PCRC WORKING PAPER SERIESPCRC 2nd Symposium“The Future Design of the Arctic Ocean Legal Order”
July 28-29, 2016

PCRC Working Paper No. 6 (March, 2017)“Russian Approaches to an Emerging
Arctic Ocean Legal Order”
Alexander Sergunin© Alexander Sergunin 2017
Polar Cooperation Research Centre (PCRC)
Graduate School of International Cooperation Studies (GSICS)
Kobe University, Japan
http://www.research.kobe-u.ac.jp/gsics-pcrc/index.html

PCRC Working Paper No. 6 (March, 2017)

Russian Approaches to an Emerging Arctic Ocean Legal Order 1
Alexander Sergunin
St. Petersburg State University
Alexander Sergunin is Professor of International Relations, St. Petersburg
State University, Russia. He was Japan Society for the Promotion of
Science (JSPS) Invited Fellow at Polar Cooperation Research Centre(PCRC), Kobe University (July-August, 2016). His fields of research andteaching include Russian foreign policy thinking and making as well as
Russia’s Arctic strategies. His most recent book-length publications
include: Russia in the Arctic. Hard or Soft Power? (Stuttgart, 2016) (withValery Konyshev); Explaining Russian Foreign Policy Behavior: Theory
and Practice (Stuttgart, 2016); Russian Strategies in the Arctic: Avoiding a
New Cold War (Moscow, 2014) (with Lassi Heininen and Gleb Yarovoy);
Laboratories of European Integration: City-Twinning in Northern Europe(Tartu, 2012) (with Pertti Joenniemi); The Arctic in International Politics:
Cooperation or Competition? (Moscow, 2011) (with Valery Konyshev).

Introduction
The Arctic region is the subject of growing interest for the Russian policy-making
and academic communities. The dramatic changes, that are currently taking place inthe High North, also influence legal developments nationally, regionally andglobally. These dynamic developments at various levels of the Arctic environment,
economy and politics require a proper inquiry into the role of law in dealing withthese complex issues. As Loukacheva (2013: 13) rightly put it, although law is not apanacea for all problems emerging in the region, it has its own role to play in dealing
with many of them.
Both the Russian policy-makers and international lawyers pay a great attention to theuse of law to protect Russia’s national interests in the Arctic and shape an emerging
legal order in the region to Moscow’s benefit. For example, Russia’s 2013 Arctic
1

This research was supported by the JSPS Fellowship program and Russian Research Foundation(grant no. 16-18-10315).

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strategy calls for improving national legislation on the Arctic Zone of the RussianFederation (AZRF) (including regulations on industrial activities, environmental
issues, indigenous peoples and Northern Sea Route (NSR) navigation) and using
international law to expand Russia’s continental shelf and exclusive economic zone
(EEZ) in the Arctic Ocean (Putin 2013). With the adoption of the Polar Code in
2014-2015 Moscow has to cope with the challenge of its implementation that
requires both changes in Russia’s national legislation and Moscow’s intensive
international legal cooperation. These are few examples of how important legal
issues for Russia’s present-day domestic and external policies in the High North.
The research objective of this study is two-fold:On the one hand, it aims to examining Russia’s various international law
schools’ approaches to the existing and emerging legal order in the Arctic region.
Specifically, it focuses on Russia’s three main international law paradigms: neo liberal/cosmopolitan, neo-realist and ‘hybrid’ schools.

On the other hand, the paper outlines an emerging agenda of Russia’s Polar Law
debate: UNCLOS (UN Convention on the Law of the Sea)-related problems;
natural resources law; climate change; indigenous peoples; search and rescue
operations; oil spills response; Polar Code implementation; arms control andconfidence- and security-building measures (CSBMs) regimes; the prospects for
the Polar Law development.

Major Russian Polar Law schools
Based on different theoretical approaches and legal doctrines it is possible toidentify three main international law paradigms in post-Soviet Russia: the neoliberal/cosmopolitan and neo-realist ones which form a sort of opposite poles as wellas various ‘hybrid’ schools between them. Let’s characterize each of them.
Neoliberal/cosmopolitan
The neoliberal/cosmopolitan school represents the most radical departure from theSoviet-time Marxist-Leninist legal doctrine. According to the present-day Russianneoliberals, territorial sovereignty as the ordering principle for world politics has
been redefined, and in some ways transcended, by networks of interaction that2

PCRC Working Paper No. 6 (March, 2017)

involve actors of many different kinds and at many different levels. The state isoften a player in these networks, but it does not necessarily control them and isincreasingly intertwined with them (Dmitriev 2000; Kudryavtsev 1994 and 1995;
Lebedeva 2011).
Sovereignty is still a very important mode of power within the global polity but it is
not alone one. There is also another mode of power, namely governmentality thatorders world politics in a different way.
Governmentality does not challenge or undermine sovereignty, but rather steps in togive it a new form. The main challenge to international players is how to combine
these two modes of power to make the world both governable and secure.
According to this approach, the Arctic (particularly, its natural resources and sea
routes) is a common humankind's heritage/asset that should be exploited together
with other countries and in a very careful way (Baranovsky, 2002, Leshukov 2001;
Zagorsky 2011). International law and institutions should be in the focus of the
Arctic politics and be a basis for an emerging regional governance regime. The neoliberals believe that subregional institutions such as the Arctic Council (AC) andBarents-Euro-Arctic Council (BEAC) are parts of the global and regional
governance systems and should be designed and function accordingly. For them, theAC and BEAC should avoid discussion of security issues; rather, environmental
issues and the ‘human dimension' (indigenous people and other residents of the
Arctic regions) should be their main priorities.
Most radical neoliberal versions believe that an international legal regime similar to
the Antarctic Treaty one should be established (a comprehensive agreement should
be concluded on the Arctic to make it a ‘region of peace and cooperation’) (Dodin
2005: 23; Kovalev 2003; Sivakov 2009).
The proponents of the neoliberal approach point out that the military significance of
the Russian North has dramatically decreased in the post-Cold War period. The
region is, in their view, unable to play the role of the Russian military outpost. The
neo-liberals hope that the Arctic will be further opened up for international
cooperation to become a Russian ‘gate-way’ region that could help Russia to be
gradually integrated in the European and world multilateral institutions. They
believe that due to its unique geoeconomic location the AZRF has a chance to be a3

PCRC Working Paper No. 6 (March, 2017)"pioneer"/pilot Russian region to be included into the regional and subregional
cooperation. They think that a priority should be given to the issues that unite rather
thandisuniteregional

players—trade,cross-bordercooperation,transport,

environment, health care, Arctic research, indigenous people, people-to-people
contacts and so on. In this respect, they view the Northern Dimension partnerships2
as well as AC, BEAC and Nordic institutions' programs as a helpful framework forsuch cooperation (Baranovsky, 2002, Leshukov 2001; Zagorsky 2011).
In contrast with their opponents from the neorealist ‘camp’ the proponents of theneoliberal approach believe that most of the Arctic problems can be solved beyond
the security context, in a ‘normal way'. In case of a conflict, this school suggests to
use negotiations to realize positions of the opposite party and find a compromise that
could satisfy both contending sides. To this group of analysts, the work on thetechnical/instrumentalist level has a consolatory effect on the conflicting parties andcreates an interdependency mechanism that additionally contributes to the problem solving process.
The neoliberals stress that it is very important to guarantee that the Arctic players
should interact with each other on the basis of the following principles:

preserving peace, predictability and stability in the Arctic region;

ensuring sustainable management and development of natural resources;international cooperation to meet common challenges in the Arctic;developing national and international legal mechanisms to promote Arctic
governance.

Neorealist/national interest-based approach
In forging their legal doctrines the Russian neorealists prefer Kenneth Waltz’s(1979: 67) interpretation of sovereignty which is based on the assumption that a stateis sovereign when “it decides for itself how it will cope with its internal and external
problems, including whether or not to seek assistance from others and in doing so tolimit its freedom by making commitments to them”.
The Northern Dimension was initially launched as an EU program for Brussels’ cooperation withneighboring non-EU countries, including Russia (see Joenniemi and Sergunin 2003). In 2007 it wasredesigned into a system of partnerships between the EU and Iceland, Norway and Russia.
2

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This approach assumes the idea that states should be the only legitimate force ofnational power within their own borders. The same is true for the world politics
where the states act as sovereign and (theoretically) equal international actors andthey remain the main subjects of international law. According to John Mearsheimer(2006: 69), another neorealist pundit, the international relations system “comprises
independent states that have no central authority over them. Sovereignty, in otherwords, inheres in states because there is no higher ruling body in the international
system. There is no ‘government over governments’”.
The Russian neorealism’s vision of the Arctic legal regime is based on the following
principles:National interests are a key category. Among them, the economic and strategicinterests are most important ones.



The emphasis on the need to ascertain Russia’s sovereignty over the Arctic
territories, natural resources and maritime routes is made.



International law is mostly seen as an instrument to resist any foreign‘encroachments’ on the Russian sovereign rights in the region and keep control
over the Arctic spaces/resources/transport communications (Ovlashenko,
Pokrovsky 2012).



