China violates key norms and provisions of the international law of the sea and at the same time advocates its peremptory application to the Arctic. Meanwhile, the USA cannot agree with the navigation guidelines established by Russia with respect to the Northern Sea Route. For Russia, this is a matter of its own security. Will the US agree to some kind of Code of Conduct for the Arctic? Is Moscow ready to support the Arctic ambitions of the Middle Kingdom? Pavel Gudev, a leading researcher at IMEMO RAS, writes about this in an article he specially prepared for the seminar which was held on June 10 by the Valdai Discussion Club and the HSE Faculty of World Economy and International Affairs, which was devoted to international security and cooperation in the Arctic.
China violates key norms and provisions of the international law of the sea and at the same time advocates its peremptory application to the Arctic. Meanwhile, the USA cannot agree with the navigation guidelines established by Russia with respect to the Northern Sea Route. For Russia, this is a matter of its own security. Will the US agree to some kind of “Code of Conduct” for the Arctic? Is Moscow ready to support the Arctic ambitions of the Middle Kingdom? Pavel Gudev, a leading researcher at IMEMO RAS, writes about this in an article he specially prepared for the seminar which was held on June 10 by the Valdai Discussion Club and the HSE Faculty of World Economy and International Affairs, which was devoted to international security and cooperation in the Arctic.
In recent US conceptual, strategic and doctrinal documents, Russia and China are regarded as two key threats, as a joint challenge to the national security of the United States in the Arctic. Russia has traditionally been considered as a threat due to the active modernisation of its military and naval capabilities in the region; it is accused of militarising the Arctic as a whole. China, as the United States’ emerging rival on the global stage, is extremely interested in access to Arctic transport opportunities and resources; moreover, Beijing claims to be a leader among states from outside the region which are interested in accessing and developing the Arctic. It is obvious that for China, the Arctic is becoming a strategically important marine region, which is a guarantee of its further socio-economic development, as well as the strengthening of its international political status. However, a reasonable question arises: Do Russia and China share interests in the Arctic? Is Moscow ready to support the Arctic ambitions of the Middle Kingdom in their entirety?
I would like to recall that China continues to be the most obvious example of a state that violates key norms and provisions of international maritime law, in particular, the 1982 UN Convention on the Law of the Sea (UNCLOS), especially in the South China Sea. The reasons for this are simple: for Beijing, the problem of ensuring national security in adjacent marine areas has a much higher priority than compliance with conventional norms; moreover, China’s attitude towards international law, as a product of Western civilisation, is often characterised by scepticism.
At the same time, China advocates the peremptory application of the norms and provisions of UNCLOS toward the Arctic, including with respect to the Russian Federation. This requirement is also understandable: it is the 1982 Convention that gives third countries certain rights and powers to use the Arctic and its resources, and China wants to become the main beneficiary of this process. The position of the Russian Federation is somewhat different: UNCLOS is a key legal regulator, but the role of the national legislation of the Arctic states is greater than anywhere else. And the latter cannot play a subordinate role with respect to the 1982 Convention, since the legal regulatory framework governing interaction in the Arctic as a whole was developed long before its adoption.
China, for example, in its White Paper on the Arctic, expressed support for the principle of freedom of navigation in the Arctic region, despite the fact that it restricts this freedom in the South China Sea. This presents a paradoxical picture: Beijing wants to take advantage of all the entitlements provided by UNCLOS, but does not consider itself obligated to abide by these same norms in relation to other states. Russia, to some extent, restricts freedom of navigation along the Northern Sea Route, based both on the provisions of Art. 234 (“Ice-covered areas”) of the 1982 Convention, as well as on national legislation developed during the Soviet era, which provides the historical legal foundations for shipping regulation in the Arctic, as well as the universal tasks of protecting the marine environment and its biodiversity from pollution from ships.
The problem of the legal status of the Northern Sea Route has perhaps been the main irritant in Russian-American relations for many decades. The United States, although not a party to UNCLOS, is the main advocate of the principle of freedom of navigation in all areas of the oceans. This concern of the USA can be explained both in terms of economic interests and in terms of military strategy: 80% of world trade takes place at sea; and it is possible to transfer US forces nearly anywhere abroad via the oceans. The United States, of course, opposes the Russian order of passage along the routes of the Northern Sea Route, and considers the Russian Arctic straits to be international ones, insisting on the priority of the international regulation of shipping (within the framework of the International Maritime Organisation, IMO) over Russian law.
