Regulating shipping in Russian Arctic Waters: Between international law, national interests and geopolitics

The conditions for shipping in the Arctic, where Russia’s Northern Sea Route (NSR) is located, are important for the international community, obviously for commercial reasons but also for safety and environmental concerns. The Law of the sea determines the basic legal regime of shipping in the Russian Arctic, but in practice it evolves through the interaction of many processes: climate change; Russia's security concerns; and relevant international political and legal processes. The project investigated how Russian NSR legislation is influenced by and how it is influencing international law and also how its policies for management of the route evolve. The project investigated the status and trends of the development and implementation of the Russian NSR regulations. Over the last few years, Russia adjusted the priorities of its policy for the NSR. The focus on international transit shipping has given way to resource extraction projects, exhibiting more potential than projected just a decade earlier. Moreover, it is difficult to ignore the effects of a tenser international situation after 2014 in the Russian Arctic. There has been a mismatch between the ambitious visions and realities, and international shipping never really took off. The 2022 military invasion of Ukraine and the intensification of the sanctions’ regime provide only more challenges and uncertainties for the realization of Moscow's ambitious development plans, as both the production of Russian hydrocarbons and the demand for them are uncertain. Although the economic development of the NSR is the most important priority for Moscow's policies in the sphere of Arctic shipping, the role of security and geopolitical factors have been rising. There has been a shift to soft security challenges, including the economic and environmental issues, but hard security still plays a crucial role. In the last decade, Russia had first taken a more inward thinking approach, leading to protectionist measures, and possibly justifying a more active control regime for shipping. More recently, there have been more efforts to improve Russian military capacity in the Arctic, and initiatives are being taken to prohibit foreign military presence in the Russian Arctic. Between 2012 and 2018 consistency between Russian legislation and international law improved. Main controversies generally relate to some 'old' practices, rather than to any new claims. The requirement of prior authorization or the need to use a Russian-flagged icebreaker for assistance have been retained through the legislative reform, rather than newly introduced. Overall, that period was characterized by an effort to liberalize access and maximize transparency of the legal regime. But the last few years showed a sign of regress. The regulatory focus rests on optimizing the management efforts for domestic purposes. There is a trade-off between transparency and centralization of management, and the current policies favor the latter. As regards the reactions of user States to the Russian policy and practice, the bilateral format clearly works best for China and Russia. However, bilateral cooperation has not been sufficiently ripe for these countries to resolve any specific differences. The Polar Silk Road (PSR) is still in infancy, and the war in Ukraine, or the fear of secondary sanctions, led China to lower its expectations. China’s ability to develop the PSR as a corridor between Asia and Europe would be best served by asserting the full scope of navigational rights and freedoms under UNCLOS, but its rhetoric remains careful in tone. One reason for this is that the ‘coastal-oriented’ posture of China in the south constrains China’s capacity to herald a full-fledged maritime position in the Arctic. After all, Chinese interests in areas closer to shore take precedence over China’s more remote interests in the Arctic. Moreover, there are gaps between the potential and actual impacts of the PSR on Chinese aspirations towards the Arctic. As regards the influence of Russian practice on the relevant international legal and political processes, there is some continuity between the historical contribution of the USSR to the negotiation of UNCLOS Article 234 and the current practice. The implementation of the Polar Code shows general support for and convergence with the Polar Code’s content. However, a comparison between the Canadian and Russian practice shows different approaches to the potentially common methodology of risk assessment for ice navigation. This might impact the future prospects of harmonization of regulatory approaches as the potential of a common baseline for regulation will probably not be utilized. Russia’s preoccupation with autonomy obstructs full harmonization and homogenization of the Arctic shipping governance landscape, which is the rationale and objective of the international process. This will inevitably affect the quality of the outcomes of that process.

The project contributed to increased competence on issues that are high on the agenda in the Arctic and the High North. It contributed to a deeper understanding of Russia’s practice and policymaking in the sphere of shipping in the Arctic. The understanding of the processes behind Russia’s practice and policies, as well as the way these interact with the relevant international legal and political processes, is key for policy development and decision-making in Norway as well as for the Arctic region and the broader international community. This understanding is of critical importance for cooperation with Russian authorities and maintaining good neighborly relationship regardless of the current status of the relationship. Russia remains Norway’s neighbor, and the insight into the drivers of its policy and practice in the Arctic is highly relevant for Norway. Another important outcome of the project involves increased interdisciplinary cooperation between academics, primarily from Norwegian research institutions, representing the disciplines of international relations, political science and legal research. The project also involved significant international cooperation with researchers from Norway, Canada, China, Estonia, Australia, and Russia. The international cooperation with Russia was particularly extensive and fruitful, as it helped facilitate mutual understanding between the ‘western’ and Russian epistemic communities. Unfortunately, the events in Ukraine and the increasing tensions between the west and Russia make it difficult to capitalize on the achievement in the near future. The understanding gained through the project has been communicated through regular contacts with users: representatives of the Ministries of Foreign Affairs of Norway, Sweden and Denmark, relevant stakeholders, and students of the Master of Law Program in the Law of the Sea. The project strengthened the role of the University of Tromsø, the Arctic University of Norway as a central provider of expertise on Arctic issues. The insight gained through the project has been widely disseminated through scientific publications, scientific and outreach events, and popular scientific publications. All these activities are expected to have a long-term impact on the understanding of Russia’s policy and practice in the Arctic by both the expert and general public community.

Russia has revised its legislation facilitating for increased international shipping in Arctic waters under its jurisdiction, defined as the Northern Sea Route (NSR). The Russian legislation, consistent with the law of the sea, ensures control with vessels transiting and operating within the NSR. The increased international attention to Arctic shipping has inter alia manifested in the adoption of international regulations through the IMO, known as the Polar Code. The purpose is to address the additional hazards of Arctic shipping and probably also to integrate the Arctic region more firmly within the international legal framework to ensure the global shipping interests. Non-Arctic States (e.g. China) have through their policies and practice positioned themselves as relevant actors in the Arctic. Russia still describes the NSR as “…the historical developed national communication of Russian Federation.” Under recently adopted legislation, the natural resources extracted in Russian Arctic shall be exported from its ports on vessels flying Russian flag. Knowing that at present and in foreseeable future most of the shipping in the NSR will be regional, this means a further limitation on international shipping. Russia has clearly signalled that new IMO regulations should not restrict its jurisdiction as recognized by the law of the sea. By investigating the trends in Russian regulation of shipping in its Arctic waters, its (direct) collaboration with other states and its conduct in relevant international bodies, this project provides for extracting knowledge on inter alia the impact of Russia’s security concerns mids of growing internationalization of Arctic affairs; the impact of international political and legal processes as well as the broader geopolitical and strategic interests of states (particularly Russia and China) and commercial actors. It will provide important knowledge on the dynamics of the interrelationship of institutions, processes and interests.