Until recently, Western states had no real reason to sail warships through the Russian Arctic on a freedom of navigation operation (or FONOP) despite calls to do so. This would have made an already risky operation both needless and provocative. But on Dec. 5, Russian President Vladimir Putin signed into law a measure designed to restrict navigation by foreign warships in sections of Russia’s Arctic waters. This is just the latest misstep in a year full of them for the Russian president. Instead of limiting activity by foreign warships off Russia’s Arctic coast, the new law could well incite navigation by Western warships close to Russia’s shoreline.
Russia has recently placed greater emphasis on prosperity and security in its Arctic coastal regions in anticipation of the opportunities and challenges created by a rapidly warming Arctic. The Northern Sea Route (NSR), Russia’s name for part of the Northeast Passage connecting the Atlantic and Pacific Oceans via Eurasia’s northern shore, is key to this program. Putin’s vision is for the NSR to become a major corridor for global trade, and Russian leaders have seized on moments like the 2021 blockage of the Suez Canal to promote their ambitious tonnage goals. But as Russian leaders recognize, commercial users are not the only ones drawn to the waters north of Russia by warming waters and receding ice. Foreign warships are already showing up.
Some, particularly American, commentators have long called for a FONOP against Russia’s Arctic claims. In the purest sense, a FONOP is an act of deliberate disobedience to defend international law against a state’s excessive claims. In Washington’s case, the FONOP program generally involves warships doing things (from simple navigation to military exercises or surveys) that a coastal state’s laws say are forbidden—a claim of right backed by might. But because the U.S. FONOP program uses warships, a FONOP makes no legal sense if there is no law on the books locally that applies to warships.
That has long been the case in the Russian Arctic, where the United States and Russia have a history of disputes about the limits of international maritime law. In Russian law, the NSR covers a vast area stretching from Novaya Zemlya to the Bering Strait. The United States has used notes to question the controls Russia has introduced, relying on the fact that these waters are generally covered by ice. But no NSR provision ever applied to warships.
Russia has also claimed the key straits of the region to be internal waters, which the United States disputes as well, but they have been coy about the basis for that claim and what it means for foreign warships that would use those passages. The United States could justify a FONOP in the internal waters of one of these straits, but the U.S. claim that these are international straits is not a legal slam dunk and the technical challenges of pushing the U.S. counterclaim (a specific form of navigational right that would likely require passage by a submerged submarine) further raises the bar for action.
Now, Russian lawmakers have moved to restrict foreign warship navigation in the NSR’s internal waters. The amendment Putin approved introduces several measures specific to foreign warships. Most importantly, Russia requires them to obtain permission to navigate through the covered straits at least 90 days in advance. The new law also limits the number of warships concurrently allowed in the straits and allows Russia to suspend navigation for warships at any time.
To maritime lawyers, these requirements erase any ambiguity; Russia is taking the most extreme position possible on its right to control all foreign navigation through the internal waters of the NSR. This claim is still geographically limited, applying only to approximately 3 percent of the NSR’s total area, and uncontrolled navigation is still possible north of the straits. But still, straits are sensitive maritime geography for a reason. The new measure is sure to draw the gaze of Western leaders and naval planners back to the Russian Arctic to assess the measure’s basis in international law and ripeness for a FONOP. Indeed, although coincidental, the final version of the National Defense Authorization Act for Fiscal Year 2023, released the day after Putin signed the new law, includes a section that calls for preparations for U.S. warships to transit the NSR.
As a factual matter, Russia’s measure plainly violates international law (which, incidentally, also makes it invalid under the Russian Constitution).
The argument is simple. The Soviet Union explicitly acknowledged innocent passage rights in the Kara Gate and Vilkitsky Straits in a series of diplomatic exchanges with the United States in the 1960s. The Soviet Union drew straight baselines to claim internal waters in 1985. In 1985, the Soviet Union was also party to the 1958 Convention on the Territorial Sea and Contiguous Zone, which requires that innocent passage rights are preserved in cases where internal waters are declared over areas where innocent passage previously existed. (The United Nations Convention on the Law of the Sea requires the same.) As the straits were newly declared areas of internal waters where innocent passage had previous existed, innocent passage rights must apply to the present. The new law, including provisions requiring prior approval for navigation, is squarely incompatible with innocent passage, including Russia’s interpretation of the right.
The other two straits likely fall under the same basic logic, although with a few more steps. In the 1960s, the Soviet Union suddenly announced a claim that the Dmitry Laptev and Sannikov Straits were internal waters by right of historic title (likely because the Soviet Union could not plausibly prevent U.S. navigation through these wider straits otherwise). This would preclude innocent passage, but the United States promptly protested and has continued to reject this claim to the present. Since U.S. protests blocked this claim, the same logic applies to all four straits.
Faced with no laws on the books to restrict and control foreign warships active off their northern coast, Russian lawmakers explained that the measure was necessary to “safeguard” Russia’s “national interests in the Arctic region.” The measure seems to be a unique combination of ineffective and counterproductive efforts.
It is ineffective because even if the measure is lawful and respected by foreign warships, it would apply only to 3 percent of the NSR’s area. All of Russia’s Arctic territorial sea and its exclusive economic zone (EEZ) would (rightfully) remain open to foreign warships.
The measure is counterproductive because it creates a new, appealing target for a freedom of navigation operation in defense of innocent passage rights. Clear violations of an obvious right to innocent passage matter because they end a period of ambiguity in Russian law, but more importantly, they also expand the pool of states that might consider a FONOP. The U.S. claim that these straits are legally “international straits” is contentious, but the innocent passage claim is irrefutable. Warships belonging to U.S. allies that previously might have taken the high road through Russia’s EEZ might now swing low through the Kara or Vilkitsky Straits in defense of innocent passage and international law.
With the new law, Russia might think it is “regaining the Arctic,” but really, it has moved out to thin ice. All it would take is one foreign icebreaker or warship passing through the Arctic straits to send Russia into the cold water of reality lying just below.
