6 Conclusion
Based on the conducted research, it is possible to derive the following findings.
The analysis revealed that UNCLOS clearly codifies the legislative and enforcement powers of Coastal States within each specific maritime zone, with these powers diminishing proportionally as one moves further away from the coast. Furthermore, the convention grants foreign merchant ships the right of innocent passage within territorial waters and the freedom of navigation within the EEZ. The observation has been made that UNCLOS maintains an equilibrium between the rights and freedoms of navigation and the jurisdiction of Coastal States.
Nevertheless, in the Arctic, the equilibrium appeared to be increasingly tilted in favour of the Coastal State jurisdiction. The primary rationale for this is the absence of a consensus within the legal community over the appropriate way to interpret and apply Article 234. The study addressed this matter by conducting a comparative analysis of several interpretational methodologies and determining the “most accurate” one.
Firstly, it was determined that Article 234 cannot be regarded as an independent provision within UNCLOS framework. Instead, it should be read in conjunction with general maritime zone delimitation, navigational, and enforcement provisions. Secondly, it was established that the Article’s territorial scope encompasses not only the EEZ but also the territorial waters. Thirdly, it was concluded that Article confers upon Coastal States the unilateral legislative jurisdiction in terms of environmental protection and vessel source pollution that does not encompass the authority to regulate navigational rights and freedoms. The concept of “due regard to navigation,” which acts as the primary limitation on the legislative jurisdiction, has been determined to encompass both the duty to preserve the right of innocent passage in territorial waters and the freedom of navigation in the EEZ. The study revealed that this de-minimis interpretation was perceived as more advantageous in terms of emphasising the preservation of the “common good of international shipping.”
Regarding Russia, it has been discovered that the country capitalises on the legal ambiguity resulting from the interpretation of Article 234. This allows Russia to “justify” its legislative framework for the NSR by employing the reading of the article that best serves its interests. In contrast to the suggested Article 234’s de-minimis interpretation, it was seen that Russia employed its de-maximis interpretation. A comprehensive examination of the Russian NSR’s legislation has revealed that Russia explicitly recognises its complete sovereignty over the NSR.
The present analysis determined that the way Russia interprets Article 234 can be deemed excessive. It was observed that Article 234 does not permit the conversion of unilateral legislative jurisdiction for environmental protection and vessel source pollution into complete sovereignty. Furthermore, both Article 234 and UNCLOS do not permit Russia to lawfully merge three distinct legal frameworks, namely those governing internal waters, territorial waters, and the EEZ, into a single framework governing internal waters. Finally, Russia's legislative actions, which unilaterally restrict the right of innocent passage and freedom of navigation in the territorial waters and EEZ encompassed within the NSR, were found incompatible with UNCLOS.
In order to provide a more comprehensive analysis on this matter, a thorough examination was conducted to analyse the prior authorisation regime placed on the NSR through the 2020 Navigational Rules. Initially, it has been determined that according to the UNCLOS, foreign merchant vessels are not required to get permission or consent from Coastal States to utilise their navigational rights and freedoms, both within territorial waters and the EEZ. Moreover, it has been concluded that the requirement for vessels to provide specific certificates and documentation to Russian authorities to obtain permission to enter the NSR poses significant difficulties in aligning with Article 234’s environmental protection objective. Furthermore, the aforementioned requirement, which places the burden of proof on the vessel (Flag State), was found to be inconsistent with the UNCLOS, as UNCLOS explicitly prohibits the practice of “pre-emptive” verification of whether vessels engaged in innocent passage or exercising the freedom of navigation have the necessary documentation on board. The importance of the NSR's prior authorization regime in attaining Article 234 goals has been shown to be limited, while continuing to impose burdensome constraints on commercial shipping that appeared to be counterproductive to the NSR's international viability.
Finally, the study clearly demonstrated the presence of dualistic approaches within the legislation pertaining to the NSR. It has been established that in addition to legislating based on Article 234, Russian legal doctrine seeks to apply customary international law, specifically the doctrine of historical waters, as a “backbone option” to substantiate Russia's claim of sovereignty over the NSR.
The existence of the institution of “historical waters” has been affirmed by the doctrine of international law. Despite the fact that the doctrine lacks a formal treaty basis, the classification of a water area (maritime zone) as internal waters of the Coastal State, the establishment of a historic title, and the right to assert sovereignty over such areas were found to require the presence of three essential criteria: the effective exercise of jurisdiction, the passage of time, and the acquiescence of foreign states.
The current research examined Russia's historic waters claim over the NSR in light of the aforementioned criteria as well as the Tribunal’s reasoning in the South China Sea Arbitration. The findings indicated that Russia's claim is unlikely to meet any of the criteria. Even under optimal circumstances for Russia, the fulfilment of one or a few conditions will still be insufficient to substantiate the claim. Moreover, the Tribunal's observations led to the conclusion that Russia's historic waters claim over the NSR holds little relevance. This is due to the fact that Russia, by becoming a party to the UNCLOS, has effectively renounced any potential claims to historic waters, aligning itself with the provisions outlined in the UNCLOS.