.^{(3) Mirasola, supra note 216, pp. 49-51.} Historic title claims are noteworthy due to their capacity to establish rights and duties that extend beyond the scope of the UNCLOS.^{(4) Wu Shicun, and Keyuan Zou, Arbitration Concerning the South China Sea: Philippines versus China (London, England: Routledge, 2016), pp. 138-143, accessed November 2, 2023, https://doi.org/10.4324/9781315567488.} The assertion is made by a multitude of legal specialists^{(5) Clive R. Symmons, “Historic Rights and the ‘Nine-Dash Line’ in Relation to UNCLOS in the Light of the Award in the Philippines v. China Arbitration (2016) concerning the Supposed Historic Claims of China in the South China Sea: What now Remains of the Doctrine?”, p. 3, available on: https://cil.nus.edu.sg/wp-content/uploads/2017/01/Session-2-on-Historic-Rights-Clive-Symmons-Paper.pdf. Mirasola, supra note 216, p. 69.} , as well as the Tribunal itself^{(6) South China Sea Arbitration, supra note 23, paras. 218-229.}.

During the analysis of China's historic claim, the Tribunal made a distinction between two concepts: “historic rights” and “historic title” claims. The phrase “historic title” is employed to clearly denote historical sovereignty over land or marine areas, whilst “historic rights” is a broader and more encompassing term.^{(7)Ibid., para. 222.} The Tribunal's determination that China's rights over resources fell within the category of “historic rights falling short of sovereignty”^{(8)Ibid., para. 226.} suggests that Russia's possible claim is unlikely to fit within the same category. Instead, Russia's claim appears to be more excessive and leans towards a historic title claim. From a rational perspective, one could make the argument that if China's assertion of historic rights, which does not amount to full sovereignty, were to be restricted according to specific criteria^{(9)Ibid., para. 225, 265.}, then Russia's claim of historic title, which includes complete sovereignty, might require an even greater burden of proof than that of historic rights. Is Russia well equipped to effectively confront the challenge?

5.3.2 Effective exercise of jurisdiction

It is crucial to assess the extent to which Russia meets the criterion of “effective exercise of jurisdiction” over the NSR. The Tribunal asserted that the extent of a claim to historical rights or title is contingent upon the extent of the actions undertaken in the exercise of said claimed rights or title.^{(10)Ibid., para. 226.} To establish its exclusive authority over the area in question, Russia is required to present compelling evidence that substantiates its historical record of activities in the NSR, thereby asserting exceptional rights over navigation.^{(11)Ibid., para. 268.} Additionally, Russia must demonstrate that it has undertaken all requisite measures to establish and sustain its exclusive jurisdiction in the region.^{(12) Krittika Singh, and Timo Koivurova, "The South China Sea Award: Prompting a Revived Interest in the Validity of Canada’s Historic Internal Waters Claim?", The Yearbook of Polar Law Online10, 1 (2019): pp. 394-395, accessed November 10, 2023, https://doi.org/10.1163/22116427_010010017.}

Firstly, insufficient will be the evidence that solely indicates extensive Russian navigation on the NSR.^{(13) South China Sea Arbitration, supra note 23, para. 270.} Therefore, the swift conclusions made by Gudev, Melnikov, Morgunov and Zhuravleva regarding Russia's achievements in the Arctic, specifically in terms of the discovery and development of Arctic spaces, and the assertion that the right of discovery alone is enough to extend the sovereignty of the Russian State to these spaces^{(14) Gudev, supra note 197, pp. 117-118.B. Morgunov, I. Zhuravleva, B. Melnikov, “The Prospects of Evolution of the Baseline Systems in the Arctic,” Water 13, 1082 (2021): pp. 12-14, accessed November 6, 2023, https://doi.org/10.3390/w13081082.}, appear to lack validity. The assertion that the historical origins of the NSR can be traced back to the initial expeditions of the Cossacks in the 16th – 17th centuries and its subsequent development throughout the periods of the Russian Empire and the Soviet Union,^{(15) Morgunov, supra note 232.} appears to hold limited relevance in establishing the historical legitimacy of the NSR; mere assertions of sovereignty lack adequacy.^{(16) Yehuda Z. Blum, “The Requirements for the Formation of an Historic Title and Its Constituent Elements,” in Historic Titles in International Law (Dordrecht: Springer Netherlands, 1965), pp. 117-118, accessed November 8, 2023, https://doi.org/10.1007/978-94-015-0699-1_4. United Nations, supra note 209, para. 167.}

