The Northern Sea Route and the Seaward Extension of Uti Possidetis (Juris)

The Northern Sea Route and the Seaward Extension of Uti Possidetis (Juris) 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. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Nordic Journal of International Law Brill

The Northern Sea Route and the Seaward Extension of Uti Possidetis (Juris)

Nordic Journal of International Law, Volume 83 (4): 476 – Nov 1, 2014

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Publisher
Brill
Copyright
© 2014 by Koninklijke Brill NV, Leiden, The Netherlands
Subject
Articles
ISSN
0902-7351
eISSN
1571-8107
DOI
10.1163/15718107-08304004
Publisher site
See Article on Publisher Site

Abstract

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.

Journal

Nordic Journal of International LawBrill

Published: Nov 1, 2014

Keywords: uti possidetis juris ; uti possidetis de facto ; analogy; effectivités ; Northern Sea Route; international straits; climate change

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