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The Northern Sea Route and Jurisdictional Controversy

(by Willy Østreng, Ocean Futures 2010)

For decades the legal status of the NSR has been a fairly low key, but nevertheless contentious political issue in US-Soviet/Russian Arctic relations. Russia claims the ice covered straits of her Arctic archipelagos as internal waters under several theories, including that of historic bays and closed by straight baselines. In Russian legislation, internal waters also include the waters of the White Sea, Cheshkaya and Baridaratskaya bays, as well as the waters separating the mainland from the archipelagos. In general, all bays and gulfs where the entrance does not exceed 24 nm are regarded as part of the internal waters of the Federation.

USA is the only country that through declarations and navigation explicitly has challenged the Russian regime. The US declarations include protests to the establishment of Arctic baselines and claims that Russian Arctic straits are international and subject to transit passage. The US accepts more extensive coastal waters rights with respects to prescriptive and enforcement competence, but holds the question open with regard to ice covered straits. Her claims forward the same position as for the Canadian Arctic. Both states invoke national security as an important interest substantiating and warranting their respective stands.

Possible Jurisdictional Controversies

In regard to the Northern Sea Route there are some uncertainties related to the definition of Russia Arctic waters, related more specifically to the implication of the Sector principle laid down in a Russian Decree of 1926. In this section we will discuss the Sector principle and its possible impact on the legal status of sea ice and the freedom of the High Seas of the Arctic Ocean.

The Sector Theory

This theory warrants claims to sovereignty over sectors of the earth’s surface, as measured by meridians of longitude. Applied to the Arctic, the theory is simple and compounded of two ingredients: first, a base line along the Arctic Circle through territory sorting under the uncontested jurisdiction of a regional state, and second, two sides defined by meridians of longitude extending from the North Pole south to the most easterly and westerly points on the Arctic circle pierced by the state. Under certain interpretations of  this theory, nations possessing territory extending into the Arctic Ocean have a rightful claim to all land territory (islands), and even sea ice and ocean areas in general lying to their north1 . The principle is ambiguous in that two different interpretations exist about its legitimacy, function and applicability in international law:

I.       Some regard it as a special version of the contiguity principle, i.e. the right to claim sovereignty over areas based on the propinquity of the claimant state to the territories being claimed. In this interpretation it will provide individual Arctic rim states complete control over all activities occurring in “pie-shaped slices of the region2 .

II.     A practical form of delimiting geographical areas whose sovereignty is secured by other means of sovereignty claims, such as effective occupation etc3 . In this interpretation, the “sector idea may be unobjectionable, if other elements in the situation are satisfactory4 ” As pointed out by Castel,” whatever its role, the sector principle must be viewed in the perspective of the total ..claim – a claim with broad foundations,…., which is consistent with the principle of international law1

In the Arctic it was first publicly propounded by Senator Pascal Poirier in 1907 in the Canadian Senate. His draft resolution was not accepted by the Senate and it never reached the floor of the House of Commons. At the time it was officially regarded as a one-man’s controversial idea. However, it rapidly caught the attention and interest of the scholarly communities in many countries, and, some year later, it formed the political/legal basis of the Canadian (1925) and the Soviet (1926) claims to sovereignty over land areas in the Arctic Ocean. Ever since, the sector theory has stirred much heated discussion among legal experts, and have gained a permanent position in the on-going politics of the Arctic.

On April 15, 1926, the Soviet Presidium of the Central Executive Committee adopted a decree based on the sector theory declaring all lands and island situated in the Arctic Ocean, between the coastline of the USSR and the North Pole and between sector lines drawn from the easternmost and westernmost points of the coast up to the North pole, the territory of the Union (see Figure 6.2). Islands already under the sovereignty of other countries, such as the archipelago of Svalbard, were explicitly exempt from the claim. According to the Soviet lawyer, V.L.Lakthine, this Decree was prompted by the need of the Soviet Union to protect its northern coasts from enemy attacks and foreign infiltration as well as to safeguard economic national interests within the sector. Among other things, the sector was to prevent other states from establishing airbases within the Soviet “gravitation area” of the Arctic Ocean, and to preserve the Northern Sea Route. It was a self-protective move to prevent "future imperialist interventions in the Soviet gravitation sector5 .”

