Soviet Sovereignty in the Arctic Seas

Camil Simard

The question of Soviet sovereign rights in the Arctic has always constituted an ambiguous issue. Although the adoption of the so-called "sector theory" has given the Soviet Union a pseudo-legal basis for the acquisition of sovereignty over lands and islands within its arctic sector, the question of Soviet sovereign rights over arctic waters has long remained uncertain.

 The development of a new international law of the sea has provided the world community with a revised legal framework for "the governance and management of the world's oceans, including the Arctic Ocean".¹ Frequently cited in Soviet legal doctrine, this "charter of the sea"-an impressive document of 320 articles and nine appendices-provides a legal basis for regulation of all aspects of state activity related to exploration, utilization, and exploitation of the maritime spaces and their resources. The U.S.S.R. is the largest maritime power to have signed the 1982 Convention on the Law of the Sea, and, although this "charter" is still not in force, many Soviet jurists have expressed the view that a large number of its provisions have already acquired broad legal and political recognition. The various functional and jurisdictional regimes elaborated in the 1982 convention reflect a trend toward increasing coastal-state control over maritime areas and ocean resources. Thus, they have important implications for the circumpolar states, particularly the Soviet Union.

There is no doubt that Soviet stakes in the Arctic, in terms of security and resources, are high. Economic and strategic interests have constituted, and still constitute, the major factors in the shaping of Soviet legal policy in its arctic region. A glance at the map reveals the enormity of the U.S.S.R.'s maritime arctic frontier: a 10 000-kilometre coastline, stretching from the White Sea to the Bering Strait, encompasses five adjacent seas (Barents, Kara, Laptev, East Siberian, and Chukchi), delimited from each other by groups of islands, whose total area is equivalent to almost half the Arctic Ocean. Indeed, in these waters lies the world's largest continental shelf¾ 4.3 million square kilometres in area.

 The tremendous amount of energy and resources invested by the Soviet Union in the Arctic is ample evidence of the economic and strategic significance of the region. The Northern Sea Route, linking Murmansk to Vladivostok across the arctic seas and along the Soviet coast, represents the shortest sea lane between the European and Far Eastern regions of the U.S.S.R. Indeed, owing to a system of internal rivers, the Northern Sea Route provides vital access to the resources of northern Siberia.

 In recent years, the long-term prospects for exploitation of the immense hydrocarbon and gas reserves in the Soviet arctic offshore area have focused attention on the region. However, Soviet interests in the Far North are unquestionably more a function of the U.S.S.R.'s "global engagement" and nuclear competition with the United States.² Geographic factors and the development of weapons technology have enhanced the strategic significance of the Barents Seal/Kola Peninsula area. As the Soviets would probably point out, the U.S.S.R.'s military presence in the Arctic constitutes an inherent component of their concept of "equality and mutual security", including the principle of nuclear parity, in superpower relations.

A New Soviet View

 Since the "sector theory" was first formulated, the legal regime in the Arctic has undergone significant development. This evolution is the result of a series of concomitant factors, such as the creation and codification of the international law of the sea, the development of arctic states' views on the region, and the increasing importance of the northern region in terms of economic and strategic considerations. In this context, the Soviet Union has elaborated a new legal regime in the maritime Arctic aimed at protecting its "assets" in the Far North.

Recently, Soviet authors have expressed the view that the contemporary legal regime of the arctic maritime spaces is regulated by the existing norms of international law and by national laws, enacted by arctic states in accordance with those norms.³ This position represents a significant departure from the traditional Soviet view, which has emphasized the particular character of the waters of the Soviet arctic sector (especially the Kara, Laptev, and East Siberian seas) and held them to be historic internal waters of the U.S.S.R. Recent Soviet legal sources have reflected the Soviet state practice concerning sovereign rights in arctic waters. In fact, by integrating various dispositions of the 1982 Law of the Sea convention into internal law, the Soviet Union has extended its coastal-state jurisdiction over a relatively large portion of the Arctic Ocean and has given itself important powers for the regulation of various activities in these waters.