A regional governance regime is only possible as a temporary compromise
between the major (coastal) Arctic powers (A5) – Canada, Denmark, Norway,
Russia and the United States.

According to the neorealist perspective, Russia's principal interest is to turn the
Arctic into its main ‘strategic resource base' and other policy considerations should
be subordinated to this over-arching goal. Both Russian domestic policies in the
AZRF and Moscow's international strategy should be oriented to the protection of its
national interests in the region (Alexandrov 2009; Oreshenkov 2010; Voronkov
2012). Against this background it is especially important to secure Russia's
economic interests in the Arctic. A variety of various instruments ranging from
diplomacy and international arbitration to a modest military buildup and creation ofcapabilities to effectively prevent poaching and smuggling are suggested. In contrast
with the neoliberals, the neorealists are quite pragmatic as regards the international
institutions such as the UN, AC and BEAC. They do not believe that these5PCRC Working Paper No. 6 (March, 2017)

international fora are the components of the global or regional governance system
whose existence is sharply denied by them. They suggest using these bodies first andforemost to protect Russia's national interests in the region (like other member statesdo) rather than promote some abstract universal/cosmopolitan values.
The neorealists tend to see every Arctic problem from the national security point ofview—be it ecological problems and fisheries or territorial disputes and control overthe sea routes. For example, the 2013 Russian Arctic strategy is partially designed insuch an alarmist/securitized way by focusing on hard and soft security threats andchallenges to the AZRF. Even the very title of the document – ‘The Strategy for theDevelopment of the Arctic Zone of the Russian Federation and Ensuring National
Security for the Period up to 2020’ – reflects such a securitized approach.
The radical version of the neorealist school views the Arctic as a manifestation of
the perennial geopolitical rivalry between Russia and the West. The neorealists
believe that in contrast with the past, the West prefers economic rather than military
instruments for putting pressure on Russia. However, the aim of the Western policies
remains expansionist and boils down to securing Russia's status of the West's"younger partner" and a source of cheap natural resources and labor force.
‘Hybrid’/moderate schools
Along with two extremes – neoliberalism and neorealism – there are numerous‘hybrid’/moderate schools in the Russian international law community. Differing by
their specific legal postulates these schools, however, share some common principles
with regard to the existing and emerging Arctic legal system (Gureev 2011;
Vylegzhanin 2003):


The moderates believe that Russia should be a responsible international actor
who behaves on the international arena in line with international law principles
and international commitments. According to this school, the UNCLOS, Ilulissat
Declaration (2008), Arctic Council’s agreements (particularly, on search andrescue (SAR) operations and oil spill response), directions and recommendations,
Polar Code, etc. should be the legal basis for Russia’s Arctic strategy.

On the other hand, Russia should be firm in defending its legitimate rights andnational interests in the region, including the definition of the outer limits of theRussian continental shelf and expansion of its EEZ in the Arctic Ocean; control

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over the maritime routes; fighting poaching and smuggling in the AZRF;
modernization of the armed forces deployed in the High North, etc.


The moderates do not share the neoliberal view of the Arctic as the humankind’s‘common treasury’ and they do not believe that it is realistic to establish an
Antarctic Treaty-type legal regime in the High North (even in the distant future).
The moderates point out that statements which mention the Arctic’s deep seabed(or Area), continental shelves and high seas in the same breath as the common
heritage of mankind carry the risk of confusion. Deliberately or not, by omitting
to distinguish thoroughly between the different maritime zones, they may create
the impression that the whole (marine) Arctic is considered a common heritageof mankind.

However, the moderates favor creating a flexible regional governance system in
the Arctic based on the pragmatic combination of hard and soft law. The
moderates even do not oppose establishing some elements of supranational
governance in the region, like, for example, in the case of the Central Arctic
Ocean (Area) which is currently beyond the national sovereignty jurisdiction
and where any economic activities – be it extraction of hydrocarbons or fishery– are presently impossible while the local environment is extremely fragile andvulnerable. For instance, under the moderates’ pressure, the Russian government
agreed to sign a declaration on fishing ban around the North Pole in July 2015.



Similar to the neoliberals, the moderates suggest to make a full use of theexisting international institutions engaged in the Arctic affairs – the UN (and its
specialized bodies, such as the Commission on the Limits of the Continental
Shelf (CLCS), International Maritime Organization (IMO), UN Environmental
Program (UNEP), etc.), AC and BEAC. However, they do not believe that these
institutions will be able to exercise real supranational governance in the region
in the foreseeable future. The moderates, however, think that some institutional
reforms are possible. For example, they suggest empowering the AC with more
rights, including the right to conclude binding agreements (similar to the SAR
and oil spills response documents) and further institutionalization of the Council
with the aim to transform it from a discussion forum to a full-fledged
intergovernmental international organization (Vylegzhanin 2013).

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

According to the moderates, there should be a harmony between economic,
ecological, humanitarian and military-strategic aspects of Russia’s Arctic
policies which is only possible if Moscow builds its strategy on the basis ofinternational law principles and norms.

To sum up the Russian theoretical debate on the Arctic legal order, it should be
noted that regardless its strong polarization (neoliberal-neorealist dichotomy) acompromise/moderate schools have emerged that formed a mainstream of theRussian international legal thought. This mainstream has managed to avoid
xenophobic/ extremist views on the Arctic international relations system and develop
more or less moderate and well-balanced concepts.

Russian Polar Law: a Discussion Agenda
UNCLOS-related debates
Discussions on the sectoral and median principles. Since the Tsarist and Soviet times
Moscow favored the sectoral principle of division of the Arctic maritime spaces. On
15 April 1926 the Central Executive Committee of the USSR issued a decree entitled“On the Proclamation of Lands and Islands Located in the Arctic Ocean as Territoryof the USSR”. This document stated:
All lands and islands, both discovered and which may be discovered in the
future, which do not comprise at the time of publication of the present decree
the territory of any foreign state recognized by the Government of the USSR,
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.
long. from Greenwich, running along the eastern side of Vaida Bay through thetriangular marker on Cape Kekurskii, and the meridian 168°49' 30" W. long.
From Greenwich, bisecting the strait separating the Ratmanov and Kruzenstern
Islands, of the Diomede group in the Bering Sea, are proclaimed to be territoryof the USSR (The Central Executive Committee of the Soviet Union 1964).

The Decree referred directly to the sectoral concept and claimed only lands andislands inside the sector as Soviet territory. This act aimed to prevent scientific and

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economic expansion by other states on lands and islands within the Soviet Arctic
sector.
The Soviet legal doctrine was firmly based on the sectoral concept. The Soviet
international lawyers believed that all Arctic states had a sector. However, theydiffered by their views on the scope of the sectoral concept. One (predominant)group of scholars believed that only islands were territory of a coastal Arctic state(Kozhevnikov, 1964; Zhudro, 1964; Barabolya et al., 1966; Ignatenko andOstapenko, 1978; Modzhoryan and Blatova, 1979; Tunkin, 1982, 1986). The second
group of legal experts (minority) insisted that both lands and seas were under thesovereignty of an Arctic state (cf. Uustal, 1958).
Map 1. The U.S.-Soviet Maritime Boundary, as of 1990 Agreement

Source: http://www.state.gov/p/eur/rls/fs/128740.htm

9PCRC Working Paper No. 6 (March, 2017)

In the late Soviet and post-Soviet periods, however, both the Russian legal doctrine
and state practices have evolved (Timtchenko 1997). In the case of the U.S.-Soviet
treaty on the delimitation of the Bering Sea (1990) the Soviet Union followed thesectoral principle. The delimitation line in the Chukchi Sea coincided with theeastern limit of the Soviet sector (see map 1). Article 1(1) of this agreement stated:“The Parties agree that the line described as the ‘western limit’ in Article 1 of the1867 Convention, as defined in Article 2 of this Agreement, is the maritime
boundary between the United States and the Soviet Union” (Agreement between the
United States of America and the Union of Soviet Socialist Republics 1990). The
USSR used the sector line as a convenient way to delimit the sea expanses in thisregion and take into consideration its economic and strategic interests although thisagreement has met a fierce domestic opposition and never been ratified by the Soviet
and Russian Parliaments (Heininen, Sergunin and Yarovoy 2015b).
Map 2. Norwegian-Russian maritime disputes

Source: Kristoffer Stabrun. The Grey Zone Agreement of 1978. Fishery Concerns, Security
Challenges and Territorial Interests. Lysaker: Fridtjof Nansen Institute, December 2009, p. 5
<http://www.fni.no/doc&pdf/FNI-R1309.pdf>