Figure 6.2: The Soviet Sector Claim

Image  .

However, during the Stalin era leading Soviet experts on international ocean law maintained in writings that grounds exist for extending the sector claim to include: a.) the waters between the island; b.) the waters between the island and the mainland; c.) the pack-ice and ice-islands; d.) the remainder of the area within the sector, e.) the airspace over the entire sector, and f.) the seabed within the secto6 r.  According to Lakthine, the spirit of the Decree was to prevent and control foreign intrusions into the Soviet sector. In order to make this come through, the concept of “ land and islands” should be extended to comprise also sea ice and adjacent waters and the air space above the sector. If not, the sector would be regarded as high seas “with all its associated consequences5 .” And what is more: in Lakthine’s mind the Decree was in accordance with international ocean law5 .

The Soviet state controlled press followed suit, first in 1928 and again in 1950, advancing the sector claim to apply to the open ice-infested waters, including drifting sea ice. These authors based their views to a large extent on the Marxist-Leninist theory of the class struggle and what they regarded as the expansionist character of imperialism. Accordingly, Soviet maps were subsequently published depicting the sector lines as boundaries for “Soviet Arctic areas”, comprising 43% of the Arctic Ocean including a substantial part of the Central Arctic Basin (see chapter 1). This move found support in the analysis of E.B. Pashukanis  - a highly respected Soviet legal expert - who in 1935 declared the 1926 Soviet Decree to be lawful “with the aim to form the northern borders of the USSR legally and precisely7 .” The legal advisor to the People’s Commissariat for Foreign Affairs, A. Sabanin took issue with this stand and argued that the demarcation lines do not mean borders for the polar sector and adoption of the sector theory8 . In so doing, he reiterated the official Soviet position.

In the 1960s, 1970s and early 1980s, Soviet lawyers promoted the view that all Arctic states were entitled to their own sector in the Arctic Ocean, but they disagreed on what features of the sectors that could be claimed the territory of the coastal state. One group9  argued that national sovereignty could only be claimed over islands, whereas others argued that such claims could be extended to both land and water (sea ice included)10 . This added to the uncertainty about what the real position of the Soviet Union was.

In the period 1962-68, the U.S. government, who challenge the legality of the Sector principle, put the Soviet position to test, dispatching U.S.Coast Guard vessels to conduct hydrographic research in what international ocean law regarded as high seas in the Chukchi, East Siberian, Laptev, Kara and Barents Seas. These missions were openly to assert the high sea status of these waters. Soviet authorities on their part made it plain that the Laptev and Sannikov straits could not be trans-navigated by U.S. vessels because these straits were historically part of Soviet internal waters, where Soviet sovereignty applied without any curtailment. The Coast Guard vessels did not transit those straits, but this fact notwithstanding, Soviet authorities considered the U.S. presence in the High Seas of these waters so provocative that they in 1966 publicly declared them to be of an “unfriendly nature11 .” This diplomatic reaction implies that even waters defined as international by international ocean law was not quite so in the official mind of Soviet authorities. The reaction was according to recent Russian sources due to the fact that the “Americans were making use of warships of  reconnaissance and military applied research on the seaways of the NSR.” The USSR policy was to deter “…the NATO naval forces from the Soviet Arctic12 Arctic”

The same year the Military Publishing house of the Ministry of Defence of the USSR published A Manual of International Maritime Law stating that “The sovereign rights of the USSR in the Arctic sector stem from the enormously effective economic, organizational and scientific research activities of the USSR in mastering the Northern Sea Route, from the historical fact of discovery, from research on the polar seas and islands by Russian navigators, and also from the special geographic and climatic conditions of this region13 .” No specification was made of what the sovereign rights was and where they applied, but the argument covered both discovery, activities, land, sea ice, geography and climatic conditions.

