Summary of Working Paper No. 159-1999

IV.3.1 “The Application of LOSC Article 234 - Russian Arctic Waters”

By R.D. Brubaker, The Fridtjof Nansen Institute, Lysaker, Norway.

In this INSROP Working Paper, the last of a series dealing with jurisdictional issues, the controversial submerged passage is addressed first. Then conclusions are reached that a special Arctic regime is gradually developing both under customary international law and the parallel interpretation of Article 234 through State practice. The developing Arctic regime will define Article 234, the substance of which may prove to be considerably different from any of the theoretical interpretations. Denmark/Greenland and Norway are not expected to object to these developments for the Arctic, since they have not as yet demanded either coastal State rights or flag State rights under this regime. The provisions will be international, not unilateral, and only surface commercial vessels will be technically covered. Military surface vessels may be directed by their flag State to comply with the regime if it does not interfere with their operations or operational capabilities. Submarines are the rogue element in this regime, though this position under international law of the sea is not unusual or unprecedented. The rules will define specific “international” design, equipment, construction and crewing standards for commercial vessels navigating in ice-covered areas including international straits. The violation of these rules may most likely be enforced strictly as is presently done by Russia, the U.S. and Canada, including inspection, expulsion or seizure and criminal liability. Thus, a major segment may be removed from LOSC Part III without corresponding violation much in excess of that under the Malacca Agreement. In addition the ICJ’s judgement in the Corfu Channel Case is likely contradicted since passage rights are clearly determined by type of vessel; submarines may navigate under unlimited transit passage. Thus, though theoretically improbable, in practice it is the Article 234 regime which is the limitation device to LOSC Part III and not the opposite. At the same time, such rules arguably will be less precedent setting and transferable due to the restrictive area of application of Article 234, ice-covered areas, even if interpreted broadly. All Arctic littoral States will benefit environmentally due to the formation of a stricter regime allowing special “international” design, equipment, construction and crewing standards for commercial vessels. These may be in the process of becoming “generally accepted” through the examination of the code by the IMO submitted by the Harmonisation Conference. Due to the substantive clarification of Article 234, Russia and Canada may be less able to forward jurisdictional claims under its auspices, and this may be the reason why the U.S. supports this process.

This gives rise to the question why there appears so much mystification surrounding the Arctic legal regime? Though all international legal disputes are characterised by a certain amount of disorder, for the Russian Arctic this seems inordinate. Is this due completely to the security issues associated with submerged passage in this area? Conclusions made that legal and security concerns relate to areas geographically far removed from the NSR. Recommendations are then made for the purpose of diminishing tension and establishing more world order.