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However, the Norwegian-Russian compromise on the delimitation of the Barents Sea
was a different story (Heininen, Sergunin and Yarovoy 2015a). The NorwegianSoviet negotiations started in 1974 from Moscow’s claim that the sectoral concept
should be a basis for the delimitation of the maritime space. The USSR insisted thatthe delimitation line should coincide with the western limit of the Soviet sector, i.e.,the meridian 32°04' 35" E. longitude (see map 2). Oslo, on the other hand, has based
its position on the extent of Norwegian territorial waters on an ‘equidistance (ormedian) line’. It is situated an equal distance from the coasts on either side (Norway
and Russia). At the heart of the dispute over the location of the maritime boundary
and the allocation of territorial control was the control of the continental shelf
between these two very different lines, or an area of approximately 155000 km² (andthe overlapping exclusive economic zones (EEZs) within this area). Moreover, in
addition to this specific dispute, were overlapping claims further north in the Arctic
Ocean, of approximately 20000 km². Altogether the disputed area was approximately
175000 km².
There were ups and downs in the Norwegian-Soviet/Russian negotiations concerning
the Barents Sea limits over the following years. For example, in 1991, there were
official announcements that the talks were soon to be finalized, but no agreement
was achieved. Throughout the 1990s and early 2000s, regular conflicts between Osloand Moscow took place because Norway, for ecological reasons, had introduced
strict rules and fixed quotas to regulate the fishery in the region, most of which were
never accepted by the Russian side. This led to considerable tension over theinspection and boarding of Russian fishing boats by the Norwegian Coast Guard.
The final agreement was signed in Murmansk, Russia, on September 15, 2010
(Treaty between the Kingdom of Norway and the Russian Federation 2010), and has
been subsequently approved by the two countries’ national parliaments. The
document came into force in July 2011. In this compromise, Oslo has withdrawn
some of its previous territorial claims and Moscow has consented to a shift of the1926 demarcation line (based on the sectoral concept) to share the 175,000 km 2 ofdisputed area in two almost equal parts defined by eight points. The northernterminal point of the delimitation line is defined as the intersection of the line drawn
through points 7 and 8 and the line connecting the easternmost point and thewesternmost point of the still undefined outer limits of the countries’ continental

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shelves (see map 3). In other words, Moscow made some concessions to the medianconcept.
Map 3. Delimitation of maritime territories in the Barents Sea in accordancewith the 2010 Norwegian-Russian treaty

Source: https://commons.wikimedia.org/wiki/File:Map_borderline_at_sea_Norway_Russia.gif.

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Although there were some protests against the 2010 agreement in Russia (mostly
from the ‘fishery lobby’) this compromise is important and may have some farreaching effects. It has demonstrated that in resolving their territorial disputes
Norway and Russia are committed to the international law, particularly to the
UNCLOS and, in a broader context, to the principles of the Ilulissat Declaration of
2008, a declaration that confirmed the eagerness of the five Arctic coastal states tosolve disputes between them by peaceful means, on the basis of international law.
Finally, Oslo and Moscow signaled to other A-5 states that by adopting a common
policy on conflict resolution they can reinforce their claim to leadership on Arctic
affairs against emerging actors such as the European Union and East Asian countries.
Since the UNCLOS neither prohibits nor favors the sectoral and median concepts,
the mainstream of the Russian international law thinking suggests a rather pragmatic
approach to the use of them. As Oreshenkov (2009 and 2009) puts it, depending on
the nature of a maritime dispute Moscow could use either of these principles. For
example, he believes that it was in Russia’s interest to stick to the median concept in
the case of the delimitation of the Bering Sea while the sectoral principle was morefavorable to Russia in the case of the demarcation of the Barents Sea. For this reason,
he is rather critical of the Gorbachev’s and Medvedev’s governments who concluded‘unfair’ agreements with the U.S. and Norway respectively. He also calls on the
Kremlin to be more professional and flexible with regard to the future resolution ofmaritime disputes which should be based on the pragmatic combination of bothconcepts.
The Arctic continental shelf-related debates. In its 2001 claim, Russia argued that
the Lomonosov Ridge and the Alpha-Mendeleev elevation are both geologicalextensions of its continental Siberian shelf and, thus, that parts of the Central Arctic
Ocean, as well as parts of the Barents Sea, the Bering Sea, and the Sea of Okhotsk,
fall under its jurisdiction. In effect Russia claimed sovereign rights over resources on
the seabed area of some 1.2 million km 2 outside the 200-mile line (see map 4).
However, the CLCS found the substantiation of the Russian claim on the shelfinsufficient and asked for more information. To collect data and make a newsubmission comprehensive research expeditions have been organized. The
expedition of 2007 with flag planting as a by-product was one of them.

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Map 4. The Russian claim on the Arctic continental shelf (2001)

Source: http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/RUS_CLCS_01_2001_LOS_2.jpg

Prior to the Ukrainian crisis there was a hope that three Arctic powers involved in the dispute (Canada, Denmark and Russia) could either reach an agreement on the divi
sion of the Arctic shelf before they make their individual submissions to the CLCS or even make a joint submission. However, these plans were denounced by then Canadian prime-minister Stephen Harper who claimed that the North Pole should be the Canadian one. This position has provoked other countries to act separately. In late 201
4, Denmark has filed its submission to the CLCS. In August 2015, Russia has officia
lly resubmitted its application for the extension of its Arctic shelf (http://www.un.or
g/depts/los/clcs_new/submissions_files/rus01_rev15/2015_08_03_Exec_Summary_English.pdf) (see map 5). The CLCS plans to start its reviewing in 2016.
International experts suggest several scenarios for the further developments if asecond, revised submission be returned by the CLCS. One extreme would be for
Moscow to withdraw from the UNCLOS and just declare unilaterally that its
continental shelf reaches up to the North Pole. Russia would still retain the right to acontinental shelf, and would find itself in the same position as the U.S., which

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remains outside the UNCLOS, and would have to rely on customary law to support
its claim. However, this option is hardly acceptable for Moscow because it would
provide a much less secure legal position than would a CLCS' decision which isconsidered as a legitimizing ruling.
Map 5. The Russian claim on the Arctic continental shelf (2015)

Source: http://www.un.org/depts/los/clcs_new/submissions_files/rus01_rev15/2015_08_03_Exec_ Summary_English.pdf

The strong nationalistic groupings in Russia would support such unilateralism.
However, Russia's official policy undoubtedly lies within the UNCLOS framework.
Russia has much to lose if it undermines the authority of the UNCLOS in the Arctic.
Moscow tries to avoid a conflict situation because any conflict, even if not armed,
would prove to the world that the UNCLOS does not work and weaken thelegitimacy of the Convention. Such weakening is seen by Moscow as dangerous andunacceptable.
As Moe (2014) put it, the other extreme scenario would be to accept that the initialsubmission was too ambitious and not substantiated by geophysical research and15

PCRC Working Paper No. 6 (March, 2017)come back to the Commission with a revised, less expansive position. On the one
hand, this alternative would definitely show respect for international law. However,on the other hand, such an initiative would entail large domestic political costs for a
Russian leader who would dare to abandon Russia's ambitious Arctic claim. As theRussian 2015 submission shows, it basically repeats the 2001 claim which meansthat Moscow would not follow the second scenario.
Both foreign and Russian experts did not exclude one more, third, scenario which,they believed, was both possible and the most likely. That option was Moscow's
agreement to postpone the revision the new submission by the CLCS (Moe 2014;
Zagorski 2013). First, it will take the CLCS years or even decades to consider the
existing and forthcoming applications. Even if it becomes clear that the Russian
claims on the Lomonosov and Mendeleev ridges cannot be substantiated, all the
Arctic states may decide that it is better to agree on disagreement and continue
business as usual.
Besides the need to preserve the UNCLOS in the Arctic, also a realistic assessmentof their economic interests and technical capabilities prevent them from a conflictover the disputed areas. These areas are very deep and extraction of oil and gas there
will not become profitable for many decades. Moreover, as the most authoritative
assessment of Arctic mineral resources from the US Geological Survey maintains,most hydrocarbon resources are likely to be found in relatively shallower waters,
within the 200-mile limit (U.S. Geological Survey 2008). Most of these
uncontroversial continental shelves are relatively unexplored and the conflicting
parties first should develop them.
As the recent Danish and Russian submissions demonstrate, this scenario, however,
was not implemented as well.
In principle, the “cooperative/compromise scenario” which was discussed prior to
the Ukrainian crisis is still possible. Based on its authority the CLCS could
encourage the three contenders to negotiate a compromise variant of an agreement
which could probably include the idea of making the Central Arctic a zone ofinternational cooperation and/or natural reserve governed by the UN. Such idea isstill floating among the academic and experts communities of the coastal states. In
any case, as Moscow repeatedly underlined, the Kremlin plans to solve the problem
within the UNCLOS framework, peacefully and on the basis of a solid research data.

