New Russian Law on Northern Sea Route Navigation: Gathering Arctic Storm or Tempest in a Teapot?
By Andrey Todorov, Former Visiting Scholar of the Russia and Eurasia Program at The Fletcher School
Amid increasing tensions between the West and Russia, Russia’s every move, both political and legislative, is under public scrutiny. A new law regulating the navigation of foreign warships in the Northern Sea Route, whose legal regime has been the subject of a long-standing U.S.-Russian dispute, has garnered much international concern and criticism. However, a sober analysis suggests that many observers’ interpretations of the new law and its implications for Arctic security are overblown.
The Northern Sea Route (NSR) – a set of sea routes along Russia’s northern coastline connecting the Euro-Barents region with the Pacific Ocean – is one of three main passages through the Arctic Ocean, along with the Northwest Passage and yet-to-be-explored Transpolar Arctic Route. Primarily utilized today for domestic purposes and exports of Arctic petroleum and mineral resources, the NSR has, of late, attracted significant attention as a potential shorter thoroughfare for global trade.
The Russian national legal scheme for navigation in NSR is widely recognized and followed by foreign countries, except for the United States, yet it has been the subject of vigorous debates among international lawyers. As the breakdown in Russian-Western relations intensifies, NSR legal controversies are increasingly making headlines. The new Russian law on the navigation of warships in the NSR, signed into law by Russian President Vladimir Putin on December 5, 2022, is exactly one such case.
The Russian NSR Legal Regime of Navigation and the New Law
While Russian law recognizes that the NSR includes waters with different legal statuses (internal waters , territorial sea, contiguous zone, and exclusive economic zone [EEZ]), it refers to the NSR as a single “historically emerged national transportation route of the Russian Federation,” subject to a single set of rules regulating shipping in the area. Under the NSR Rules of Navigation,1 which were updated in 2020, vessels must obtain permission from national authorities to enter the water area. The Rules also set out detailed requirements for access to various areas of the NSR, including icebreaking assistance, with allowances for vessels of different ice classes, seasonal conditions, and the specific area of navigation.
By drafting and adopting a new law on warships in the NSR, the Russian Government expressly confirmed one important fact that it had long avoided clarifying. According to the Explanatory Note2 which accompanied the bill, the NSR Rules of Navigation are only relevant for commercial shipping and do not apply to foreign warships and other non-commercial government vessels(hereafter “warships”). The Russian Government admitted that the NSR Rules of Navigation rely on Article 234 of the UN Law of the Sea Convention (UNCLOS), which grants coastal states certain mechanisms to regulate shipping in ice-covered marine areas within their EEZs for the purpose of environmental protection, whereas warships enjoy immunity from any environmental protection provisions of UNCLOS (UNCLOS Article 236). Russia’s concerns about increasing foreign military presence in the Arctic Ocean, reflected in the recently updated Maritime Doctrine,3 also prompted the Government to elaborate detailed measures to control navigation of foreign warships in NSR – at least for those areas where it could legitimately do so. Therefore, on December 5, 2022, Russia’s president signed a legal act to address this issue (hereafter “the Act”).
The Act, which technically represents amendments to the 1998 Federal Law “On the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation,” sets out requirements for foreign warships’ access to the internal waters of the NSR for purposes other than entering a seaport or naval base. It requires a flag state to apply for permission to enter NSR internal waters ninety days before the passage, with no more than one warship allowed to be in these waters, unless otherwise provided by a special decision of the Russian Government. A special clause requires submarines to surface and show their flag while passing through NSR internal waters. The Government reserves the right to suspend passage for warships for security reasons.
Misreading of the New Law
Since December, the new Act has acquired controversial or even false interpretations, both in terms of its content and broader significance for Arctic security. Some Russian media praised the measure as a showcase of Russia’s growing dominance in the Arctic and its ability to “wipe the nose” of its adversaries, while Western commentators pointed to it as more evidence of Russian arbitrariness and disregard for international law.
A common mistake would be to extend the Act’s spatial scope to the whole maritime area of the NSR. As previously mentioned, the new requirements apply exclusively to internal waters within the NSR, which constitute only a small portion of the NSR (see Figure 1). Under international law, states generally have the same sovereign jurisdiction over internal waters as they do over land territory. Thus, they can legitimately require prior permission for entry of immune ships.
Notably, the Russian Government had discussed a potential measure regarding foreign warships in NSR for several years, though behind closed doors. An earlier result of these discussions – a draft law from 2019 – would have required foreign warships to notify the government prior to their proposed passage, instead of seeking permission, but would have covered larger areas of the NSR – internal waters plus territorial sea. Russia may have rejected this earlier draft out of fear of sparking international outrage, since the introduction of a notification- (let alone permission-) based navigation regime in the territorial sea, where foreign ships enjoy the right of innocent passage, would amount to a clear violation of international law, as well as Russia’s previous legal practice. Whereas imposing restrictions on foreign warships in internal waters may have more legal ground.