Twenty year later - in 1985 - the Soviet Navy published an international law of the sea manual stating that the lateral lines of the Arctic sector converging at the North Pole should not constitute state boundaries. This seemingly categorical statement was however immediately qualified in the next sentence saying that: “the special character and importance of the Arctic seas for the coastal States give ground to consider the polar sectors as zones of their economic and defence interests, and to use the appropriate meridians for the delimitation” This was a reiteration of what Lakhtine wrote in 1928 that strategic defence and economic considerations played a prime role in the adoption of the 1926 Decree7 . This on-going discussion within the Soviet Union seemingly took the form of an open and free debate without any governmental intervention, not even during the rule of Stalin. Available evidence suggests that the “dissidents” – those challenging the official position - were not prosecuted or punished for their writings. For this reason, it is not unreasonable to assume that the debate was accepted and even encouraged by the regime to keep the option open of extending the Sector Decree if need should arise. 

In the post-Cold War period, the sector principle has neither been officially rejected nor reaffirmed nor reconsidered. There are still analysts within Russia arguing that the Arctic sector should be defined as an integral part of Russia with a vertex at the North Pole. Their policy recommendation is to display firmness when confronted with attempts to change the status quo. On the other hand, prominent voices within the State Duma contend that real arguments in support of the Soviet sector concept simply do not exist anymore stating that the concept of the Arctic sector as part of the state territory has collapsed due to the adoption of the UN Law of the Sea Convention of 1982.14  As observed by Leonid Timtchenko there is a “..lack of clarity in Soviet policy; even today, after the collapse of the USSR, the official position of its successor – the Russian Federation – relating to the sector concept is still not clear7 .” Erik Franckx concludes, “Although there still existed a great margin of flexibility as to (the sector theory’s) exact field of application in doctrinal writings, it can be concluded that this theory has been transformed into a “fall-back” notion, in order to sustain more limited claims if need may arise11 .” The uncertainty and confusion involved is what other scholars have labelled creative ambiguity feeling it to be deliberate and planned15 planned. In light of this ambiguity, it is interesting to note that Russian analysts like B.M. Klimenko, argues that although the norms and laws of UNCLOS III undoubtedly applies to the Arctic, it is only the islands within the sector that belong to the coastal state, but these waters.  “..may be modified according to the special conditions of the region7 .” This is to reformulate and put Lakthine’s old thesis in modern wording: if one takes into account the characteristics of the northern polar ocean and the juridical position of the circumpolar countries, one has to conclude that it is difficult to apply the high sea regime to these waters, and that it is necessary to apply some sort of restricted sovereignty of the polar states within their respective gravitation sectors5 .

V.N.Kulebyakin, argues that sector states have sovereign rights over both land and sea territories in the Arctic with a reference to Article 234 of UNCLOS III, which gives coastal states the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction, and control of marine pollution from vessels in ice-covered areas within the limits of their exclusive economic zones (EEZs). Although, Article 234 confers extensive authority to the coastal state in ice-covered areas16 , most international lawyers would probably agree with Leonid Timtchenko “that it is doubtful that this article and the (UNCLOS III) as a whole contain legal grounds for the sectoral concept7 .”

The relationship between the sector principle and UNCLOS III was put to a practical test in the negotiations on the delimitation of the Barents Sea between Norway and the Soviet Union/Russian Federation that started in 1974 and ended in 2010. In these negotiations the Soviets claimed the sector line to be the ocean boundary between the two countries, whereas the Norway argued the median line to be a more reasonable line of division. Thus, the disputed area amounted to 176 000 square kilometre17 kilometre.  At the start of the negotiations the Soviet Union took the stand that there was “no disputed area east of the sector line18 ”, implying that this was Soviet “ocean territory.” The Sector Decree had “..gained such an administrative prescriptive title in Soviet practice that it carried a special psychological and political significance19 significance.” The formal negotiations went on for 36 years, and in late April 2010 the parties agreed to divide the disputed area in two equal parts, i.e. the Russian part accepted a deviation to the sector line. This outcome signal a more relaxed and detached attitude to the sector line on the Russian side.

