Once considered impassable due to icebound conditions of the High Arctic, receding ice attributed to climate change and projections of ice-free polar seasons in coming decades may soon make the Northeast Passage a commercially viable conduit for seafaring traffic. A major stretch of this waterway atop Russia, straddling Eurasia from Providence Bay to Murmansk, passes through important geographic bottlenecks that scantily ever have been traversed by non-Russian ships, until most recently. This stretch, referred to as the Northern Sea Route, is claimed by Russia as historic waters, making its use subject to Russia’s complete sovereign decisions. The United States regards the Route as an international strait connecting two high seas, making transit free and open to all ships, military or commercial, in accordance with traditional High Seas freedoms and a newer right of transit passage. This article considers the prospect of a coming clash in the waters of the High Arctic over the legal status of the Northern Sea Route. Through analogous application of the Roman law principle of uti possidetis juris, a principle adapted to international law, but with serious criticism, this article argues that Russia’s claim of sovereign control over the Route finds legal support but is pragmatically and strategically weak. Existing lacunae in the governing international law of the sea nevertheless make consideration of the principle valuable, particularly components of the principle that emphasise factual circumstances, called effectivités, which support Russia’s claim. The creeping pelagic significance of this principle, historically tethered to terrestrial border delimitations and more recently to factual patterns involving gross human rights abuse, is affirmed, notwithstanding doctrinal criticisms about its topical application.
Brubaker and Østreng, supra note 2, p. 319. The authors note that Russia’s icebreaker assisted pilotage requirement for warships would include submarines, giving rise to a problematic application for submerged transit through straits. See ibid. Surreptitious, submerged passage is the sin qua non of transit passage, one of the few points of agreement shared by submariners from China, the United States, Russia, France, and Great Britain, and other countries with such fleets. Ibid., at p. 314. It is doubtful that tensions between transit passage and assisted pilotage can be reconciled, unless submarines surface to transit straits – a practice that no submarine power, including Russia, would countenance except as an act of comity. The key political component to Russia’s claim of historic title to these straits clearly relates to denying invocation of transit passage by foreign submarine fleets, presumably and most probably, the United States’ submarine fleet. The United States could not seek legal support from a claim of prescriptive right, because the requisite element of notoriety is “virtually nonexistent concerning submarine passage”. Ibid., at p. 316.
Brubaker, supra note 43, at pp. 263, 265 and 279; see also López Martin, supra note 31, at p. 65 (noting the Convention added confusion and imprecision to the concept of straits by breaking up the unified treatment of the concept in the 1958 Geneva Convention and constructing a diversified range of legal regimes depending on the category of strait involved).
Ratner, supra note 63, p. 601; see also Shaw, supra note 61, p. 78 (discussing the “perception of artificiality” surrounding uti possidetis because it does not conform with indicia between groups).
E. Hasani, ‘Uti Possidetis Juris: From Rome To Kosovo’, Fletcher Forum of World Affairs(2003) pp. 85–97, at p. 86.
E. Hasani, ‘Uti Possidetis Juris: From Rome To Kosovo’, Fletcher Forum of World Affairs (2003) pp. 85–97, at p. 86.)| false
Klabbers and Lefeber, supra note 64, at p. 61. The authors argue that uti possidetis is better thought of as a principle rather than as a rule.
Shaw, supra note 99, p. 168.
Rothwell, supra note 19, p. 4.
Byers, supra note 27, pp. 148–149.
Lalonde and Lasserre, supra note 22, p. 36.
Brubaker and Østreng, supra note 2, p. 318 (noting other than the incidents in the 1960s “all recent commercial shipments with foreign elements have been made in compliance with the Russian regime”, including US research vessels).
Byers, supra note 27, p. 139.
Blunden, supra note 7, p. 129.
Byers, supra note 27, p. 149.
Schwarzenberger, supra note 119, at p. 310.
Brubaker and Østreng, supra note 2, p. 323.
Brubaker and Østreng, supra note 2, pp. 303–304. For an assessment of Russia’s interest in restoring its naval presence, see Kraska, supra note 143, pp. 421–423.