Freedom of Navigation in Arctic Routes: Regulations and Disputes

China International Studies (English) - - Contents - Zheng Lei

Through shipping regulations, coastal states such as Russia and Canada have established exclusive jurisdiction over the Arctic passages. With the opening of the Arctic sea lanes due to global warming, the focus is now on balancing jurisdictional rights of coastal states and freedom of navigation of non-regional countries.

In recent years, navigation in ice-covered areas has become increasingly feasible, since the Arctic sea ice is rapidly thawing due to global warming.1 Once the Arctic shipping routes are ready for large-scale navigation, there will be complex and far-reaching impacts politically, economically, and militarily.2 Arctic shipping routes consist of the Northeast Passage (named Northern Sea Route by Russia), the Northwest Passage, and the Transpolar Sea Route. The Northeast Passage, whose navigable conditions are relatively mature, is mainly located in waters under Russian jurisdiction, while the Northwest Passage, which is more difficult to traverse, is mainly located in Canadian-controlled waters. The Transpolar Sea Route is not mature for navigation yet.3 Russia and Canada claims that the related waters of the Arctic passages are “historical waters” and have adopted exclusive jurisdictional measures over the waters. Such claims and measures have had a negative impact on the freedom of navigation of other countries and are constantly challenged. The Russian and Canadian jurisdictions over Arctic shipping routes and their reaction to the challenges posed by other countries merit further attention and study.

Claims of Internal Waters in Arctic Passages by Coastal States

As coastal states for the Northeast and Northwest Passages respectively, Russia and Canada have claimed the related waters as de facto internal waters. By key differences in their legal basis, the claims can be divided into three types.

The sectoral concept

Russia once claimed sovereignty over the waters and islands related to the Northeast Passage according to the sector principle, where the sectoral area, with the pole as the apex, two meridians as sides and a certain latitude line as the base, belongs to the country close to the pole. On April 15, 1926, the Central Executive Committee of the Soviet Union issued a decree that stated “All lands and islands, both discovered and which may be discovered in the future, located in the northern Arctic Ocean, north of the shores of the Union of Soviet Socialist Republics up to the North Pole between the meridian 32˚04’35”E. longitude from Greenwich, running along the eastern side of Vaida Bay, and the meridian 168˚49’30”W. longitude from Greenwich, are proclaimed to be the territory of the USSR.”4 However, the sectoral concept defined in the decree is just limited to lands and islands, excluding sea areas. After the disintegration of the Soviet Union, the Russian government has rarely mentioned the sectoral concept.

Canada systematically raised the sectoral concept in 1907. The Canadian Senator Pascal Poirier suggested, “In future partition of northern lands, a country whose possession today goes up to the Arctic regions will have a right, or should have a right, or has a right, to all the lands that are to be found in the waters between a line extending from its eastern extremity north, and another line extending from the western extremity north. All the lands between the two lines up to the North Pole should belong and do belong to

the country whose territory abuts up there.”5 In 1909, the Canadian explorer J. E. Bernier unveiled a plaque on Melville Island to claim the sovereignty of Canada, which says, “This Memorial is erected today to commemorate the taking possession for the Dominion of Canada of the whole Arctic Archipelago lying to the north of America from longitude 60°W. to 141°W. up to the latitude 90°N.”6 Judging from the time, Russia’s sectoral concept must have used that of Canada for reference. In 1946, Lester B. Pearson, then Canada’s ambassador to the United States, made the claim over water explicit by declaring that the sector theory justified Canada’s claims “not only to the land within the sector, but to the frozen sea as well.”7 However, the Canadian government has rarely mentioned the sector theory since then. In 2006, Stephen Harper, then Canadian Prime Minister, even gave up the sectoral concept in a speech in Iqaluit. “I am here today to make it absolutely clear there is no question about Canada’s Arctic border. It extends from the northern tip of Labrador all the way up the East coast of Ellesmere Island to Alert. Then it traces the western perimeter of the Queen Elizabeth Islands down to the Beaufort Sea. From there, it hugs the coasts of the Northwest Territories and Yukon to the Canada-us border at Alaska. All along the border, our jurisdiction extends outward 200 miles into the surrounding sea, just as it does along our Atlantic and Pacific coastlines. No more. And no less,” said Harper.8 As defined by Harper’s statement, the limits of Canada’s jurisdiction along the northwest flank of the Arctic Archipelago fall hundreds of miles short of the 141st meridian, which is less than the traditional claim under the sectoral concept.

