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Drifting Away? Russia’s Dissatisfaction With the Law of the Sea

Should Russia withdraw from UNCLOS, this would spell the start of the end of the current near-global consensus on the governance of the oceans.

Choppy waters: President Vladimir Putin with his naval commanders aboard the missile cruiser Marshal Ustinov in the Black Sea

Recent open-source reporting has indicated increasing Russian dissatisfaction with international maritime norms. This includes three major pivot points: (1) the failure of Russia to be re-elected to the Council of the International Maritime Organization (IMO); (2) Russia questioning continued adherence to UN Convention on the Law of the Sea (UNCLOS); and (3) the declaration of the Sea of Azov as Russian internal waters. The cumulative effect could have significant far-reaching repercussions for the so-called rules-based international order.

On 1 December 2023, following diplomatic pressure from Ukraine, Russia failed to be re-elected to the IMO Council. The USSR and then Russia had consistently held a place on the Council since 1958 and has accused the IMO and its members of abandoning its impartiality. The IMO and UNCLOS could be viewed as a ‘package deal’ and it is therefore interesting that in an article published on 11 December 2023, a member of the Russian parliament stated that in the near future, the State Duma will discuss the issue of withdrawal from UNCLOS. The article expressed dissatisfaction that UNCLOS allows other navies, in particular the US, to operate in the Arctic region, and conduct ‘active reconnaissance activities’. The article highlights that prior to UNCLOS, the Arctic was split into five sectors, with the relevant coastal states having control over those sectors. The article also claims that Russian ratification of the treaty was ‘foolish’ and this now needs to be reconsidered, because the Northern Sea Route is an ‘internal transport artery’.

On 12 December 2023, a further announcement by the Russian Federation stated that the Sea of Azov will be named as ‘Russian internal waters’. At the time of writing, Russia has control of the entire coastline of the Sea of Azov, including Ukrainian territory. Russia has already openly argued that the Sea of Azov should not be bound by the UNCLOS provisions; this statement, including a reference to legislation being passed in the Duma, cements the Russian approach into their own domestic law.

A brief legal analysis highlights a number of factors:

IMO Council. The IMO Council is the executive organ of the IMO. The Council is made up of 40 member states, elected for two-year terms. There is no provision for permanent membership.

No state has yet withdrawn from UNCLOS and, if Russia does, it will be a blow to the rules-based international order

The Arctic. In 1985, prior to its ratification of UNCLOS, the USSR declared a number of straight baselines in the Arctic, effectively enclosing areas of water as internal waters within what is now the Northern Sea Route. However, the Russian approach to the status of these waters has fluctuated over the decades (in the 1960s, diplomatic correspondence with the US indicated they were territorial sea, whereas in the 1980s, they appeared to declare the areas as internal waters). As long as Russia remains a signatory to UNCLOS, they will likely face pressure from the international community to allow the right of innocent passage, as a minimum, to continue as a ‘grandfather right’ as provided for under UNCLOS Article 8 (2).

The Black Sea, Sea of Azov and Kerch Strait. In 2016, Ukraine brought a case against the Russian Federation through the Arbitral Tribunal constituted under Annex VII UNCLOS. The case concerns a broad array of submissions relating to, inter alia, navigational rights, marine resources, and the marine environment in the Black Sea and the Sea of Azov. The case will not address sovereignty over these areas, as this is outside the bounds of UNCLOS. Given current events, it seems highly unlikely that Russia would accept any decision from the Tribunal unless it was in Russia’s favour. Nevertheless, should Russia have withdrawn from UNCLOS by the time the award is handed down, Russia will not be bound by it. The more striking aspect is that Russia feels that this declaration is legitimate, even with an international court case rumbling in the background. Prior to the invasion, Russia was fully involved in the process. That approach now appears to have been firmly discarded.

Denunciation from UNCLOS. UNCLOS Article 317 provides for a state denouncing the treaty and reasons do not have to be given. That said, Article 317 (3) states that the denunciation ‘shall not in any way affect the duty of the State Party to fulfil any obligation embodied in this Convention to which it would be subject under international law independently of this Convention’. An obvious example would be the prohibition on the use of force under Article 2 (4) UN Charter. This is reflected in UNCLOS by Article 301, which effectively repeats Article 2 (4) under the title ‘Peaceful uses of the Seas’.

No state has yet withdrawn from UNCLOS and, if Russia does, it will be a blow to the rules-based international order. UNCLOS is one of the most widely ratified treaties in existence, with substantial case law on its application, and as such it is viewed as reflective of customary international law. The US, as one of the most prominent non-signatories of UNCLOS, has accepted this view, and with some minor exceptions has declared that it accepts its provisions as binding. Therefore, even if Russia were to withdraw, it would arguably still be bound by its terms.

The effects of a Russian withdrawal from UNCLOS may therefore not be felt immediately. As a major maritime power, freedom of navigation is as important to Russia as it is to the UK and US. However, as time progresses, difficulties will lie in dispute resolution. If Russia is no longer a signatory to UNCLOS, it will no longer be bound by its dispute mechanisms, which include not only the Annex VII tribunals, but also the International Tribunal on the Law of the Sea (ITLOS). Russia does however remain a signatory to the UN Charter, and therefore by default the International Court of Justice (ICJ).

Russia sees itself being ostracised by the international community in areas previously assumed to be independent and impartial

It should not be assumed that the events and public statements in December are necessarily linked, or indeed part of a coordinated messaging campaign. Rather, they may instead be a reaction to external pressure and indicative of a growing dissatisfaction. Russia sees itself being ostracised by the international community in areas previously assumed to be independent and impartial. The declaration regarding the Sea of Azov is also undoubtedly part of Russia wider messaging regarding the ongoing war in Ukraine.

Further afield, China has also indicated a wish to move away from its provisions, with public statements indicating that it does not view UNCLOS as the single authoritative source on the law of the sea, and rejections of UNCLOS arbitration with respect to territorial disputes in the South China Sea.

Although at present unlikely, if Russian rhetoric turns to action and it withdraws from a treaty it believes is no longer fit for (its) purpose, and if China then follows (two very big ‘ifs’), it would spell the end of the current near-global consensus on the governance of the oceans. The world could enter an era of competing rules-based systems with consequent impact on territorial claims, safety and environmental regimes, resource exploitation, and the flow of trade. Crucially, this could also impact how new technologies such as uncrewed vessels are governed at sea.

The UK’s approach to international law, and the law of the sea, should not, and need not change, but the Royal Navy may be required to do more constabulary operations, including freedom of navigation patrols and protection of economic nodes and sea lines of communication.

The views expressed in this Commentary are the authors’, and do not represent those of RUSI or any other institution.

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Original article link: https://rusi.org/explore-our-research/publications/commentary/drifting-away-russias-dissatisfaction-law-sea

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