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Map 6. The water area of the Northern Sea RouteSource: http://asmp.morflot.ru/en/granici_smp/

Freedom of navigation via the Northern Sea Route. Moscow defines the Northern
Sea Route (NSR) as a historically existing national unified transport route of theRussian Federation in the Arctic, and therefore considers it to be under its exclusive
jurisdiction (see map 6). It is widely acknowledged that in the future, an ice-free
Arctic could significantly reduce transportation costs by cutting the distance from
Western Europe to Japan or China by 20 to 40% (see map 7). All the Asian cities tothe north of Hong Kong could reach Europe more rapidly via the Arctic than via theSuez Canal. The potential benefits brought about by the opening the NSR are
therefore of greater interest for Japan, Korea, and China than, for example, for India.
For instance, the route between Hamburg and Yokohama through the Suez Canal(18,350 kilometers) would be reduced to 11,100 kilometers by using the NSR, whichin theory reduces the sailing time from 22 to 15 days; in other words, a 40%
reduction. The route between Rotterdam and Shanghai, meanwhile, would be
reduced from 22,200 kilometers (via the Cape of Good Hope) to 14,000 using the17PCRC Working Paper No. 6 (March, 2017)

NSR. The volatile situation in the Middle East, especially since the “Arab spring” of
2011, the overburdening of the Suez Canal, rising tensions in the Hormuz Strait and,more importantly, growing piracy in the Horn of Africa, all encourage thedevelopment of new alternatives.

Map 7. The Northwest Passage and Northern Sea Route (as compared to the southern routes).

Transit from Russia to the North American continent would also be made shorter bycrossing the Arctic. Murmansk is only 9,600 kilometers from Vancouver via the
Bering Strait, but is 16,000 kilometers via the Panama Canal. In 2007, Russia andCanada both evoked the concept of an “Arctic bridge” connecting the port of
Churchill in Manitoba to Murmansk. The project had already been raised some years
before; OmniTRAX, a major railroad operator that owns the Churchill port, had beenin negotiations with the Murmansk Shipping Company on this issue. In 2007 and2008, the first shipments of Russian fertilizer from Kaliningrad purchased by the
Farmers of North America cooperative of Saskatoon arrived in Churchill from
Murmansk.
In contrast with the above optimistic expectations, some international experts(Antrim 2010; Laruelle 2013; Moe and Jensen 2010; Smith and Giles 2007;
Stepanov, Ørebech and Brubaker 2005) point out that travelling along the NSR posesa number of significant challenges. First, the disappearance of the ice-cap during the18

PCRC Working Paper No. 6 (March, 2017)

summer does not mean that the Arctic Ocean will become totally ice-free. Ice canquickly form in very different locations and can take ships by surprise and reduce
the predictability of the journey. There will still be icebergs; and the danger ofcollision will be considerable. Travelling in extreme climate is difficult in technicalterms because it requires ice-class vessels, including ice-breaking capacities, while
there are also numerous administrative-technical barriers to be taken into accountsuch as the Russian demands that foreign ships pay fees for chartering icebreakers,
obtaining weather and ice reports, and hiring Russian pilots to guide vessels in thestraits. These expenses are considered too costly by the main international shipping
companies.
In addition, the insurance for vessels traversing the NSR tends to be very expensive
because the international insurance companies have to take into account the NSR’s
unpredictability in terms of time and conditions of cargo shipments. Indeed, the NSR
presently has a limited operational rescue system – there are only three rescue
centers in Dikson, Tiksi and Pevek (see map 8). The number of ports that are able tohost ships in need of repairs is insufficient, while the risks of collision are
considerable because of the unpredictable ice conditions and because the lanes of
direction are not clearly defined. The Russian government plans to build 10 searchand rescue centers along the Russian Arctic coastline (three of them are alreadyoperational) but the question whether these plans would come true or not andwhether these centers would be sufficient to develop the NSR up to the level ofinternational safety standards remains open to discussion.
Finally, in terms of environment and ecological considerations, maritime traffic in
the Arctic region will increase the risk of accidents. The international agreement on
prevention and fighting oil spills in the Arctic signed at the AC ministerial meetingin Kiruna (May 15, 2013) and Polar Code are helpful in coping with thisenvironmental threat but still insufficient to solve the whole problem. In fact, theabove concerns have not yet precluded both Russia and potential NSR users from theambitious plans to develop this important Arctic route.

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PCRC Working Paper No. 6 (March, 2017)

Map 8. Search and rescue centers on the Arctic Ocean’s coastline and their zones of
responsibility.

Source: http://www.arctic-lio.com/nsr_searchandrescue

Ever since the Soviet period, the NSR has been of vital importance for Russia both
economically and socially. The NSR is now actively used by “Norilsky Nikel”,“Lukoil”, “Gazprom”, “Rosneft”, “Rosshelf”, “Novatek” and other Russiancompanies to ship products and supplies to and from their plants, mines, oil and gas
fields. The NSR is one of the main routes for the so-called ‘Northern supply’ –supply of foodstuff, consumer goods and fuel to the northernmost Russian
settlements.
In the Soviet era, the NSR was a completely domestic sea route that was closed tointernational shipping. More recently, however, as the Arctic ice melts, the NSR
becomes more accessible for navigation. Today, Russia has a great interest intransforming the NSR into a sea line of communication that is open to international
trade. The maintenance of its own Arctic fleet, in particular of the icebreakers, andof port infrastructure is extremely costly, and additional revenues are therefore
welcome. The more international navigation grows, the lower the costs will be for
intra-Russian trade.
The first offer to open the NSR to international shipping was made by Moscow as
early as in 1967, with the beginning of the détente period, but it has never become areality. The offer was repeated in Mikhail Gorbachev’s Murmansk speech (1987).
The route was formally opened to international use in 1991, just a few months before
the collapse of the Soviet Union. The norms for using the route were laid down in20

PCRC Working Paper No. 6 (March, 2017)

the Regulations for Navigation on the Seaways of the NSR (1991), the Guide forNavigation through the NSR, the Regulations for the Design, Equipment, and Supplyof Vessels Navigation in the NSR (1995), the Federal Law on the Northern Sea
Route (2012) and the Ministry of Transportation’s Regulations on Navigation
through the NSR (2013).
The two later documents stipulate conditions of transit and demand new insurance requirements, under which responsibility for possible environmental damage and pollu
tion is ascribed to ship owners, and which set rather costly tariffs for assistance and logistical information. These —icebreaker assistance, sailing master services, radio communication and hydrographic information—are provided by the federal state unita
ry enterprises «Atomflot» (nuclear icebreakers, pilot services) and “Rosmorport” (diesel icebreakers) as well as by the private companies such as the «Far Eastern Shippi
ng Company», «Murmansk Shipping Company», Murmansk transport branch of the“Norilsk Nickel”, “Lukoil” (diesel icebreakers) and “Ice Pilots Ltd” (pilot services)(http://asmp.morflot.ru/en/org_ledokol_provodka/; http://asmp.morflot.ru/en/org_loc
man_provodka/). The NSR Administration, which was reborn in March 2013 and no
w is based in Moscow, consider applications for the navigation through the NSR, co
ordinates the activities of the above companies and exercises control over the navigation safety.
To support internationalization of the NSR Moscow launched a number ofinvestment projects to modernize the NSR infrastructure. To this end in 2012–2014
over 21 billion rubles are allocated to the construction and modernization ofmaritime infrastructure in the Arctic (http://premier.gov.ru/events/news/17172). In
this light, some experts expect the potential volume of freight traffic in both Easternand Western directions of the NSR to reach 35–40 million tons per year by 2020
(http://www.dvinaland.ru/economy/priority/smp_doclad.html).

However,otherexperts still seriously doubt not only the potential of the NSR and its ability to
become an alternative route to the southern ones, but also in the necessity of theinfrastructural development in the High North. These analysts believe that Russia
has more important priorities in the development of the national transportation
system.
It should be noted that although Russia’s Arctic coastline stretches more than 14,000
km across the Barents, White, Kara, Laptev, and East Siberian Seas, the NSR is21

PCRC Working Paper No. 6 (March, 2017)considered to lie between the Kara Gate, at the western entry of the Novaya Zemlya
straits, and Provideniya Bay, at the southern opening of the Bering Strait, whichmakes a total length of 5,600 km (see map 6). The Barents Sea is therefore not an
integral part of the NSR’s legal regime. The NSR includes the passage of nearly 60
straits, the main ones being the Vilkitski, Shokalski, Dmitri Laptev, and Sannikov
Straits, running through three archipelagos, Novaya Zemlya, Severnaya Zemlya, andthe New Siberian Islands. The legal definition is thus made more complex as there is
not one single shipping channel; rather, there are multiple lanes, and the NSR
crosses through waters of different status: internal, territorial, and adjacent waters,
exclusive economic zone, and the open sea. Indeed the course of the route depends
upon whether the ship crosses close to the coastlines or further out, or chooses to
bypass Severnaya Zemlya (see map 9).
Map 9. The alternative ‘versions’ of the Northern Sea Route.