In 1985, the U.S.S.R. drew straight baselines along its arctic coastline and around the three archipelagos (Novaya Zemlya, Severnaya Zemlya, and Novosibirskiye Ostrova) crossed by the Northeast Passage. This represented an important stage in the process of "territorialization" of Soviet arctic waters, since the breadth of the Soviet Union's territorial sea, exclusive economic zone, and continental shelf in these waters would be, henceforth, measured from these baselines. Indeed, by enclosing the waters of the straits of these archipelagos, the decree introduced a new perspective on the question of the legal status of the Northern Sea Route.

 These baselines were adopted in accordance with a 1982 law, "On the State Boundary of the U.S.S.R." However, as Professor Donat Pharand of the University of Ottawa has pointed out, this disposition does not repeat the conditions for the establishment of straight baselines determined in the 1951 Anglo-Norwegian Fisheries case, to wit, where a coast is deeply indented or is bordered by a group of islands at proximity to the coast. This concept was subsequently incorporated in the 1958 Geneva Convention on the Territorial Sea, which the Soviet Union has ratified, and in the 1971 amendment of the 1960s version of the law on the state boundary. However, in the 1982 boundary law, it is noted only that the baselines must join appropriate points.⁴ This would appear to be tacit acknowledgement of the fact that the Soviet argument for straight baselines is problematical and may explain why so little publicity accompanied the adoption of the 1985 Soviet decree.

In international law, the state exercises sovereignty over its internal waters and territorial sea, reserving, in the latter case, the right of innocent passage to foreign ships. The 1982 boundary law, repeating various dispositions of the Law of the Sea convention and some provisions of its 1960 version, reaffirms the 12-mile-limit territorial sea. It also defines the internal waters of the U.S.S.R., establishes a regime of innocent passage for foreign ships, and sets out numerous powers relative to the protection of the Soviet frontiers. This law is of primary importance in the determination of the legal regime of the Northeast Passage, as it provides for the establishment of a 12-mile-limit territorial sea "computed from the lowest ebb-tide line both on mainland and on islands...or from straight baselines joining appropriate points". At Article 6, various bodies of water are designated internal waters of the U.S.S.R.: "waters of bays, inlets, coves...seas and straits, historically belonging to the U.S.S.R." and "sea waters on the landward side of straight baselines adopted to compute the breadth of the territorial waters (territorial sea) of the U.S.S.R.". The law does not specifically name the bodies of water considered historic waters. As stated earlier, Soviet jurists have always considered the Kara, Laptev, and East Siberian seas as waters historically belonging to the Soviet Union. Some have categorized the Sannikov and Dmitriy Laptev straits, connecting the Laptev and East Siberian seas, as historic waters. However, Soviet authorities have always demonstrated prudence on the question of historic waters. Concerning arctic waters, only the White Sea, Cheshskaya Bay in the Barents Sea, and Baidaratskaya Bay in the Kara Sea have been decreed waters historically belonging to the U.S.S.R.

Internal Waters

 By enclosing the waters of the archipelagos crossed by the Northern Sea Route, the Soviet decree makes the straits internal waters. In customary international law, waters enclosed by baselines are assimilated to internal waters without right of innocent passage for foreign ships. However, the 1958 convention on the territorial sea, to which the Soviet Union is a signatory, stipulates that the right of innocent passage for foreign ships continues to apply to internal waters that, before being enclosed by straight baselines, were territorial waters or part of the high seas. Article 13 of the law on the state boundary mentions that "foreign non-military vessels shall enjoy the right of innocent passage through the territorial waters of the U.S.S.R. in accordance with U.S.S.R. legislation...and in effecting innocent passage, follow the ordinary navigational course or the course recommended by competent Soviet agencies." In this sense, the innocent passage of foreign non-military vessels is submitted to various rules established by the Soviet agency that administers the Northern Sea Route. Since 1965, ice-breaker assistance and pilotage has been obligatory for all ships traversing the Vil'kitskiy, Shokal'skiy, Dmitriy Laptev, and Sannikov straits. From the Soviet point of view, the Northern Sea Route does not constitute an ordinary navigational course. Soviet authors have always emphasized the national character of the route, the absence of foreign navigation, and its significance to the economy and defence of the U.S.S.R. In fact, in his Murmansk speech of October 1987, Mikhail Gorbachev expressed clearly the Soviet point of view toward the status of the Northern Sea Route: "I think that, depending on how the normalization of international relations will go, we could open the Northern Sea Route for foreign ships under Soviet ice-breaker escorts."⁵

