Environmental Regulation in the Russian Arctic

(By R. Douglas Brubaker; INSROP Working Paper No. 79 – 1997, IV.3.1)

In Working Paper No. 79, "Environmental Regulation in the Russian Arctic," recommendations are forwarded corresponding to and closely related to those forwarded in the Working Paper, No. 52, "Jurisdiction Governing the Straits in Russian Arctic Waters." In order to increase world order and reduce tension, a law of the sea Conference should be convened, including delegations from the Foreign Ministries of the Arctic littoral States and including non littoral Scandinavian States. The object would be to resolve those issues exhibiting most dissension between the Russian Arctic regime and LOSC Article 234, coastal State jurisdiction in ice-covered areas. These issues are the possible application of the Russian regime to the high seas, application to public vessels, mandatory and discriminatory fees, and interface with the international straits regime. Surface passage by public vessels is exempt under LOSC Article 236, yet could still be agreed at the Conference to be made subject to the vague condition of compliance with LOSC environmental provisions, if operational capabilities are not impaired and if "reasonable and practical." The sensitive issue of submarine passage need not be mentioned. At the same time especially Russian military activities at sea, but also the U.S., might be influenced in a more environmentally positive light, building upon the trilateral military agreement for the Kara Sea between Russia, Norway and the U.S. It is maintained resolving several of the Arctic environmental issues closely tied to the jurisdictional issues is a more satisfactory and stable solution over time than physically "testing" the Russian regime, similar to the U.S. Freedom of Navigation program (FON) and possibly other State practice. As a representative from the U.S. Navy notes, negotiated agreements are much more stable in the long run than "unilateral assertions of rights premised on the process of claim and counterclaim of customary international law."

R. Douglas Brubaker, 1997, Environmental Regulation in the Russian Arctic, INSROP.©