Russia’s Domestic Legislation Regulating the Northern Sea Route
Research Analyst: Vivian Cheng
Team Leader: Hannah Barltrop
Navigating the Northern Sea Route (NSR) has largely been regulated by legislation developed by the Soviet Union and now the Russian government.1 Because the NSR lies along the coast of Russia, Russian authorities have had extensive abilities to regulate the route. Despite international frameworks to ensure sustainable navigation in the Arctic, Russia maintains significant levels of governance over this region.2
The proposal to open the NSR to international navigation occurred more than twenty-five years ago, when Mikhail Gorbachev mentioned it in his 1987 address in Murmansk.3 However, a comprehensive and unambiguous international treaty or legal regime has yet to be drafted. Instead, Russian legislation regulating the NSR has been characterized by piecemeal statutes that have created legal ambiguity.
Due to the unique geographical and climatic conditions of the NSR, Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS) explains that coastal states have broad jurisdiction to control marine pollution from vessels in ice-covered areas within their exclusive economic zones (a special sea zone prescribed by UNCLOS, stretching out two hundred nautical miles from the baseline, where states have special rights).4 Because of this, Russia has special responsibilities to manage infrastructure, develop emergency response procedures, ensure safety of ships, and protect environmental interests.5 However, this broad prescription raises several issues related to NSR’s legal status in relation to Russia’s state practice regarding jurisdiction and control.
In recent years, Russia has continuously introduced higher navigation standards and requirement for foreign vessels. The 1990 Rules of Navigation on the Lines of the Northern Sea Route has been replaced by the 2013 Rules of Navigation in the Water Area of the Northern Sea Route.6 Legislators have also introduced amendments to pre-existing NSR-related legislation via a Federal Act — notably, the 1998 Federal Law No. 155 FZ. The 1998 law was amended by the 2012 Federal Law No. 132-FZ.7 The 2012 Federal Law established specific regulatory acts to have effect on foreign commercial ships. These amendments demanded that vessels crossing through the NSR pay Russian tariffs and provide proof of liability and insurance.7 The Ministry of Transport has also proposed legislation to prohibit companies from exporting Russian Arctic hydrocarbon resources with foreign vessels. This proposal led President Vladimir Putin to adopt a law in 2018 that exclusively allowed Russian ships to transport oil and gas along the NSR.8 For countries that export oil and gas, like Canada, they would be unable to ship these goods through this region. These policies suggest Russia’s ambitions to gain unilateral control of the Arctic, which may escalate tensions with other countries, causing Russia to act more aggressively towards the West if the route is in use.
These practices raise questions about the fees levied on foreign vessels. Although fees may be justified by the costs required to maintain the NSR, Article 26(2) of UNCLOS allows charges “as payment only for specific services rendered to the ship” in a non-discriminate manner.9 This fee system could be justified if the environmental protection measures taken were proportionate to “the actual or threatened damage to the environment”, according to Article 221(1) of UNCLOS.10 However, the fee system could not be justified if implemented to demand contribution for infrastructural management. Article 26 of UNCLOS says that the costs associated with developing and monitoring the trade route must be borne by the coastal state. Russia could justifiably levy these fees due to its significant environmental challenges; 15 percent of its territory is exposed to high levels of ambient pollution.11 In addition to these legal concerns, the dynamic changes in Arctic Region base-points may impact the legal jurisdiction of coastal states. Base-points delineated by domestic laws, such as The Russian Law of 29 May 1911, have lost their locations due to changes in ice features and sea level. This creates uncertainty in the law and could result in more litigation about these issues.
Given the uncertainty around the feasibility of a transpolar trade route — a route that requires the establishment of the NSR as a “third” sea route — predictions about Russia’s fee monopolization may be difficult to make with accuracy. Further, the impact of Russia’s domestic policies are unclear. Some analysts say these policies could deter foreign investment because of the barriers and the preferential treatment of domestic companies.12 More conflicts may arise after 2035 when the route becomes economically viable.13 Although Russia has jurisdiction to maintain and develop the NSR, legal issues remain with regards to tariff justification and ice base-points. Perhaps working with or creating partnerships with Russian companies could allow for Russia to view certain states more favourably and mitigate the tension that comes to the monopolization of the sea route.
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1Jan J. Solski, New Developments in Russian Regulation of Navigation on the Northern Sea Route. Law and Politics 4, no. 1 (2013), 90–119
2 Taisaku Ikeshima, Preliminary Issues on the Northern Sea Route under the Law of the Sea. Transcommunication 3, no. 2 (2016), 307–316
3Gorbachev, Mikhail. Murmansk Speech. Speech, Murmansk, October 1, 1987.
4 Convention on the Law of the Sea, United Nations General Assembly. New York, December 10, 1982, United Nations Treaty Series. Accessed at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
5Transportnoy strategii Rossiyskoy Federatsii na period do 2030 goda [Transport Strategy of the Russian Federation for the period up to 2030] (Moscow, Ministry of Transport of the Russian Federation, Government of the Russian Federation, 2008)
6Tim Stephens, David L. VanderZwagag, Polar Oceans Governance in an Era of Environmental Change, 241 (Cheltenham: Edward Elgar, 2014)
7Lassi Heininen, Alexander Sergunin, Gleb Yarovoy, Russian Strategies in the Arctic: Avoiding a New Cold War, 68-70 (Moscow: Valdai Discussion Club, 2014)
8 Heather A. Conley, Caroline Rohloff, The New Ice Curtain: Russia’s Strategic Reach to the Arctic. Center for Strategic and International Studies, 84 (Lanham, MD: Rowman & Littlefield, 2015)
9 Convention on the Law of the Sea, United Nations General Assembly. New York, December 10, 1982, 33. United Nations Treaty Series. Accessed at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
10 Convention on the Law of the Sea, United Nations General Assembly. New York, December 10, 1982, 112. United Nations Treaty Series. Accessed at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
11Environmental Policy and Regulation in Russia, Organization of Economic Cooperation and Development. Paris, 2006. Accessed at https://www.oecd.org/env/outreach/38118149.pdf
12 Lev Fedoseev, “Putin introduces exclusive right for Russian vessels to carry oil and gas over NSR.” Tass, December 31, 2017.
13 Carsten Hansen et al., Arctic Shipping – Commercial Opportunities and Challenges, Copenhagen Business School Maritime Division (Frederiksberg: CBS Maritime, 2016)