 In the case of foreign warships, innocent passage through territorial waters is provided for in the "Rules for Navigation and Sojourn of Foreign Warships in the Territorial Waters and Internal Waters and Ports of the U.S.S.R.". This normative act, adopted in 1983 in accordance with Article 13 of the 1982 law on the state boundary, contains important dispositions for the regulation of foreign warships in Soviet territory. Unlike the 1982 Law of the Sea convention, which defines passage as the fact of navigating in the territorial waters in order to enter the internal sea, the 1983 Soviet rules have established two different regimes of navigation for foreign warships: the need for preliminary permission from Soviet authorities if navigation implies entrance into the internal waters of the U.S.S.R., and a right of innocent passage for foreign warships traversing only the territorial waters of the U.S.S.R.⁶ In the latter case, Article 12 of the rules stipulates that the innocent passage of foreign warships through the territorial waters of the U.S.SR. is permitted on routes normally used for international navigation in the Baltic Sea, the Sea of Okhotsk, and the Sea of Japan. Therefore, on the basis of the 1982 Convention, which stipulates the right of the coastal state to establish corridors of navigation in territorial waters required for the security of navigation, the Soviet Union has been able to circumscribe the right of innocent passage for foreign ships within its arctic territorial waters.

Economic Zone

The institution of the exclusive economic zone (EEZ) constitutes, without question, the "cornerstone" of the 1982 Law of the Sea convention. This new concept reflects the compromise that emerged during the third United Nations Conference on the Law of the Sea on the issue of coastal states' access to ocean resources. The dispositions in Part V of the Law of the Sea convention, while providing to coastal states sovereign rights over biological and mineral resources, and national jurisdiction over marine activities within a 200-mile zone, preserve the basic freedoms of the high seas within this area. In accordance with the 1982 convention, the Soviet Union adopted a decree, "On the Economic Zone of the U.S.S.R." in 1984. This decree replaced the 1976-77 provisional measures on a 200-mile fishery zone and constituted the first national act to integrate the dispositions concerning the EEZ from the 1982 Law of the Sea convention. Thus, the Soviet Union established a 200-mile EEZ, including the areas around islands belonging to the Soviet Union, computed from the same baselines as the territorial waters. Through the drawing of these baselines, the Soviet EEZ incorporated a larger portion of the Arctic Ocean. including a 200-mile zone around Franz Josef Land.

 Within its EEZ, the Soviets exercise: sovereign rights for the purposes of exploration, exploitation, and conservation of natural resources (living and non-living) on the seabed, in the subsoil, and in superadjacent waters, as well as for the management of these resources; sovereign rights with respect to other types of activity regarding the economic exploration and exploitation of the said zone; and jurisdiction in relation to the construction and use of artificial islands, the conduct of scientific research, and the preservation of the economic environment. For this purpose, the Soviet Union has provided itself with important dispositions regulating numerous marine activities within its EEZ. Without enumerating all the normative acts adopted in accordance with the 1984 decree, it should be noted that the Soviets have enacted dispositions related to the exclusive conservation and utilization of living and non-living resources within their 200-mile EEZ. Like other countries, the Soviet Union maintains exclusive rights to erect, permit, and regulate the construction, exploitation, and use of artificial islands or any kind of installations and structures within its EEZ. Marine scientific research in the EEZ is to be conducted in accordance with the 1985 Soviet law, "Statute on the Procedure for Conducting Marine Scientific Research in the Economic Zone of the U.S.S.R." and the existing norms of international law.

