1 Introduction
This paper examines Russian Arctic shipping legislation in light of relevant provisions of the United Nations Convention on the Law of the Sea (hereinafter referred to as âloscâ). The provisions of the losc are divided into two categories: normal rules and a special rule. Article 234 is a special rule for ice-covered areas. Provisions other than article 234 are normal rules. Section 2 of this paper concerns normal rules, and section 3 concerns a special rule, article 234.
There are three main routes for Arctic shipping: the Northwest Passage, the Northern Sea Route, and the Trans-Polar Route. Given the present ice conditions, the use of the Trans-Polar route is not a realistic option. It is the Northern Sea Route that has attracted much attention in East Asian countries such as Japan, China, and South Korea.
There are several advantages of the Northern Sea Route for East Asian Countries. First, for example, the distance from the port of Yokohama to the port of Rotterdam is 11,200 nm via the Southern sea route through the Suez Canal. The use of the Northern Sea Route reduces the distance by more than 40 percent. Second, the Northern Sea Route may be used by larger vessels than those admitted for transit through the Suez Canal. (See Arctic Council (2009):102, Vylegzhanin, et al.(2020):287.)
2 Overview of the Russian Legislation
In 2013, Russia enacted âRules of Navigation in the Water Area of the Northern Sea Routeâ (hereinafter referred to as âthe Rules of Navigationâ). The water area of the Northern Sea Route is defined by the Merchant Shipping Code. The water area of the Northern Sea Route includes the Russian eez, the Russian territorial sea, and its internal waters. It does not include the high seas beyond the limits of the Russian eez.
The purpose of the Rules of Navigation is to ensure the safety of navigation of ships and to prevent pollution from ships. To achieve these purposes, the Rules of Navigation imposes several requirements on ships entering the sea area of the Northern Sea Route. These requirements include a prior authorization requirement, a prior notification requirement and a ship reporting system, ice pilotage, and icebreaker escorting.
The core of the Rules of Navigation is a prior authorization requirement. The entry of a ship to the water area of the Northern Sea Route is permitted or prohibited according to criteria such as the ice class of the ship, ice navigation method, water area, and ice conditions. In the next two sections, I will consider whether these requirements are consistent with relevant provisions of the losc
3 Navigational Rights and Coastal State Jurisdiction under Normal Rules of the losc
Navigational rights under the losc are largely divided into three categories: the innocent passage regime, the transit passage regime, and freedom of navigation. The innocent passage regime applies to the territorial sea. It also applies to internal waters newly enclosed by straight baselines. The transit passage regime applies to straits used for international navigation. Freedom of navigation applies to the eez and the high seas.
There are three types of standards for the prevention, reduction and control of pollution from ships: discharge standards; construction, design, equipment and manning (cdem) standards; and navigational standards. For example, a prior notification requirement, pilotage and icebreaker escorting are navigational standards. Ice-strengthening construction standards are cdem standards. cdem standards have a special feature as compared with two other types of standards. Ships cannot adjust to divergent cdem standards during a voyage. Therefore, the losc requires coastal States not to apply their laws and
Table 17.1 shows the permissibility of three standards of regulations in each sea area.
Coastal state jurisdiction under normal rules of the losc
Territorial sea |
International straits |
eez |
||
|---|---|---|---|---|
Discharge standards |
unilateral |
+ (art. 21(1)(f)) |
â |
â (art. 211(5)) |
gairs |
+ |
+ (art. 42(2)) |
+ (art. 211(5)) |
|
cdem standards |
unilateral |
â (art. 21(2)) |
â |
â (art. 211(5)) |
gairs |
+ (art. 21(2)) |
? |
+ (art. 211(5)) |
|
Navigational standards |
unilateral |
+ (art. 21(1)(a)(f)) |
â |
â (art. 211(5)) |
gairs |
+ |
+ (art. 41, 42(1)) |
+ (art. 211(5)) |
Three rules are relevant to the subject under discussion. First, in the territorial sea or international straits, a coastal State shall not deny, hamper or impair innocent passage or transit passage (losc, art. 24(1), art. 42(2), art. 44). Second, in the territorial sea, a coastal Stateâs laws and regulations shall not apply to cdem of foreign ships unless they are giving effect to gairs (losc, art. 21(2)). Third, a coastal Stateâs prescriptive jurisdiction in the eez is limited to adopting laws and regulations conforming to and giving effect to gairs (losc, art. 211(5)).
Now, I will examine coastal Statesâ measures in light of the relevant provisions of the losc. A requirement of prior authorization implies the possibility of denying passage, which is clearly in conflict with the duty not to deny innocent passage or transit passage. It is also clearly contrary to the very idea of the ârightsâ of innocent passage or transit passage. (See Hakpää & Molenaar (1999): 138, 144; Churchill (2005): 2753â2761).
Unlike prior authorizations, it could be argued that a requirement of prior notification is compatible with the right of innocent passage and falls within the coastal Stateâs competence under article 21, paragraph (1)(a) relating to the regulation of maritime traffic. In international straits and the eez, a coastal
The application of cdem standards exceeding generally accepted international rules and standards is prohibited even within the territorial sea. For stronger reasons, it would be prohibited in international straits and the eez.