Claim of historical waters

Russia’s claim to Arctic historical waters can be traced back to the era

of the Soviet Union. On July 21, 1964, the Soviet Union presented an aide memoire to the United States in which it claimed that the Dmitry Laptev Strait and the Sannikov Strait, which unite the Laptev Sea and the East Siberian Sea, are historical waters of the Soviet Union.9 The Soviet Union also declared its claims to historical waters by legislation. For example the 1983 version of Law on the State Boundary of the USSR provided, “The waters of bays, inlets, covers, and estuaries, seas and straits, historically belonging to the Soviet Union,” are “historical waters” of the Soviet Union and constitute its internal waters.10 However, the law does not specify which waters and straits are historical waters of the Soviet Union. Russia inherited the Soviet Union’s claim. The 1998 Federal Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation provided that “The internal maritime waters include the waters of the bays, inlets, firths, estuaries, seas and straits whose mouths are broader than 24 nautical miles, and which have historically belonged to the Russian Federation, a list of which is drawn up by the Government of the Russian Federation and published in Notices to Mariners.”11 However, Russia has not released a detailed list of historical waters, though it directly adopts the method of straight baselines to declare the waters within the line as internal waters.12

Canada considers that it has a long-standing historical right over the relevant waters of the Arctic Northwest Passage and that these waters constitute Canada’s internal waters. The main basis for Canada’s claims are: 1) According to the records, the British explorer Martin Frobisher explored the Arctic waters of Canada in 1576 and Canada inherited the rights over the Arctic Archipelago from the United Kingdom in 1880. Thus, all the activities of British explorers before this could constitute one

basis of Canada’s sovereignty claims. After taking the rights over the Arctic Archipelago from the United Kingdom in 1880, the Canadian government started to conduct patrols and other activities to assert jurisdiction.13 2) Canada’s Inuit have conducted fishing and hunting activities in the waters of the Arctic Northwest Passage for centuries. As the Inuit are indigenous people of Canada, their activities should be regarded as those of the Canadian government. The Canadian government has the rights to inherit the sovereignty from its Inuit and protects the interests of the Inuit on their behalf.14 3) In 1906, the Canadian government advocated the sea area of 450,000 square kilometers around the Hudson Bay as an “historical bay,” which no country questioned in a century’s time, except one protest from the United States.15 This provides some support for Canada to continue its claim of “historical waters.”

Straight Baselines Claim

The United Nations Convention on the Law of the Sea (hereinafter referred to as “the Convention”) stipulates that the straight baselines system applies to the following: “in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.” However, the straight baselines system has some exceptions and certain conditions when it is applied. Under normal circumstances, straight baselines shall not be drawn to and from low-tide elevations. Furthermore, the drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. Meanwhile, the system of straight baselines may

not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone. But, under particular circumstances, the method of straight baselines is applicable, in light of the economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage, and straight baselines may be drawn to and from specific low-tide elevations.16

The straight baselines is the third basis on which Russia claims the waters of the Northeast Passage as its “internal waters.” In 1985, the Soviet Union passed the No.4450 Decree, claiming straight baseline systems for its coasts fronting the Arctic Ocean, Baltic Sea and Black Sea.17 After the disintegration of the Soviet Union, the Russian government inherited the position and passed the Federal Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation, which stipulates that “the straight baselines system could be applied to the bays and straits which historically belonged to the Russian Federation, even the straight baselines longer than 24 nautical miles joining the natural entrance points of a bay or a strait between islands or between an island and the mainland.”18

Initially, Canada did not take straight baselines as its primary legislative authority. However, in 1985, there was a forced transit by the American icebreaker Polar Sea through the Northwest Passage without the permission of the Canadian Government.19 The Government of Canada realized the deficiency of asserting the sectoral concept and historical claims, and therefore

it adopted the system of straight baselines instead to strengthen the legitimacy of its assertion. On September 10, 1985, the Canadian Government announced the straight baselines around the Arctic Archipelago and treated the waters within the straight baselines as internal waters of Canada. Now, Canada’s assertion of the jurisdiction over the Arctic Northwest Passage is based primarily on straight baselines, supplemented by historical claims and the sectoral concept.

Analysis of Maritime Claims by Coastal States

In order to realize their claims over the related waters of the Arctic Sea Route, Russia and Canada proposed the sectoral concept, made historical claims, and relied on straight baselines as their legislative bases, but they have not been broadly recognized by the international community because of their varying degrees of defects and disputes in terms of international law.