Concerning the protection of the marine environment, the 1984 Soviet decree on the EEZ stipulates that special measures can be enacted to preserve maritime areas, with ecological and oceanographic particularities, against pollution. In March of 1984, the Soviets adopted the "Edict on Intensifying Nature Protection in Areas of the Far North and Marine Areas Adjacent to the Northern Coast of the U.S.S.R.". This legislation established important measures concerning protection of the environment and the prevention of pollution in the entire Soviet Arctic. Article 3 of this edict provides for the adoption of special navigational rules "in the marine areas adjacent to the

 Northern Coast of the U.S.S.R., where particularly severe climatic conditions and ice create hindrances or increase danger for shipping and pollution of the marine environment that could cause grave harm to the ecological balance or irreversibly disturb it..."

 Although it has been said that this edict has also been adopted in accordance with Article 234 of the 1982 convention, which applies to ice-covered zones, the application of the edict is not only restricted to the 200-mile EEZ. In fact, it is stipulated that the edict applies to the Soviet islands located in the Arctic Ocean, the islands of the Bering Sea and the Sea of Okhotsk, the arctic seas adjacent to the Soviet coast, other territories of the U.S.S.R. considered by the Council of Ministers as regions of the High North, and maritime spaces adjacent to the Soviet arctic coast, the position of which influences the ecological well-being of the Soviet North.

Continental Shelf

 The question of the legal status of the Siberian continental shelf, lying in the arctic seas, is of particular interest due to its potential economic significance. In international law, sovereignty over land territories automatically confers exclusive jurisdiction over mineral resources on the continental shelf, the latter being an extension of the land territory of the coastal state.⁷ The Soviet Union, in conformity with the 1958 Geneva Convention on the Continental Shelf, enacted the edict, "On the Continental Shelf of the U.S.S.R." in 1968. Article I states that the Soviet Union exercises exclusive sovereign rights over its continental shelf lying beyond the outer limit of Soviet territorial waters, for the purposes of exploring and exploiting its mineral resources. As stated in this edict, the natural resources of the seabed are the state property of the U.S.S.R. The exploration and exploitation of these resources, and any research activities on the continental shelf, are conducted according to rules based on this edict. Foreign individuals and companies are prohibited from carrying out research, exploration, exploitation of natural resources, and other work on the continental shelf of the U.S.S.R. unless permission has been granted.

Although the 1982 Law of the Sea convention contains new dispositions concerning the seaward limit of the continental shelf, these have yet to be incorporated into Soviet legislation. The 1968 edict fixes the seaward boundary of the Soviet continental shelf, beyond the outer limit of the Soviet territorial sea, as such: up to a depth of 200 metres or "where the depth of the superadjacent waters admits of the exploitation of the natural resources of these areas". It appears that the provisions of the 1968 edict better serve Soviet interests, taking into consideration the very shallow waters of the arctic seas and uncertainty with regard to a possible extension of the Siberian Shelf.

Extending Control

Overall, the Soviet state has managed to profit from the emerging international law of the sea to build a legal framework reflecting its interests in the Arctic. In fact, the increasing process of "territorialization", which was contingent to the emergence of a new legal order of the sea, has given the Soviet Union, as well as other circumpolar states, the opportunity to consolidate control over a relatively large portion of the arctic waters. On one point, the latest Soviet legislation demonstrates that the terms "international law" and "Arctic Ocean" are no more incompatible. The arctic states have always refrained from encouraging any process of internationalization of the region. However, in view of the important progress achieved in the sphere of international law of the sea, it seems that the Soviet Union-like Canada-is probably in no position to re-establish its entire maritime "sphere of influence" on the basis of such anachronisms as the concept of historic waters or the sector theory.

The uncertain future of the 1982 Law of the Sea convention may raise some points for debate concerning the Soviet law of the sea policy vis-a-vis the Arctic Ocean. Indeed, the Soviet Union, in extending its jurisdiction over arctic waters, has been submitted to the same pattern of conflicts of interests between adjacent and opposite states over the delimitation of the maritime zones and rights to ocean resources.⁸ And while Canada has experienced such problems with the United States, the issue concerning the delimitation of the EEZ and the continental shelf between Norway and the U.S.S.R. in the Barents Sea has injected another conflicting element into an area already saturated by economic, political, and strategic concerns.

Notes

Camil Simard is a graduate student in the Institute of Soviet and East European Studies at Carleton University in Ottawa.