Secondly, there is a requirement for Russia to consistently exert authority (sovereignty) over the NSR to legitimately assert it as historic waters. A jurisdiction that possesses a narrower range of powers than sovereignty is insufficient.^{(17) United Nations, supra note 212, paras. 85-87.} Moreover, actions through which Russia openly demonstrates its intention to exert power over NSR shall originate from the Russian State or its respective organs and be public in nature.^{(18)Ibid., paras. 89–97.} After conducting an analysis of the Soviet legislation, it might seem that the criteria cannot be met. The piecemeal nature of Russian/Soviet legislation on the NSR and the inconsistent comments made by the Soviet/Russian leadership contribute to the perceived “legal ambiguity” surrounding this matter,^{(19) Helge Blakkisrud, “Governing the Arctic: The Russian State Commission for Arctic Development and the Forging of a New Domestic Arctic Policy Agenda,” Arctic Review on Law and Politics, Vol. 10 (2019): p. 195, accessed November 4, 2023, http://dx.doi.org/10.23865/arctic.v10.1929.} as discussed below.

In the early 1960s, the Soviet authorities officially claimed ownership on historical grounds of several straits and seas on the NSR, including the Viklitsky, Shokalsky, Dmitry Laptev, and Sannikov straits, as well as the Kara, East Siberian, Chukchi, and Laptev seas.^{(20) Rossi, supra note 128, pp. 481-482, 500-502.} Further, Article 6(4) of the Law “On the State Border of the USSR” defined Soviet internal waters as “the waters of bays, estuaries, seas, and straits that historically belonged to the USSR.”^{(21) USSR Law “On the State Border of the USSR”, dated 24 November 1982, Gazette of the USSR Armed Forces, No. 48, Article 6. Available on: https://www.consultant.ru/cons/cgi/online.cgi req=doc&base=ESU&n=1534#HZ3MkwTCmRDymqCw.} Thus, the Government supported the state's right under international law to classify not just particular bays but also other maritime spaces (seas and straits) in the Russian Arctic as historical (internal) waters. However, in 1984 and 1985, the Council of Ministers of the USSR adopted resolutions that declared the Kara Sea, Laptev Sea, and East Siberian Sea not internal waters of the USSR on historical grounds; only the White Sea, Czech, and Baydaratskaya Bays were considered USSR internal waters^{(22) Resolution of the Council of Ministers of the USSR, dated 7 February 1984, available on: https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/RUS_1984_Declaration.pdf.}, contrary to the Soviet international legal doctrine of the time.^{(23) Gudev, supra note 197, pp. 122, 124, 126-127, 133.} The Vilkitsky, Sannikov, Shokalsky Dmitry Laptev straits, which connect the Kara Sea to the Laptev Sea, also left the USSR's internal waters.^{(24) Resolution of the Council of Ministers of the USSR, dated 15 January 1985. Available on: https://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/RUS_1985_Declaration.pdf.}

