5.4 Interplay between Russia’s historic waters claim and UNCLOS
In conclusion, the Tribunal presented another compelling argument that lends further credence to the results presented above and offers elucidation on the legitimacy of Russia's historical entitlements over the NSR. Particularly noteworthy are the Tribunal's findings about the interdependence between historic waters claims and the UNCLOS.
Tribunal stated that:
(…) the system of maritime zones created by the Convention was intended to be comprehensive and to cover any area of sea (…) The same intention for the Convention to provide a complete basis for the rights and duties of the States Parties is apparent in the Preamble, which notes the intention to settle “all issues relating to the law of the sea” and emphasises the desirability of establishing “a legal order for the seas” (…) no reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention. (1)Ibid., para. 245.
Based on the aforementioned, it is probable that the Tribunal would arrive at a similar determination concerning Russia's claim as it did with China's claim. Russia's purported assertion of historic “sovereignty” and historic rights over navigation appears to be inconsistent with UNCLOS(2)Ibid., para. 262., as UNCLOS effectively and thoroughly covers the rights of other states (including navigational rights and freedoms) in relation to each maritime zone, hence eliminating any possibility of asserting historic rights.(3)Ibid., para. 246. It is noteworthy that Russia's claim potentially surpasses the boundaries of its maritime zones as defined by UNCLOS(4)Ibid., para. 246. and exceeds the geographic and substantive limits of Russia's maritime entitlements under the Convention. Russia’s accession to the UNCLOS automatically “(…) reflected a commitment to bring incompatible historical claims into alignment with its provisions (...)”.(5)Ibid., para. 262. It can be inferred that the legal framework governing the NSR should align with UNCLOS in its entirety.
Thus, the NSR cannot be considered a unified regime of the Russian internal waters, and the prior authorization regime, together with the claim of full control over international navigation on the NSR, justified as an act of “Russian sovereignty” under the notion of historic waters, is deemed to be not only unlawful but also inconsistent with UNCLOS.
This conclusion is substantiated by scholarly literature. According to Ingrid Handeland, “(…) the historic title-claim cannot be taken into consideration in the NSR (…)”(6) Ingrid Handeland, “Navigational Rights for Warships in the Northwest and Northeast Passages,” Arctic Review on Law and Politics, Vol. 13 (2022): p. 151, accessed November 15, 2023, http://dx.doi.org/10.23865/arctic.v13.3383. , Jan Jacub Solski suggests that “(...) Russia’s current historic waters claims within the NSR are relatively circumspect (...)”(7) Solski, supra note 199, p. 389., Blum asserts that the doctrine of historic waters has been overtaken by the current international law of the sea regime, considering it “(...) as relics of an older and by now largely obsolete regime (...)”.(8) Yehuda Z. Blum, “The Gulf of Sidra Incident,” in Will “Justice” Bring Peace? (Leiden, The Netherlands: Brill | Nijhoff, 2016): p. 383, accessed November 25, 2023, https://doi-org.ezproxy.uio.no/10.1163/9789004233959_025.