However, the core controversy surrounding the Act – and the real bone of contention in the long-standing U.S.-Russia dispute – is the legal status and regime of the NSR straits. The Russian Government considers most of these straits to be internal waters and thus subject to the Act’s requirements, while the United States holds that the straits are used for international navigation and are subject to the regime of transit passage (see here at 526). Although Russia’s stance on the regime of the NSR straits does raise some questions, this is a matter of interpretation of, rather than (dis)regard for the law. In fact, Russia is not the only Arctic state to make such claims – the United States has a dispute with Canada, which similarly treats the Northwest Passage as its internal waters and has introduced the requirement for prior authorization of the transit of all non‑Canadian vessels.
It would be also incorrect to consider the Act as a game-changing innovation in Russia’s legal regulation of foreign warships’ navigation in NSR internal waters. Even before the adoption of the Act, Russian law required foreign warships to seek the Government’s permission to enter internal waters through the governmental decree from 1999,4 which is aimed at regulating navigation of foreign warships in Russia’s territorial sea, internal waters, naval bases, and seaports. It applies to all relevant maritime areas of Russia, including the internal waters of the NSR. What is new and important about the 2022 Act, however, is that it addresses the internal waters of the NSR specifically and introduces the “no more than one foreign warship” restriction, which did not exist previously. It also raises the regulation level from a governmental by-law to a federal law. Apparently, with the adoption of the Act, the 1999 decree will be eventually amended to reflect the new NSR-specific requirements.
But even before 1999, Russia/USSR consistently adhered to the practice of requiring foreign warships to seek permission to enter its internal waters and the contested NSR straits – as was the case with the U.S. Coast Guard icebreakers Northwind, Edisto, and East Wind, and U.S. Navy ship Burton Island, when they tried to conduct transits through the NSR in 1964-1967.
Implications for Arctic Security
Some commentators contend that the adoption of the Act gives the United States cause for conducting a Freedom of Navigation Operation (FONOP) in the NSR. Freedom of Navigation is a program of the United States to demonstrate its non-acquiescence to maritime claims by other states that it considers excessive. The program runs on a triple track, including diplomatic protests, operational assertions by the U.S. Navy (i.e. FONOPs), and consultations with other states. The United States has already expressed disagreement with the Russian NSR claims through diplomatic channels on several occasions, most recently on May 29, 2015. Although the United States has conducted FONOPs in close proximity to the Arctic, there has never been a FONOP in the NSR since the establishment of the FONOP program in the 1970s. Recently, several U.S. officials have hinted at the need to perform a FONOP there. The adoption of the Act puts an additional spotlight on the NSR and theoretically might induce the United States to launch an operation in the NSR straits by transiting them without applying for Russian permission.
Yet, due to the U.S. Navy’s lack of surface ice-strengthened warships,5 a potential FONOP in the NSR straits, especially in the eastern part, would entail significant risks. Even with rapid ice retreat, ships are exposed to many hazards in Arctic waters, including low temperatures, sea ice, ice buildup on the ship’s structures, remoteness, and darkness. Ice conditions in the NSR straits create further complications for the U.S. Navy. The East Siberian Sea, which is connected with the Laptev Sea through the Dmitry Laptev and Sannikov straits, has the harshest ice conditions, with the straits there blocked by ice even in the summer. An operational assertion in this area could lead to an emergency in which the United States is forced to call for Russia’s assistance – an unacceptable outcome for Washington.
There are great political risks, too. Given the significance of the Arctic and the NSR for Russia in terms of its security and economy, coupled with growing tensions in the region, the blowback from a potential FONOP could be frightening, with the potential to turn the Arctic into the new South China Sea.
No matter how controversial the new Act may appear in the eyes of the United States, would the game be worth the candle, given that the Act amounts to a detailed regulation of the existing permission-based regime for controlling warships’ access to the internal waters of the NSR?
On the bright side, the Russian Government’s explicit recognition that the NSR Rules of Navigation, which cover not only internal waters but the whole maritime area of the NSR, do not apply to warships should alleviate one of the United States’ key concerns regarding the NSR regime, raised in the 2015 diplomatic note. This could open up a new opportunity for the United States and Russia. While the disagreement over the legal status of the NSR straits will remain relevant and unresolved in the long term, the option of settling a part of the dispute and “agreeing to disagree” on other critical elements seems to be the best available for both sides in the current situation.
[1] Rules of Navigation on the Water Area of the Northern Sea Route, approved by the Decree N 1487 of the Government of the Russian Federation, Sep. 18, 2020.
[2] https://sozd.duma.gov.ru/bill/608695-5 (accessed 12 January 2023) (In Russian)
[3] Maritime Doctrine of the Russian Federation, N 512. July 31, 2022
[4] Decree of the Government of the Russian Federation No. 1102 dated October 2, 1999 “On the rules of navigation and presence of foreign warships and other state-owned ships operated for non-commercial purposes in the territorial sea, internal waters, on naval bases, and bases for stationing warships in seaports of the Russian Federation.” For access see https://www.szrf.ru/szrf/doc.php?nb=100&issid=1001999042000&docid=3746
[5] The U.S. Navy could theoretically involve U.S. Coast Guard icebreaker Healy in its operation. However, in practice, the USCG has not been engaged in an operational challenge against an excessive maritime claim in over forty years. See J. Kraska, R. Pedrozo, International Maritime Security Law, Martinus Nijhoff Publishers, 2013.
This post was republished from The Belfer Center.