Source: http://www.globalsecurity.org/military/world/russia/images/north-sea-route-map1.gif

The previously mentioned Russian binding rules stipulating conditions of transit andnew insurance requirements have been validated by major international insurancecompanies. However, they have been refuted by the U.S., which believes that
acceptance of such regulations would mean recognizing Russia’s sovereignty beyond

22

PCRC Working Paper No. 6 (March, 2017)its territorial waters. The International Chamber of Commerce has therefore
expressed its concerns and recalled that the UNCLOS regime on straits used forinternational navigation should take precedence over the rights of coastal states.
Moreover, the U.S. discontent is explained by the suspicion that only foreign ships
pay for possible environmental damage and pollution, and that Russian ships are
exempt, which in legal terms can be regarded as a discriminatory measure. Moscow
has, however, denied such allegations by saying that, according to the regulations,
all ships – Russian and foreign – should present civil liability and insurance
certificates while applying for an admission to navigate through the NSR(Application for Admission 2013). Moreover, the Kremlin opposes the international
status of straits along the NSR saying that all of them are historically controlled by
Russia and no international agreements were concluded to define these straits’ statusas ‘global commons’ (Ovlashenko and Pokrovsky 2012; Solntsev and Kopylov 2010;
Zhilina 2012).
To defend its rights in the NSR water area Moscow refers to the UNCLOS Article
234 which has recognized special hazards of navigation in ice-covered waters andhas given extra powers for coastal states to pass and enforce laws for control ofvessel source pollution for those waters. A coastal state may adopt stricter thaninternational pollution standards normally applicable in the EEZ. The Article 234
provides:Coastal States have the right to adopt and enforce non-discriminatory laws andregulations for the prevention, reduction and control of marine pollution fromvessels in ice-covered areas within the limits of the exclusive economic zone,
where particularly severe climatic conditions and the presence of ice coveringsuch areas for most of the year create obstructions or exceptional hazards t onavigation, and pollution of the marine environment could cause major harm toor irreversible disturbance of the ecological balance. Such laws and regulations
shall have due regard to navigation and the protection and preservation of themarine environment based on the best available scientific evidence (UNCLOS
1982).

However, as some Russian international jurists point out, the Article 234 leaves open
many questions of interpretation (Goverdovsky 2009; Sivakov 2009). For example,
what is the significance of recognizing special coastal state powers specific to the23PCRC Working Paper No. 6 (March, 2017)

EEZ? One interpretation is that coastal states are given no greater powers than those
granted for the territorial sea and thus no unilateral right exists to adopt special ship
construction, crewing and equipment standards. What extent of ice coverage isrequired to invoke this article (especially given the current trend of melting ice in the
Arctic Ocean)? It is unclear whether this article is applicable to international straits(although Russia denies such status for straits in the NSR water area)? The
application of Article 234 to straits used for national navigation may also bequestioned, although the UNCLOS does not explicitly exempt straits fromapplication.
To solve these legal issues and properly regulate navigation in the NSR water area
and in the Arctic region at large this school of legal thought suggests to conclude a
special treaty among the Arctic states and other potential users of the polar maritime
routes. Such a treaty should regulate legal status of the Arctic sea routes,
delimitation of maritime spaces, EEZs, outer limits of continental shelve,
environmental standards, maritime protected areas, maritime safety rules, militaryactivities, Arctic research and so on (Dodin 2005; Kovalev 2003; Sivakov 2009). In
fact, this suggestion is close to the idea of establishing an Antarctic Treaty system in
the Far North.
The Russian mainstream, however, strongly believes that the Article 243 is fully
applicable to the NSR water area and the entire Russian EEZ in the Arctic Ocean(Ovlashenko and Pokrovsky 2012; Solntsev and Kopylov 2010; Zhilina 2012). Thisschool points out that even if melting of the Arctic ice to continue in the summer
season, the Russian Arctic sector still will be covered with ice most of the year. For
this reason, Moscow will have a legal right to invoke the Article 234 in theforeseeable future.
In sum, despite some legal inconsistencies and the lack of a proper infrastructure the
NSR will remain an important priority for the Russian future strategy in the Arctic
region. The NSR is considered by the Kremlin as an effective instrument to develop
the AZRF both domestically and internationally. For this reason, Moscow plans tomake considerable investments to the development of the NSR and bringing its
infrastructure to international standards. However, similar to other dimensions of its
Arctic course Russia faces an uneasy dilemma: how to combine its control over the24PCRC Working Paper No. 6 (March, 2017)

NSR with the passage’s opening up for international cooperation and its integration
to the global transportation system.
Polar Code implementation
The Russian international lawyers view the IMO’s Polar Code (PC) as important
step forward to increasing maritime safety and prevention pollution in the Arctic.
The previous IMO documents did not describe at length hazards to shipping in polar
areas. For example, the IMO Guidelines for Ships Operating in Polar Waters(December 2, 2009) have briefly referred to the unique risks of shipping in polarwaters, such as poor weather conditions; the relative lack of good charts,
communication systems and other navigational aids; difficulties to and high costs of
rescue or clean-up operations because of the remoteness of the polar areas; cold
temperatures effects that may reduce the effectiveness of numerous components ofthe ship, ranging from deck machinery and emergency equipment to sea suctions;
ice’s additional loads on the hull, propulsion system and appendages (International
Maritime Organization 2010: 3). It was also underlined that sea and glacial ice is“the single most significant factor in Arctic and Antarctic operations” (Ibid: 4).
In contrast to previous documents, the PC adopted in November 2014-May 2015 hasa special section (Article 3.1) with a detailed description of hazards. Particularly, it
identifies ten most significant hazards:


ice, as it may affect hull structure, stability characteristics, machinery systems,
navigation, the outdoor working environment, maintenance and emergency
preparedness tasks and malfunction of safety equipment and systems;experiencing topside icing, with potential reduction of stability and equipment
functionality;

low temperature, as it affects the working environment and human performance,
maintenance and emergency preparedness tasks, material properties andequipment efficiency, survival time and performance of safety equipment andsystems;

extended periods of darkness or daylight as it may affect navigation and humanperformance;

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PCRC Working Paper No. 6 (March, 2017)

high latitude, as it affects navigation systems, communication systems and thequality of ice imagery information;

remoteness and possible lack of accurate and complete hydrographic data andinformation, reduced availability of navigational aids and seamarks withincreased potential for groundings compounded by remoteness, limited readily
deployable search and rescue (SAR) facilities, delays in emergency response andlimited communications capability, with the potential to affect incident
response;

potential lack of ship crew experience in polar operations, with potential forhuman error;potential lack of suitable emergency response equipment, with the potential for
limiting the effectiveness of mitigation measures;

rapidly changing and severe weather conditions, with the potential for escalationof incidents; andthe environment with respect to sensitivity to harmful substances and otherenvironmental impacts and its need for longer restoration (International
Maritime Organization 2015: 6-7).

The PC is quite realistic in its assessments regarding the possibility to ensure fullship safety and protection of vulnerable marine environments in polar areas and its
authors understand that it is very difficult to do this. The Code, however, offerssome framework for risk-mitigation strategies and suggests specific measures tocope with the above risks and challenges. First and foremost, it is done by bothmandatory provisions on safety measures and pollution prevention as well bymaking recommendations on the same issues.
However, some specialist in environmental law have criticized the Code for notgoing far enough to protect the Arctic and Antarctic environments, arguing thatwhile the new code is a positive step forward, it is insufficient to properly protect
polar environments from the anticipated increased levels of shipping activity. One
concern expressed includes the failure to phase out the use of heavy fuel oil in the
Arctic, though it is already banned in Antarctica (Fomin 2015; Haun 2014). Anotherconcern is related to the Code’s reluctance to prohibit the discharge of ballast water.

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PCRC Working Paper No. 6 (March, 2017)

Other experts are concerned about the lack of clear regulations with regard to thevessels operating with inadequate ice-strengthening and structural stability. The
Code contains regulations requiring that ship operators limit entry into ice according
to the ability of their ship to resist ice pressure, but concerns remain due to the factthat non-ice strengthened ships will still be allowed to operate in ice covered waters.
The structural requirements too are found lax, for instance, being ice-classed is not arequirements for ships making one Arctic passage. Polar certification does not
require a physical separate survey and the Code allows this to be simply sent by
email (Haun 2014). Some Russian specialists are discontent with the lack of a clear
and proper definition of an icebreaker in the Code which can create confusion andtroubles in safety net (Vasilyev et al. 2015: 11).
Some environmental jurists believe that there will still remain disturbances ofwildlife. While the code includes requirements for ships to avoid marine mammals
such as whales and walruses, it fails to consider seabird colonies. Other experts
criticized the IMO for some other omissions in the new standards, including the lackof mandatory provisions to prevent introduction of invasive species, failure to
restrict discharges of graywater and failure to address underwater noise ( Levinson
and Harun 2015; Rosen 2015a).
As far as the PC implementation is concerned there are three major dimensions of
this process – legal, economic/technical and institutional:
Legal aspects. As far as the Code’s integration with Russian domestic regulatory
law is concerned, the Russian legal experts believe that there is no need toradically change basic federal laws related to commercial shipping. However,some technical changes were made in the Russian Commercial Shipping Codeand the Law on Sea Ports of the Russian Federation (Putin 2016). Some changes
are planned in other regulatory documents, such as the Technical Regulations on
Maritime Transportation Safety, Rules for the Classification and Construction of
Sea-Going Ships, Rules for the Technical Supervision of Ships in Service, Rulesof Navigation in the NSR Water Area, etc.