Frankly speaking, for Russia the national level of control over shipping along the Northern Sea Route is, of course, to a certain extent a matter of its own security, including environmental safety. However, I would like to note that the emergence of new types of threats in the Arctic in the future (maritime terrorism, piracy, drug trafficking, illegal migration, the transport of weapons of mass destruction, etc.) in principle suggests that properly, the national level of regulation of certain types of maritime activities is able to withstand these challenges, which is certainly in the interests of all states in the Arctic region.
The United States, of course, cannot agree with the shipping regime established by Russia. The reason for the disagreement is the danger of legal precedent being set, when other states, primarily bordering international straits, decide to act in the same way as the Russian Federation. For this reason, the US Navy command and the Coast Guard constantly announce the need for operations to protect freedom of navigation in the Russian Arctic. So far, given the absence of full-fledged icebreaking capabilities, this has been quite problematic for the USA, since in the event of an emergency it will be necessary to turn to Russia for help. However, as the composition of the US icebreaker fleet expands, the likelihood of such steps will increase, which in turn can lead to negative consequences and put the two countries on the brink of a local armed conflict.
In relations with the United States, the well-known “agree to disagree” formula could be applied, which would allow Washington not to deviate from its legal assessments regarding the Northern Sea Route and other Russian Arctic waters, but agree to maintain the status quo in order to preserve the Arctic as a zone of peace and stability, which, of course, would meet the interests of the entire world community.
It would be possible to initiate a discussion on the development and adoption of some kind of a “Code of Conduct” in relation to the Arctic, which would consolidate a common understanding of what types of naval activities in the region (including in various sea zones) can be considered acceptable by the parties and, conversely, what could lead to a security threat or a local military clash.
In order to de-escalate tensions, it seems appropriate to initiate, in the coming years, both the updating and development of a number of bilateral agreements that would cover security issues, and the prevention of any kind of armed conflict between the US and the Russian Federation in the Arctic. Such a model of bilateral interaction between our countries was developed during the Cold War, and included agreements such as the agreement on the prevention of incidents in the open sea and in the airspace above it (1972 US-USSR Incidents at Sea agreement) and the Prevention of Dangerous Military Activities Agreement (1989). These documents continue to be in force today, but they need to be completely modernised. Furthermore, both sides should reach an understanding that they are fully applicable to the Arctic region.
Russia and the USA have something to discuss regarding the Arctic. Moreover, today the United States plays an important role here – the role of a state which forms the so-called Arctic agenda. In fact, many of the most important projects for managing the spaces and resources of the Arctic Ocean, supported by all Arctic countries including the Russian Federation, were initiated by Washington. This includes the introduction of a moratorium on fisheries in the central Arctic, followed by the possible creation of a regional organisation for the regulation of fishing in the Arctic, and the conclusion of an agreement on the control of shipping through the Bering Strait, which has been approved by the International Maritime Organisation. Now, for example, the United States is lobbying for the creation of a new international organisation that would regulate scientific marine research in the Arctic.
The latest initiative is a consciously chosen course to remove from the competence of the Arctic Council some of the powers that it could theoretically be vested with, as a key international forum on the Arctic issue. The Arctic Council was initially focused on solving environmental issues, and protecting and preserving the marine environment and its biodiversity. The reason for such scepticism regarding the Arctic Council is quite clear: the Trump administration’s radical refusal to participate in the climate agenda and the US withdrawal from the Paris climate agreements does not correlate with the Council’s ever-increasing attention towards this area.
Prioritising the protection of national interests is exactly what will move the United States to pursue a policy of, if not destruction, then reducing the influence of various international structures in those areas where Washington would like to resolve specific issues separately, and not as part of a wider international consensus. The Arctic Council, where more and more non-regional states will apply for observer status, has the potential to turn into a kind of discussion club for the maximum number of interested parties, which erodes the exclusive format of cooperation between the Arctic countries, and the United States does not like this.
Therefore, the inclusion of issues related to military security in the competence of the Arctic Council is an extremely controversial proposal. Such discussion platforms should exist, but will it be right to do all this in a way that’s open to others, especially to countries with observer status? Moreover, do the Russian Federation or the United States need their military development plans to be discussed with or in front of other interested states, such as China? Finally, could this lead to NATO, like the European Union, seeking to obtain observer status in the Arctic Council? Russia, for its part, will strongly oppose NATO's presence or expansion in the Arctic.