The legal and political challenges relate partly to the inherent imprecision of the terms ‘Arctic sovereignty’ and ‘polar areas’. The question of sovereignty in the Arctic Ocean being a very special one, and to some extent incapable of exact definition, owing primarily to the undefined status of sea ice in international ocean law.  Only in the polar areas does sea ice exist in sufficient quantities and still with sufficient stability (irrespective of the effects of global warming) to support permanent structures. The Eskimos use the sea ice as a substratum for hunting, trapping and transport, whereas States use it as platforms for scientific research and landing of aircrafts. This permits sea ice to be employed as land and contrasted with water posing the question: Should sea ice be regarded as ‘Arctic ocean water’ (which in fact is what it is), or as ‘Arctic ocean territory’ (which is what it is from any functional practical point of view). At the outset, sea ice may be regarded both as land, and water. In the early 1970s, this puzzling question made - surprisingly enough - the Canadian Prime Minster Trudeau to announce that an attempt would be taken to persuade the other circumpolar countries to accept that the pack ice of the Northwest Passage be treated as land11 . This attempt was immediately silenced in Ottawa and never came through.

The challenge of the Arctic Ocean, in terms of international law, has been aptly described: “…the Arctic Ocean has the characteristics of both land and sea, and yet it is totally unlike both.” According to US writers, it is the “unusual nature of the Arctic Ocean that makes it difficult to resolve questions of exactly where “Arctic Waters” end and “Arctic territories” begin, and whether the concept of an “open sea” is applicable in the Arctic Basin20 .” On the basis of the blurry complexity of this problem, two schools or theories of law have developed: the ice-is-water theory and the ice-is-land theory.

The Ice-School Theories

The ice-is-water theory recognizes that the sea ice may be occupied and used for multiple human purposes, but contends that such occupation is temporary. The constantly changing appearance and position of sea ice in the Arctic Ocean implies that it lacks the stability required by international law to be the object of permanent sovereign possession. It is illogical to claim national sovereignty over an object that may melt and disappear from the face of the Earth. Ice is water and will never be anything but water. Water expanses are already regulated by international law21 law.

The proponents of the ice-is-land theory argues that ice is not merely a form of water, but a solid substance, claiming that laws “.. evolved for a liquid (and the .. arguments in favour of freedom of the seas all rest on the liquid quality of the sea) do not necessarily apply to a solid. Ice can be settled upon; ice is a barrier to navigation; ice possesses definite limits. There is little about ice to invite a comparison with water1 .” Even poets have observed that: “In this arid cold, ice seems to have lost all relation to water, to have forgotten it was ever wet. It bears no resemblance to the sea than coal to a tropical swamp. It is a whole landscape of some new gemstone, too abundant to be precious but far too magnificent to be common22 common.”

Some 40 years ago, Gordon W. Smith stated that the problem of sea ice “cannot be dismissed simply by assuming that the absence of a particular law is in itself a proof that another law exist. Clearly, here there is a gap in international law, of concern to all states with interests in the polar regions. The answers to them are as conspicuous by their absence now as then4 .” According to Russian analysts, the uncertainty in this respect may be invoked in different ways under different circumstances. Should the nationalistic sentiments in Russian policy gain in popular support, the likelihood is for a more ambitious advancement of the sector principle in which the sector may be depicted “as part of the territory of Russia.” If, however, democratic values and institutions get strengthened, the likelihood is for Russia to secure her economic interests by elaborating a new approach towards an international regime and play down the impacts of the sector claim14 .

There is no international law of seaice23 . This implies that the ambiguities of the interpretation of the sector principle also introduce uncertainties to the regime of the NSR – the most likely highway for arctic transportation of mineral resources in the short and medium term.  Some 40 years ago the idea was articulated that a sector claim to achieve sovereignty over floating ice “must evidently claim what might be termed ice space rather than the ice itself, in the same manner as a state claims the airspace above its soil rather than the air4 .”

As discussed in chapter 1, the NSR is a series of different sailings lanes, and ice conditions at any one place and time will decide the sailing course to be set. At times, due to the accumulations of pack ice in the straits, surface vessels operating in convoys will be forced to proceed north of the large island masses to find suitable routes through the ice - the corridor feature of Arctic navigation. In such cases, the navigation lanes used are legally claimed to be national and under full Russian control and jurisdiction. However, uncertainties exist about the northernmost limits of the NSR.