Economic/technical dimensions. The “pessimistic” school (represented by someRussian industrialists, shipping and insurance companies) doubts that Russian
design bureaus and shipbuilders will be able to produce new vessels compatible
with the PC standards after January 1, 2017 and refit existing ships to meet the27

PCRC Working Paper No. 6 (March, 2017)

Code’s requirements by January 1, 2018 or, in some cases, by the end of 2020
(E-navigation and the Polar Code 2014). This group of experts criticizes theRussian representatives in the IMO who signed the Code without being granted
a proper transitional period (up to five years as some specialists suggested)(Positsiya Rossii po Polyarnomu Kodeksu 2014). The “pessimists” accuse theforeign shipbuilders who have already possessed the marine environmentfriendly technologies of lobbying their interests in the IMO and undercutting theRussian competitors.
On the other hand, the “optimistic” school points out that the Western economic
sanctions coupled with the Kremlin’s course on import substitution and the need tocomply with the PC requirements encourage the Russian shipbuilding industries todevelop their own technologies (Polyarnye Sanktsii Pomogut Rossii 2014). The
same is true for the Russian crew training system and insurance sector which,according to the “optimistic scenario”, will get new stimuli for a radical
modernization.
Institutional aspects. The institutional mechanisms responsible for the PC
implementation differ greatly from country to country. In Russia, the Ministry ofTransport (MT) is the main governmental body charged with the Code’s
implementation. Particularly, the ministry’s Department of State Policy on
Maritime and River Transport, Russian Maritime Register of Shipping and theAdministration of the Northern Sea Route (part of the ministry’s Maritime andRiver Transport Agency) are responsible for the PC implementation. As far as
ice conditions and meteorological forecasts are concerned these agencies should
coordinate their activities with the Federal Service for Hydrometeorology andEnvironmental Monitoring and Russian Federal Space Agency (replaced by theState Space Corporation in early 2016). Since SAR operations and oil spill
prevention and response in the Arctic are conducted by the Ministry for Civil
Defense, Emergencies and Elimination of Consequences of Natural Disasters,
the MT and its bodies should cooperate with this important institution as well.
Finally, some other government agencies such as the Coast Guard, Defense
Ministry and Ministry of Natural Resources and Environment are regularly
being involved into the Code’s implementation. All this creates a problem of
coordination of the above governmental agencies and establishment of a proper
division of labor between them.

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PCRC Working Paper No. 6 (March, 2017)

Some Russian legal experts raise the question of how, given that the Polar Code is
not really an enforcement document, will such issues as ship source pollution be
enforced on international waters both as a practical and legal matter, beyond theauthority of the flag states?
Other experts note that the linkages amongst flag state, port state, classificationsocieties, labor and insurers are in their infancy stages. Most Russian experts believethat enforcement is essentially up to the flag states. Others point out the primacy ofport and coastal state jurisdiction. Some specialists note that with respect tocooperation across all relevant parties (flag states, port states, classification societies,etc.) it is particularly relevant to introduce coordinated port control procedures for
identifying possible violations of the PC requirements.
Some experts note that the STCW (the International Convention on Standards ofTraining, Certification and Watchkeeping for Seafarers of 1978) includes enhanced
procedures concerning the exercise of port State to allow intervention andenforcement where deficiencies might endanger persons, property or theenvironment. This can occur if certificates are not in order, or, if an illegal dischargeof substance causing pollution takes place.
As to the infrastructural aspects of the PC implementation the Russian Ministr y ofTransport plans to develop a high-altitude version of the NSR for large-capacity
vessels. The first phase of the project aims to establishing 2-mile wide main andalternative lanes; at the second phase, 20-mile wide routes will be laid out (see map
10). To this end, the MT’s Federal State Unitary Hydrographic Department charts
the routes with the help of three hydrological ships (http://www.hydrostate.ru/kage.html).
To fully implement the Code, Russia should complete the creation of ten federal
SAR centers along the NSR. As mentioned above, currently, three federal SAR
centers are already operational in Naryan-Mar, Archangel and Dudinka. Moreover,there are four regional SAR and fire units, two maritime SAR coordination centers(Murmansk and Dikson), three maritime SAR stations (Archangel, Tiksi and Pevek)
and four storages for equipment for oil spill response (Dikson, Tiksi, Pevek andProvidence) (Vasilyev et al. 2015: 29).

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PCRC Working Paper No. 6 (March, 2017)

Map 10. High altitude routes in the NSR water area.

Source: http://www.hydro-state.ru/kage.html

To further develop the NSR and bring it to international standards, some Russian
experts suggest establishing an international consortium with the participation of
Atomflot (nuclear icebreakers), Sovkomflot (tanker, gas and cargo fleet), Rosmorport(port and navigation infrastructure) and international shipping companies (tanker andcontainer fleet) (Semenikhin and Novosel’tsev 2015: 9).
To increase safety of the maritime traffic via the NSR Russia should further develop
SafetyNET and Navtex systems in the NSR area. Particularly, in addition to theexisting Navtex station in Tiksi, a new Navtex station will be built on the Andrew
Island (see map 11).
As for technical aspects of the PC implementation many Russian and Western
experts believe that a greater attention should be given to a proper equipping of ice class ships for navigating in the polar areas. For example, Russia’s Norilsk Nickel
company uses Jeppesen’s dKart Ice Navigator on their ice-class vessels, which helps
them to significantly save costs for icebreaker assistance. New ice detection options
for high-resolution radars in the form of an ice radar overlay on an ECDIS can also
contribute to safer and more efficient navigation in ice fields (Oechslin 2014).
Another concern for many NSR users is ionospheric interference: electromagnetic
fields affecting radio signals on particular frequencies. These can affect positioning
systems, as well as communications in general. Recent research by the International
Association of Lighthouse Authorities (IALA) and the IMO confirmed that modern

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PCRC Working Paper No. 6 (March, 2017)

e-Navigation requires a more resilient positioning system. The Russian Arctic isfully covered by long range RNS ‘Chaika’ – the Russian version of LoranC – whichis considered as a reliable backup to GPS/GLONASS and included in the global
radio navigation plan of the IMO (Ibid.).
Map 11. SafetyNET and Navtex coverage zones in the NSR water area.

Source: http://www.hydro-state.ru/tsibm.html

It is interesting to note that Russian and foreign experts suggest some specificproposals for bilateral cooperation in the PC’s context. For example, somespecialists propose a number of the U.S.-Russian bilateral initiatives:


Commit resources to improve hydrographic information and update nauticalcharts.



Improve navigation safety information sharing between the two countries.



Improve emergency response capability, such as stationing a rescue tug nearareas of high risk or high value.

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PCRC Working Paper No. 6 (March, 2017)

Conduct oil spill response exercises to test the effectiveness of the Arctic Oil
Spill Agreement.

Institute communication and reporting requirements to better monitor vessel
traffic, reduce risk and ensure vessel compliance with appropriate Arctic
guidelines for safe navigation.



Cooperate on establishing voluntary navigation safety measures in the Bering
Strait (Rufe and Huntington 2014).
As far as the Phase 2 of the Polar Code is concerned the Russian experts

believe that the following issues might be addressed:


The PC should use a clearer and more precise terminology, particularly, withregard to the definitions of an icebreaker and different types of ice-class ships(Vasilyev et al. 2015: 11, 27).



Shipping emissions. Many scholars underline that marine vessels are a large
source of greenhouse gas and air pollutant emissions, including carbon dioxide(CO2), nitrogen and sulfur oxides (NO X and SOX), particulate matter (PM) andblack carbon (BC), which impact local air quality, human health, and the global
climate. If diversion of vessels from other international routes increases, thecurrent lack of the regional environmental requirements for vessels transiting
and operating in the Arctic may lead to an increasing impact on human healthfor Arctic communities and for the global climate. Additional emissions ofclimate-forcing pollutants such as black carbon and carbon dioxide combinedwith emissions of PM and NO X, which can be linked with respiratory healthissues, may place additional stress on the Arctic environment and Arctic
communities (Azzara et al. 2015; Bond et al. 2013: 5380-5552).

According to some accounts, a number of policies can mitigate shipping emissions
growth in the Arctic. Some experts believe that upholding the implementation dateof 0.5% fuel sulfur, rather than delaying to 2025 or later, would provide benefits
beginning in 2020 extending through the period of time when increases in vessel
traffic are actively occurring. Other specialists suggest that extending the North
American version of Emission Control Areas (ECAs) into Arctic waters would
provide additional air-quality and human health benefits associated with 0.1% sulfur
fuel and the use of Tier III engines for reduced NO X (instead of the current

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PCRC Working Paper No. 6 (March, 2017)

MARPOL Annex VI Tier II engine standards and 0.5% sulfur fuel) (Azzara andRutherford 2015: 4). They hope that regional benefits would be increased bycooperative multilateral action with other Arctic nations to extend the Arctic ECA tolarger areas of the Arctic. Many specialists suggest switching to lighter and cleaner
fuels such as distillates and LNG to further reduce emissions in the polar areas(Rosen 2015b).
Some experts insist that in the near future the Code should phase out ballast andgraywater discharge in the polar areas. Special facilities to receive, store andreprocess such water should be built in the Arctic ports, including the NSR(Fomin 2015: 29).