There has been much debate on the legality of a system of compulsory pilotage. Some authors such as Beckman (2007) have argued that a system of compulsory pilotage would have the practical effect of impairing or hampering the rights of transit passage and innocent passage. This is because the ships must stop to take on a pilot and pay for the pilotage service. Other authors such as Bateman & White (2009) have argued that a system of compulsory pilotage could be operated in such a manner as not to hamper or impair transit passage and innocent passage. For example, if pilots are readily available, they are efficient and competent, and the fee is reasonable, the system does not have the practical effect of hampering or impairing transit passage.
To summarize:
- âIt is impossible to justify a prior authorization requirement under the normal rules of the losc;
- âIn contrast, it could be argued that a prior notification requirement is permitted in the territorial sea;
- âcdem standards regulation exceeding generally accepted international rules and standards is not permitted even within the territorial sea; and
- âThe legality of a system of compulsory pilotage is controversial.
In other words, Russian legislation includes requirements that cannot be justified by the normal rules of the losc. Therefore, the next issue is whether these requirements are justified by a special rule, article 234.
4 Coastal State Jurisdiction under Article 234 of the losc
Article 234 provides: âCoastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in iceâcovered areas within the limits of the exclusive economic zone â¦â The main elements of this article include: âice-covered areasâ; âwithin the limits of the eezâ; non-discriminatory; âdue regard to navigationâ; and âbased on available scientific evidence.â What is important is that article 234 refers to neither âgenerally accepted international rules
The applicability of Article 234 to the territorial sea is the most controversial issue with respect to this article. There are two opposing interpretations. The first interpretation is that Article 234 applies only to the eez (e.g., McRae & Goundrey (1982); Chircop (2009); Franckx & Boone (2017)). The second interpretation is that Article 234 applies to the territorial sea as well as to the eez (e.g., Pharand (2007); Yang (2006); Bartenstein (2011a)(2019)).
The logic of the first interpretation is as follows.
- 1.The limit of the âeezâ is unequivocally defined by article 55 as âan area beyond and adjacent to the territorial seaâ;
- 2.It would be absurd if a coastal State had broader powers in the eez than in its territorial sea; and
- 3.Therefore, powers under article 234 are not broader than those which the coastal State has in the territorial sea.
The logic of the second interpretation is as follows.
- 1.Powers conferred by article 234 are broader than those conferred by the normal rules applicable to the territorial sea;
- 2.It would be absurd if a coastal State had broader powers in the eez than in the territorial sea; and
- 3.Therefore, article 234 applies not only to the eez but also to the territorial sea.
According to the second interpretation, coastal Statesâ powers under article 234 are broader than the powers which coastal States have in the territorial sea. That is why I call this interpretation âa broad interpretation.â In contrast, according to the first interpretation, powers under article 234 are not broader than powers which the coastal State has in the territorial sea. Therefore, I call this interpretation âa restrictive interpretation.â
Then, what is the content of coastal State jurisdiction under article 234?
According to the restrictive interpretation, coastal State powers under article 234 are not broader than those under normal rules applicable to the territorial sea. As a result, according to this interpretation, cdem standards regulation exceeding generally accepted international rules and standards is not permitted under article 234. Also, the coastal State may not require prior authorization for entry into iceâcovered areas. (See McRae & Goundrey (1982): 221; Franckx & Boone (2017): 1579).
In contrast, many authors who support the broad interpretation consider that cdem standards regulation exceeding generally accepted international rules and standards is permitted under article 234 (See Churchill & Lowe
The last issue concerning article 234 is its relationship with the Polar Code. The Polar Code was adopted by the imo and entered into force in 2017. Amendments were made in the Code to solas and marpol Annexes to require State parties to these conventions to comply with the mandatory parts of the Polar Code. The Polar Code sets out additional requirements on ships navigating Polar waters. While the Polar Code is the first mandatory standard peculiar to the Polar Sea areas, there still exists a gap between the Polar Code and the requirements imposed by Russian legislation. As Chircop (2016) has pointed out, Russian Arctic shipping legislation includes requirements that do not appear in the Polar Code. For example, ice pilotage and mandatory reporting are not required by the Polar Code.
What is the relationship between the Polar Code and article 234 of the losc? The Polar Code is a minimum standard to be implemented by flag States. (See Bartenstein (2019): 340). While it constitutes generally accepted international rules and standards, and provides a basis for the coastal State jurisdiction under articles 21, paragraph 2 and article 211, paragraph 5, it does not limit the unilateral competence of coastal States under article 234, which does not refer to generally accepted international rules and standards.
5 Conclusion
Main points of this paper may be summarized as follows.
- âThe requirements set out by Russian Arctic shipping legislation include those that cannot be justified under the normal rules of the losc;
- âThese requirements may be justified by adopting the broad interpretation of Article 234;
- âThe Polar Code does not deprive article 234 of its significance. The Polar Code still has shortcomings and gaps. These gaps may be filled by the unilateral coastal State jurisdiction under article 234; and
- â
Therefore, the interpretation of article 234 is extremely important. Nevertheless, many uncertainties and ambiguities still remain about this article. Further discussion is needed about the interpretation of Article 234.
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