In the Regulations for Navigation on the Sea ways of the Northern Sea Route, published by the Head Department of Navigation and Oceanography, USSR Ministry of Defence, 1990 (Decree 1990) article 1,2. the NSR  is defined to be “..situated within its inland seas, territorial sea (territorial waters), or exclusive economic zone adjacent to the USSR Northern Coast and include sea ways suitable for leading ships in ice, ..”24 Apparently, the NSR is here defined officially as a coastal route within the internal and territorial waters of the Russian Federation and/or as a high latitudinal route located within the Russian 200 nautical miles EEZ. The implication of this being that the waters within the Russian sector in between the territorial sea and the North Pole are international waters in accordance with international ocean law. However, this restricted interpretation has been partly challenged by international ocean lawyers, claiming that the NSR itself in some cases may extend beyond the EEZ. This reasoning is based on the fact that all the articles of the 1991 Decree, except for Article 13, contain the term ‘marine areas adjacent’, and Article 1 of the Decree does not clarify whether the provisions are also applicable beyond the EEZ. On the ground that the “mandatory nature of the measures ,.., to be taken by the authorities…. may seemingly be argued to encompass the high seas, if these are understood as an ‘adjacent area’ under the legislation and claims indicated25 ,” the terms ‘ice-covered areas’ and ‘adjacent areas’ remain unclear in Russian legislation, opening up for extended geographical interpretations of where the sea lanes of the NSR runs.

Prominent Soviet/Russian lawyers, such as professor A-L.Kolodkin, President of the Soviet Association of Maritime Law and Dr. M.E. Volosov, Chief Secretary of the Executive Committee of the same Association follow suit. In an article in Marine Policy, March 1990, they argued that the distinctive climatic and hydrographical factors of the region should be taken into account when discussing the legal status of the NSR, and that “the States of the region must possess certain privileges and prerogatives, above all with respect to regulating the access of users, including foreign users, and also with comprehensive control over all types of activity carried out in the region26 . This also affects the definition of the northern limits of the NSR “..under any circumstances a significant part of the Northern Sea Route lies within the Soviet economic zone, or the territorial and even internal waters of the USSR26 .” Indirectly, the authors here indicate that a small part of the NSR may lay outside of the EEZ in international waters. This is so because the: “integrated  nature of the Northern Sea Route as a transport route is not affected by the fact that individual portions of it, at one time and another, may pass outside of the aforesaid boundaries where the USSR exercises its sovereign rights or sovereignty in full (i.e. it may pass into the high seas)26 .” Thus, as long as part of a voyage includes waters under undisputed Russian jurisdiction, Kolodkin and Kolosov define the NSR to include sea lanes running beyond its own economic zones in high latitudes. Thus, in principle all conceivable sea lanes south of the North Pole, and even across the Pole itself, might be part of the NSR as long as the voyage in question passes through North Russian coastal waters.

This interpretation seems to be confirmed in a recent Russian-Norwegian study on remote sensing of sea ice along the NSR. In this study Russian researchers without any further ado state thattiki_plugisupn/a voyages al/aong the NSR are carried out along four different routes - a coastal route, mid-route, transit route and a near-the pole-route (see chapter 1). According to the authors, the latter route, “passes the large circle across the North Pole,” because the most important factor in planning shipping routes in ice “appears to be the optimal use of the zones with the easiest ice conditions, regardless of whether they are encountered on coastal or high-latitudinal routes27 .” Two factors attract interest in this respect: First, the NSR is depicted as starting in Murmansk whereas the official definition of the western point of the NSR is Novaya Zemlja. Second, the near-the pole-route as depicted in chapter 1 does not necessarily involve North Russian coastal waters in terms of internal waters, territorial waters and the EEZ. This deviates from the reasoning of Kolodkin and Kolosov, and since Ivan Ye Frolov as Director of the State owned Arctic and Antarctic Institute (AARI) in St. Petersburg is a central player in the Russian Arctic, these deviations add to the ambiguity of the Russian position and blur the picture of what the state of affairs are.