Other potential avenues for reducing Arctic emissions from vessels include
designations of Marine Protected Areas (MPA) under domestic conservation
frameworks, or possibly the designation of particularly sensitive sea areas(PSSA) under the IMO. The authors of these proposals believe that both options
would provide guidelines for limiting vessel operations within the areas andspecifying either speed limits or fuel requirements for operation, both of which
could reduce emissions (Azzara and Rutherford 2015: 4; Fomin 2015 29).



Some experts believe that IMO needs more input from indigenous peoples tofurther improve the Code (Rosen 2015a).

Environment protection
The Russian jurists believe that international environmental law is an important
integral component of the Arctic legal order (Dodin 2005; Gureev 2011; Kovalev
2003; Solntsev and Kopylov 2010; Vylegzhanin 2013: 38-46). The followinginternational agreements (and relevant clauses within them) are seen as the mostimportant ones:

The UN Convention on the Law of the Sea (1982)

Convention on biodiversity (1992)



International Convention for the Regulation of Whaling (1946)

Fish Stocks Agreement (1995)

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PCRC Working Paper No. 6 (March, 2017)The UNESCO Convention Concerning the Protection of the World Cultural andNatural Heritage (1972)Convention on the Conservation of Migratory Species of Wild Animals (1979)Convention on International Trade in Endangered Species of Wild Fauna andFlora (1973)

Convention on the Prevention of Marine Pollution by Dumping of Waste andOther Matters (1972)



International Convention on Oil Pollution Preparedness, Response andCooperation (1990)

The Agreement on Cooperation on Marine Oil Pollution Preparedness andResponse in the Arctic (2013)The IMO Polar Code and amendments to International Convention for the
Safety of Life at Sea (SOLAS) (Nov. 1, 2014)

These documents were signed by Moscow and integrated to the Russian national
legislation which (according to the Russian legal doctrine) is subordinated tointernational law. The following basic documents should be mentioned:

Federal Law on Environment Protection (2002)



Water Code of the Russian Federation (2006)

Federal Law on Internal Marine Waters and Territorial Sea of the RF (1998)

Federal Law on the Continental Shelf of the RF (1995)

Federal Law on Fauna (1995)



Russian Federal Law on the ratification of the Convention on biodiversity(1995)

Federal Law on the Northern Sea Route (2012)

This legislation aims to providing Russia’s environmental policies in the Arctic witha proper legal basis. The Russian sustainable development strategy has the following
priorities in the AZRF:

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PCRC Working Paper No. 6 (March, 2017)



Monitoring and assessment of the state of the environment in the ArcticPrevention and elimination of environmental pollution in the Arctic

Arctic marine environment protection

Biodiversity conservation in the ArcticClimate change impact assessment in the ArcticPrevention and elimination of ecological emergencies in the Arctic, including
those relating to climate change.

In accordance with the international practice, Russian law experts suggest two major
principles for environmental management – precautionary and sovereignty
approaches (Solntsev and Kopylov 2010: 84-85).
Precautionary approach/principle is based on the assumption that to protect theenvironment, where threats of serious or irreversible damage to it arise, the lack offull scientific certainty shall not be used as a reason for postponing cost -effective
measures to prevent environmental degradation. This principle is exemplified by the
Fish Stocks Agreement (1995) as well as by the regional FSAs (including the
Norwegian-Russian agreement on fisheries in the Barents Sea).
Sovereignty approach:Implies Moscow’s permanent sovereignty over natural resources (which is connected to the flag state jurisdiction on the high seas) in areas under Russia’
national jurisdiction as a coastal state.



These rights have to be distinguished according to the zones in which the natural
resources are found (i.e., the high seas; the territorial sea; or the EEZ) andwhether they are confined to one zone or are transboundary.



These rights include the right to possess, to use and to manage resources.



From these rights follows the right of a state to the exploration and exploitationof its natural resources and also the right to profits obtained from theseresources.

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It should be noted that Russian legal experts understand that the sovereignty
principle is not the absolute one; it has certain limitations. Particularly, thelimitations to the sovereignty principle include:The principle that permanent sovereignty must be exercised for the benefit ofnational development as well as the well-being of people;

The state has a duty to compensate foreign investors whose property has been
expropriated following legal proceedings;

The state has the duty to protect the interests of indigenous peoples;And, lastly that the state has the duty to cooperate (by way of notification andconsultation) in relation to shared natural resources.

As far as Russia’s practical steps in coping with environmental problems areconcerned a program to clean up the Franz Joseph Land Archipelago was launchedby the Russian government in 2011. According to then Prime Minister Vladimir
Putin, the government allocated 2.3 billion rubles (approximately USD 77 million)
to the program to clear the archipelago of barrels of waste oil by 2015 although somecritics see these activities as a cosmetic rather than systemic effort. Wrangel Island
and Russian villages on Spitsbergen were next in line. In addition, a comprehensive
analysis of the environment was planned in another seven major Arctic zones (Putin
2011).
As for the nuclear waste management a Federal Program on nuclear and radiologicalsafety for the period of 2008-2015 was adopted by the government. Among the mostsignificant results the following should be mentioned:

195 retired nuclear submarines were dismantled (97% of the total number);

98.8% of radioisotope thermoelectric generators were removed from service,
and 86% of them were dismantled;construction of centralized long-term storage facilities for spent nuclear fuelprevented potential overfill of the spent fuel storages at reactor sites;

53 hazardous nuclear facilities were decommissioned; 270 ha of contaminatedland were remediated;

36

PCRC Working Paper No. 6 (March, 2017)

open water storages of RW were closed down (Karachay at Mayak, B-2 at
Sibirsk chemical plant) (http://www.rosatom.ru/en/rosatom-group/backend/index.php?sphrase_id=11699).

In 2016, Russia has launched a large-scale program of removing nuclear waste fromthe former Soviet submarine base in Andreev Bay (Murmansk Region). All in all,there were 22,000 containers of spent fuel from nuclear submarines and icebreakers
stored in three storage tanks. There was also approximately 18,000 cubic metersof solid waste and 3,400 cubic meters of liquid radioactive waste, which, according
to Norwegian sources, are collectively as radioactive as 5,000 Hiroshima bombs(http://sputniknews.com/environment/20160610/1041126139/russia-norway-arcticnuclear-waste.html).
Russia has supported and vigorously participated in developing all the UN-related
environmental initiatives ranging from the IPCC report (2014) to the International
Maritime Organization’s Polar Code (2014-2015) and Paris agreement on climatechange (2015). Moscow has also actively participated in the Arctic Council’s
working and expert groups involved to environmental research and assessment.
While there was an obvious progress in Russia’s legislation on sustainable
environmental strategies there are still some practical concerns in this area:Some development plans are problematic from the environmental point of viewand not tuned with those of neighbors. The problematic issues include
development of hydrocarbon resources (Prirazlomnaya rig, Yamal LNG plant,
potential oil spills, etc.); terrestrial pollution; permafrost; ecological problems
pertaining to a potential increase in the NSR traffic; plans for floating nuclear
stations, etc.

Budget constrains led to some postponements in social and environmental
programs. For example, the problem of the so-called mono-towns or singleindustry cities remains unresolved and socio-economic and ecological situation
there is still difficult (e.g., Nikel, Monchegorsk, Norilsk, etc.).



There is no special environmental strategy/program for the AZRF (hence there isno funding/financial facility for this).

37

PCRC Working Paper No. 6 (March, 2017)

The sustainable environmental strategy is often understood in a rather
technocratic/instrumentalist

way

and

reducedtothespecific,

often

uncoordinated projects (e.g., nuclear waste treatment; ‘cleaning-up’ theenvironmental mess on the Arctic islands and archipelagos - Franz Joseph,Novaya Zemlya, Svalbard, Wrangel, etc.).
Indigenous peoples law:
The Russian legal experts are cognizant of the fact that there are serious social andeconomic problems relating to the indigenous peoples of Russia’s Far North,including the incompatibility of their traditional way of life with current economic
conditions, low competitiveness of traditional economic activities, rising disease
rates, a high infant mortality rate, and alcoholism. The unemployment rate among
Russia’s indigenous people has been estimated at between 30 and 60 per cent, whichis three to four times higher than that of other AZRF residents (Kochemasov 2009).
Life expectancy is 49 years, compared to over 60 years for Russia on average.
Moscow’s policies official aim to foster favorable conditions for the sustainable
development of the indigenous peoples. For example, in 2009 a Concept of
Sustainable Development of the Small Indigenous Peoples of the North, Siberia andthe Far East was approved by the Russian government. Among other things, theConcept set a task to raise the quality of life to the average in Russia and by halve
the infant mortality rate by 2025 compared to 2007 levels. However, these policies
have still not come close to their targets and remain subject for harsh criticism fromthe indigenous peoples themselves and human rights organizations.
The dispute over Russia’s policy toward indigenous peoples intensified with theRussian Ministry of Justice’s 2012 ruling to force Russia’s leading indigenous
peoples’ organization RAIPON to re-register. The directive from the ministry wasreceived a month after RAIPON submitted the report to the UN Human Rights
Council criticizing the Russian authorities for neglecting the rights and problems ofindigenous people. The tug-of-war between the ministry and RAIPON has resulted
in the change of organization’s leadership which became much more loyal to the
Kremlin.
The critics of Moscow’s policies on the indigenous peoples believe that Russia
should endorse the United Nations Declaration on the Rights of Indigenous Peoples