Disputes of the sectoral concept in international law

The sectoral concept has never been universally recognized by the international community since it was raised, nor has it evolved as customary international law.20 First, the right to unlimited stretching territories would be obtained by occupation of relevant islands and land of the Arctic by the sectoral concept, which is obviously an extended interpretation of the principle of first occupation in international law and does not conform to the requirements of effective control.21 Second, the sectoral concept has not been developed as international law. According to the position of the United States, proclamations, repeated visits, temporary outposts, and a semblance of control do not constitute effective occupation and acquisition of territory. Only sustainable administration, habitation, and development of the claimed territory could constitute as means of acquisition of territorial

sovereignty in the Arctic region.22 Third, the sectoral concept cannot apply to maritime demarcation. Although different considerations in cases of maritime demarcation could affect the direction of the maritime boundary, the sectoral concept has not been taken as one of the factors which would be necessarily considered in the existing precedents of maritime delimitation and the Convention.

Disputes of historical waters in international law

The assertion of historical claims by Russia and Canada face challenges from other states. The UNCLOS does not make a clear definition as to what constitutes “historical waters.” In the Anglo-norwegian Fisheries Case of 1951, the International Court of Justice (ICJ) recognized the “historic titles” of Norway and raised the concept of “historical waters.” The ICJ identified “historical waters” as “usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title.”23 On March 9, 1962, the Secretariat of the United Nations submitted to the Committee of International Law a research report Juridical Regime of Historic Waters, Including Historic Bays, which summarizes the key factors of historical waters, mainly including: (1) the exercise of authority over the area by the State claiming the historic right; (2) the continuity of this exercise of authority; (3) the acquiescence of other States.24 If the historical claims by Russia and Canada are examined through the lens, the same problem facing both countries is the protest of other states. It will be difficult for Russia and Canada to get extensive recognition of their claims from the international community in the future. When the Arctic shipping route becomes an international waterway, the claim of “historical waters” will

become a grave obstacle to the freedom of navigation of other states, who will accordingly oppose Russia and Canada’s claims.

Disputes of straight baselines in international law

It is also controversial in international law that Russia and Canada demonstrate their claims through the straight baseline system. As per the Anglo-norwegian Fisheries Case and other relevant cases, it needs to be sustained by some key factors to adopt straight baselines in maritime delimitation. These sustainable factors include exercising sovereignty by the claimant, the trend of the coastline, the relevant economic gains from longterm utilization of the waters within the straight baselines, the tolerance of the international community, and the degree of land to sea connectivity.25

The reason why Russia and Canada adopted the straight baseline system is its usefulness to demonstrating the rationality of their maritime claims. According to the geographical state of the Arctic Archipelago, the Russian and Canadian portions are close to the mainland, thus the adoption of straight baselines complies with the condition of “adjacent land territory.”26 In addition, Russia and Canada’s claims of important national interests, such as fragile maritime environment, national security, and the local inhabitants in the Arctic region, need to be protected.27 Russia and Canada have in the Arctic waters varying degrees of “historical rights,” which are either hard to be proved in jurisprudence or to be recognized by the international community. However, with the support of “historical rights,” Russia and Canada are expected to achieve the integration of this with the “straight baseline” argument.

Russia and Canada’s “straight baseline” claims are subject to much dispute. In terms of the claims of the two countries, it is contentious whether the relevant straits within the internal waters of the straight baselines can be used for international navigation. According to the cases judged by the

International Court of Justice, the criteria for straits for international navigation are twofold: 1) geographical criteria, whether the high seas are connected at both ends of the straits;28 2) functional criteria, whether the straits could be used for international navigation, and whether or not there were practices of other countries to navigate through the straits in times of peace without the authorization of the coastal state.29 The relationship between the two criteria is quite contentious, such as whether the two criteria are subordinated to each other, whether the straits can be regarded as ones used for international navigation only by satisfying both criteria. From the view of geographical criteria, both the Northwest Passage and Northeast Passage can meet the requirements; that is, the high seas are connected at both ends of the Northeast and Northwest Passages.30 However, the

Russia’s NS 50 Let Pobedy in the Arctic Ocean. The nuclear-powered ship, launched in 2007 and whose name is translated as 50 Years of Victory, was the world’s largest nuclear-powered icebreaker until 2016.

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