The rights of innocent passage through the NSR is being curtailed by “an aggregate of legal and material circumstances” which according to Kolodkin and Kolosov make the NSR  a national transport route in which the regulation of navigation is  “the prerogative of the USSR as a coastal State.” In support of this claim, the Norwegian Indreleja case ruled by the International Court of Justice (ICJ) in the Anglo-Norwegian fisheries case in December 1951 is invoked. The Court ruled that the entire sea route from Varangerfjorden to the Porsangerfjord, exploited and equipped exclusively by Norway is under the complete control and administration of Norway irrespective of whether parts of it are within internal and territorial waters26 . The political implication of this is that under certain specific circumstances the NSR-regime in principle comprises more than 75% of the ocean space within the Russian sector, providing jurisdictional power to the coastal State over a fairly big part of the Central Arctic Ocean between the Russian EEZ and the North Pole.

The legal reasoning of Kolodkin and Kolosov implies that a transpolar shipping route can run in international waters between the Russian territorial sea and the North Pole and still sort under the jurisdiction of the Russian Federation. It is interesting to note, however, that Kolodkin and Kolosov, restrict the jurisdiction they claim for the Russian Federation in international waters to sailings along the NSR/NEP. In the sea belt between the seaward boundary of the territorial sea and the seaward boundary of the EEZ, and on the high seas beyond the economic zone, they claim the freedom of navigation is exercised without limitations and in accordance with UNCLOS III26 . Here Koldkin and Kolosov seemingly are in disagreement with the viewpoints expressed by Russian scientists. This adds to the confusion, as does the planting of the Russian flag under the North Pole in 2007.

In August 2007, a privately funded submarine expedition planted the Russian flag on the North Pole at the depth of more than 4000 meters. On board was Dr. Arthur Chilingarov, a noted polar researcher and a Hero of the Soviet Union. Dr. Chilingarov previously was Deputy Chairman of the Russian Duma and a close associate of President Vladimir Putin, who prior to the dive appointed Chilingarov as Head of the Russian scientific program for the International Polar Year of 2007-2008. Immediately after the successful dive, Chilingarov claimed that the purpose of the expedition was to prove that the Arctic Ocean was Russian territory, and that the resources therein belonged to Russia28 . This statement in combination with Chilingarov’s prominence in Russian politics and Arctic science, gave him broad coverage in world media. The questions posed were many: Did the dive serve political purposes? Was it a trial balloon on the part of Russia to claim more of the seabed within the Russian sector than warranted in UNCLOS III? A few ma class=onths after the dive, Chilingarov was appointed Hero of the Russian Federation. This gave an extra injection to the speculations.

The Russian Foreign Minister Sergej Lavrov was quick to defuse the political significance of the event, claiming that the dive was nothing but a brave action of a private citizen. Politics were not involved in the dive.

The Canadian Foreign Minister was not easily convinced and quickly declared the rights of Canada in the same area as the dive took place, whereas the Norwegian Foreign Minister saw it as  “a political action, a PR-gimmick…” not worthy of any public reaction. In his mind “Flags no longer create rights. To plant a flag on the seabed of the North Pole make the North Pole no more Russian than the planting of the Norwegian flag at the South Pole in 1911 made the (South) Pole Norwegian29 .”  All these  reactions are reflections of the uncertainties stemming from the Soviet/ Russian internal dialogues over the last 90 years when it comes to the application and content of  the sector principle.

On 27 March 2009 the Security Council of the Russian Federation released a new Arctic policy document on the Fundamentals of the Russian Federation’s Policy in the Arctic for the Period up to 2020 and beyond. In this document the concept of the Arctic Zone of the Russian Federation was re-launched with partly a fresh content. In terms of ocean space, this zone comprises the internal waters, land and islands, territorial sea, the exclusive economic zone and the continental shelf of Russia, within which “Russia possess sovereign rights and jurisdiction in accordance with international law.