38

PCRC Working Paper No. 6 (March, 2017)(UNDRIP) and respect, protect and fulfill the rights of indigenous peoples set out
therein. Furthermore, Moscow should ratify International Labor Organization (ILO)
Convention 169 on Indigenous and Tribal Peoples and undertake to implement its
provisions in its national legislation. According to human rights activists, Russia
should recognize indigenous peoples’ own customary law as a source of rights,
including land rights. As a matter of the utmost urgency, the activists maintain,
Russia should take immediate and effective measures to enable the establishment offederal-level Territories of Traditional Nature Use (TTNU), in a viable manner,giving indigenous peoples maximum control over these territories, in recognition of
their inalienable rights to land and resources and their right to adequate fo od (Rohr2014, 61). This will inevitably require the revision of Russia’s Land Code which isseen by indigenous peoples and their proponents as a discriminatory and favorable
for extractive industries.
The specific results of the Concept-2009 implementation remain unclear. While in
the Yamal-Nenets Autonomous Area the indigenous peoples’ economy (reindeer
herding) is booming, social programmes are being effectively implemented andmajor conflicts with oil and gas companies are being avoided, the situation i n otherregions, such as Khanty-Mansi, Nenets, Korayk, Chukotka Autonomous Areas israther difficult.
Arms control regimes
Given the fact that the ‘hard’ security situation in the Arctic is relatively benign,serious threats and challenges such as WMD (weapons of mass destruction)
proliferation, large-scale terrorist attacks or military conflicts are hardly probable in
the region.
However, it should be noted that the Arctic lacks a special arms control regime.
There were only two international arms control regimes applicable to the area: The
first regime was a system of the U.S.-Soviet/Russian strategic arms control andreduction agreements. Particularly, these agreements regulate a number of launchers
and nuclear warheads on the Russian strategic submarines based on the Kola
Peninsula.
The second arms control regime was the Conventional Forces in Europe (CFE)
treaty that was concluded between NATO and the Warsaw Pact in 1990 and adapted

39

PCRC Working Paper No. 6 (March, 2017)

in 1999 under the aegis of the OSCE. However, the Baltic States refused to abide by
the treaty, because it was concluded when they were still part of the USSR. Finlandand Sweden have also refused to sign the treaty referring to their neutral (now non aligned) status. In addition, none of the Western signatories of the 1999 Adaptation
Treaty ratified it. As a result, Russia suspended its participation in the treaty in 2007.
Moscow, however, hopes that the CFE process can be reanimated in the foreseeable
future. Drawing lessons from the past negative experiences Russia believes that
there are two preconditions for resumption and successful continuation of the CFE
process:A new treaty should be fully ratified by all signatories andAll countries of the Arctic region should partake in this arms control regime.

It should also be noted that the CFE treaty was applicable only to land forces. Navalarmaments were (and are) mainly excluded from any arms control regime. Unilateralmeasures were taken by some countries (including Russia) in the 1990s for the
reduction of naval armaments and naval activities, but they related only to obsolete
weapons and cannot be a substitute for a real arms control regime. According tosome assessments, the basic hesitancy of the EU and NATO nations regarding naval
armament limitations in the High North seems to be that if you initiate naval arms
control in one of the seas within their zone of responsibility, this could lead torestrictions on maritime flexibility in other seas as well. However, these parties
should initiate negotiations on naval arms control if they are serious about further
improvement of the security environment in the region.
Let me note, with concern, that the Arctic region currently has no confidence- andsecurity-building measures regime – a gap that should be filled with great urgency
because CSBMs development is a very important element of any regional security
system. The regional CSBMs could be based first and foremost on the 1994 OSCE
Vienna Document which proved to be efficient in Europe. In addition, the following
measures could be suggested:Given the specifics of the region, CSMBs should cover not only land but also
naval military activities.

40

PCRC Working Paper No. 6 (March, 2017)

Along with spatial limitations, temporal limitations on Russian, NATO and EU
military activities in the region could also be established.



Military-to-military contacts, joint exercises, exchanges and visits should befurther encouraged.



The countries of the region should intensify exchange information on theirmilitary doctrines, defense budgets as well as on major arms export/importprograms.



Not only regional but also bilateral CSBMs should be further encouraged.



An idea of establishing a limited nuclear weapon-free zone in the Arctic (say, inCentral Arctic) can be discussed. For example, Russia and U.S. could consider
Canada’s initiative to ban nuclear weapons in the region. Russia has responded
positively to this initiative (Moscow raised a similar idea under Mikhail
Gorbachev), but has questions about the geographical scope of such a zone.
Russia supports making the Arctic a nuclear weapon-free zone, provided thiswould not affect the Kola Peninsula which is a home to two-thirds of theRussian strategic nuclear submarines.

Moscow also considers the field of civil protection as a promising venue for theArctic regional cooperation. For example, according to the EU-Russia 2005 roadmap
to the Common Space on External Security, one of the strategic objectives ofBrussels–Moscow cooperation is to strengthen EU–Russia dialogue on promoting
common ability to respond to disasters and emergencies, specifically including crisis
management situations (Commission of the European Communities 2005). The
positive experience accumulated in this area could be replicated to the Arctic
regional cooperation. The priority areas for such cooperation could be as follows:Strengthening coordination of the Arctic states’ agencies responsible for civil
protection. This requires hard work on implementing the existing arrangements
between the Operations Centre of Russia’s EMERCOM (Ministry for
Emergency Situations) and its foreign counterparts. More specifically this means
exchanging contact details for keeping in touch on a 24-hour basis; exchanging
templates for early warnings and requests/offers for assistance; exchanging
information during an emergency, where appropriate; conducting communications exercises on an agreed basis; and enabling operation staff to spend

41

PCRC Working Paper No. 6 (March, 2017)

some time in the operational center of the other partner’s service in order to gain
practical experience.
Exchanging information on lessons learnt from terrorist attacks.

Inviting experts, on a case-by-case basis, to specific technical workshops andsymposia on civil protection issues.

Inviting observers, on a case-by-case basis, to specific exercises organized by
the partner countries.



Facilitating mutual assistance in search and rescue operations for submarines,
ships and aircraft in emergency situations.

Hopefully, a steady implementation of this rather ambitious agenda could
substantially change the security environment in the Arctic region in a positive way.

Conclusions
Various regimes governing the Arctic have proliferated into a vast, complex networkof a regional legal order. This nexus of hard and soft law, rules, regulations,principles and norms regulates the activities of national governments in the High
North, ranging from efforts to ensure peaceful uses of the Arctic Ocean, freedom of
the seas, and the conservation of fisheries and other marine resources to prohibitions
against marine pollution and dumping to regulations that ensure safe shipping,carriage and navigation on the high seas. What makes these developments especially
impressive is that the bulk of Polar law has been created during the last three -four
decades.
Reflecting on this rapid evolution of contemporary Polar law the Russianinternational law community posits some general conclusions:First, Polar law has developed mostly on an ad hoc basis. This law has emerged
largely in reaction to some accident or perceived crisis situation (especially in theenvironmental area).
Second, Polar has evolved piecemeal during the past several decades. The available
law has come more as patchwork obligations, rather than as a carefully premeditated,

42

PCRC Working Paper No. 6 (March, 2017)

internationally-coordinated effort aimed at constructing a coherent legal regime forgoverning the Arctic. The fact remains that presently the 1982 UNCLOS serves as
the hub of the contemporary law of the Arctic legal regime, around which, a corpus
of international law for regulating various High North-related issues has evolved inbroad scope and is firmly in place.
Third, implementing, sustaining, and adjusting Polar law in coming decades will not
be easier. Even so, the effectiveness of Polar law rests on the genuine commitment
by national governments. Governments make international law related to the Arctic,
and governments must enforce that law against nationals who violate them. In the
final analysis, then, blame for debilitating problems of the region, such as, forexample, degradation of the marine environment in the forthcoming future will not
lie in weak law. Most of the Arctic legal regimes are prudent and adequate, and moststates acknowledge the application of most of these rules most of the time. Instead,the blame will accrue to those governments that fail to comply with that law, or to
enforce it when necessary.
Fourth, the Russian international jurists believe that the following legal problems
should be given priority attention:
Delimitation of maritime spaces and definition of the limits of the continental
shelf in the Arctic.

The legal status of the Arctic maritime routes.



Implementation of the Polar Code.



Improvement and proper implementation of the international environmental law
in the Far North.

Protection of the indigenous peoples of the North.

Establishment of a proper arms control and CSBM regime in the region.

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PCRC Working Paper No. 6 (March, 2017)

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