Equally significant is the observation that the exercise of jurisdiction over the NSR by the Soviet/Russian government can be classified as de-facto before the implementation of Federal Law No. 155-FZ of July 31, 1998^{(25) FL No. 155-FZ, supra note 122, Article 14.}, as evidenced by an analysis of the historical evolution of NSR legal frameworks. In this normative legislative act, the legal regime of the “entire” NSR was de jure established for the first time in Soviet and Russian legislation, specifically addressing (encompassing) internal waters, territorial waters, and the EEZ of Russia, and for the first time, the official recognition of the “entire” NSR’s historic title was documented by legislative means.^{(26) Bekyashev, supra note 126, pp. 278-279.} The absence of explicit recognition or emphasis on sovereignty over the NSR in Russian/Soviet legislation and statements made by Russian authorities before 1998 raises inquiries.^{(27) Blakkisrud, supra note 237, pp. 195-196.} As an example, in 1966, the Ministry of Defence of the USSR released a publication titled “A Manual of International Maritime Law”, asserting that the USSR's sovereign rights in the Arctic were derived from its highly productive economic, organisational, and scientific research endeavours in the development of the NSR, including historical discoveries and explorations of the polar seas and islands by Russian navigators.^{(28) Military Publishing Home of the Ministry of Defence of the USSR. Manual of International Maritime Law, p. 273. Available on: https://apps.dtic.mil/sti/tr/pdf/AD0668381.pdf.} Nevertheless, the document failed to provide a clear definition of the exact nature and scope of the sovereign rights being referred to.^{(29) Willy Østreng, ”The Northern Sea Route and Jurisdictional Controversy,” Ocean Futures (2010), available on:http://www.arctis-search.com/tiki-index.php?page=Northern+Sea+Route+and+Jurisdictional+Controversy#32.}

Thirdly, Russia’s sovereignty must be effectively exercised and demonstrated through actions rather than mere declarations.^{(30) South China Sea Arbitration, supra note 23, para. 270.} For instance, as proposed by Bouchez, one way to demonstrate the effectiveness of intentions would be to prevent foreign ships from entering the waters that Russia claims as historic waters.^{(31) Leo J. Bouchez, The regime of bays in international law (Leyden: A. W. Sythoff, 1963), p. 249.} It would be imperative to demonstrate that Russia has historically endeavoured to ban or limit the sailing of vessels from other nations and that these nations have consented to such limitations.^{(32) South China Sea Arbitration, supra note 23, para. 270.}

The initiation of the opening of the NSR for international shipping was undertaken by the Ministry of Maritime Fleet in 1967.^{(33) Irina Andreevna Akimova, Environmental risks of transporting international transit cargo along the Northern Sea Route (Master Thesis), Saint Petersburg, 2016: pp. 47-48, accessed November 24, 2023, available on: http://elib.rshu.ru/files_books/pdf/rid_44ae048fc0c34c899a0d1c8e1df0bbd6.pdf.} Later, the concept of international shipping on the NSR was revitalised by the Murmansk efforts of 1987, and subsequently, the NSR was formally made accessible for international shipping in 1991.^{(34)Ibid., pp. 36-37.} These measures and policies by the Soviet/Russian governments, in their literal and logical interpretation, cannot be characterised as “preventing foreign vessels from accessing the NSR.” Instead, their objective was to facilitate international shipping activities.

5.3.3 Passage of time

While examining Russia's historic claim through the lens of the “passage of time criteria,” it becomes evident that reaching a definitive and unambiguous conclusion is exceedingly challenging. According to the Tribunal's ruling, it is necessary for Russia to have consistently exercised its sovereignty over the NSR for a considerable time.^{(35) South China Sea Arbitration, supra note 23, para. 275.} What is the definition of “considerable time”? The specific duration required to achieve sufficiently extensive usage cannot be specified in a general or theoretical sense.^{(36) Donat Pharand, “Reqirements of Historic Waters,” in Canada's Arctic Waters in International Law (Cambridge: Cambridge University Press, 1988), p. 98, accessed November 9, 2023, doi:10.1017/CBO9780511565458.011.} Determining the appropriate duration for the emergence of usage remains a subjective assessment, given the specific circumstances of the case, of whether the passage of time has resulted in the establishment of a customary practise.^{(37) United Nations, supra note 212, paras. 101–105.}

In the case of Russia, it becomes challenging to determine the precise starting point for measuring the effectiveness of Russia’s sovereignty over the NSR. From which point in time should the count begin, from early historical voyages in the 16-17th centuries, from the regular use of the NSR by the USSR/Russia since the early 1930s for transporting goods, supplies, fuel, and equipment to remote areas in the Russian Arctic mainland and islands^{(38) Gunnarsson, supra note 5, pp. 8-9.} or from the opening of the NSR for international shipping in 1967/1991?

Nevertheless, according to scholarly sources that present a discussion on this matter, the historical claim becomes a reality, and the passage of time commences once the de jure exercise of sovereignty is established.^{(39) Singh, supra note 230, p. 398.} Consequently, it is plausible to propose that the commencement of the Russian historic claim may be traced back to the year 1998. (See Section 5.3.2 above). From this standpoint, it is improbable to assert that a time span slightly over 20 years is adequate to substantiate a historic claim, considering its relatively brief duration from the perspective of international law.

5.3.4 Acquiescence by foreign states

According to the UN Memorandum on “Historic Waters”, to analyse the criteria of “acquiescence by foreign states” it should be understood:

1. what kind of opposition would prevent the historic title from emerging;

2. how widespread in terms of the number of opposing States must the opposition be;

3. when must the opposition occur;^{(40) United Nations, supra note 212, para. 112.}

The Memorandum quotes Fitzmaurice:

Apart from the ordinary case of a diplomatic protest, or a proposal for reference to adjudication, the same effect could be achieved by a public statement denying the prescribing country’s right, by resistance to the enforcement of the claim, or by counter-action of some kind. ^{(41)Ibid., para. 114.}

In this regard, it is vital to highlight that the legal status of Arctic waters, and the NSR in particular, was a subject of active dispute between the US and the USSR. Worth highlighting is the incident that took place in the mid-twentieth century within the waters of the NSR that resulted in the exchange of diplomatic notes between the US and the USSR.^{(42) Vylegzhanin, supra note 195, p. 1112.} Specifically, in 1963, the American icebreaker “Northwind” conducted exploration activities in the Laptev Sea without obtaining prior permission from Soviet authorities, and in the subsequent summer, the ship “Burton Island” explored the East Siberian Sea.^{(43) Andrey А. Todorov, “The Russia-USA legal dispute over the straits of the Northern Sea Route and similar case of the Northwest Passage,” Arktika i Sever [Arctic and North] no. 29 (2017): pp. 75-76, accessed September 4, 2023, DOI:10.17238/issn2221-2698.2017.29.74.} In diplomatic notes sent to the USSR, the US expressed its position that there is no valid legal basis for treating a significant portion of the NSR maritime areas as internal waters on historic grounds.^{(44) Bureau of Oceans and International Environmental and Scientific Affairs. Limits in the Seas: United States Responses to Excessive National Maritime Claims, No. 112, (March 9, 1992): pp. 20-21, 71-73, available on: https://www.state.gov/wp-content/uploads/2019/12/LIS-112.pdf. Accessed November 2, 2023.}

Additionally, it is worth mentioning an incident from 1967 when the US intended to navigate two icebreakers through the entire NSR, but the USSR denied permission.^{(45)Ibid., pp. 72-73.} This denial prompted a protest from the US, as it perceived the denial as a violation of the right of innocent passage through territorial seas.^(46)Ibid.

Thus, the opposition activities undertaken by the US counteract the criteria of “acquiescence or silent agreement by foreign states” in relation to the NSR historic claim. However, it remains challenging to definitively determine if the US opposition alone is sufficient to address the claim. Is there a necessity for a broader and more extensive resistance with a minimum of two or three additional states?^{(47) United Nations, supra note 212, para. 118.} Has the objection to the NSR’s legal framework been effectively expressed prior to the establishment of the NSR’s historic title by Russia?^{(48)Ibid., para. 121.} It remains unclear and is contingent upon the specific circumstances of the case and a thorough examination of the relevant evidence.

Upon careful analysis of the Russian historic internal waters claim using the criteria outlined by the Tribunal, it appears challenging for Russia to substantiate a strong case for the historic internal waters claim. The exercise of sovereignty over the NSR seems to lack effectiveness and substantial duration. Furthermore, the US has shown its opposition to Russia's claim, as evidenced by the occurrence of protests. From this perspective, the drawbacks associated with Russia's assertion of NSR as historic internal waterways exceed the beneficial actions taken in support of this claim.