The “Environmental Dimension” of Article 234 of the United Nations Convention on the Law of the Sea and Russian Legislation on the Regulation of Navigation in the Waters of the Northern Sea Route

Аннотация

Climate change in the Arctic, caused by global warming, and the political processes taking place in the world associated with the increased pressure from the countries of the collective West on the Russian Federation, once again raise the question in Western doctrine of the validity of the Russian Federation establishing a national regime for navigation in the waters of the Northern Sea Route in accordance with Article 234 of the 1982 UN Convention on the Law of the Sea. Doubts have been raised about Russia’s compliance with the Convention’s requirement to maintain a balance between freedom of navigation and environmental protection. The purpose of this work is to analyse the validity of claims against the Russian Federation regarding its alleged abuse of the right to establish a national regime for navigation in the Arctic under the guise of environmental protection. The problems raised in this work are structurally divided into three main groups. The first involves an analysis of the specific features of shipping in the Arctic in the context of a changing climate and outlines why a special legal regime for navigation in polar waters needs to be established. The second is devoted to the systematic interpretation of Article 234 of the UN Convention on the Law of the Sea, in its relationship with other norms of the Convention, identifying the criteria and restrictions established therein in relation to the rules of navigation adopted by the coastal State in ice-covered areas, as well as the legal content of the requirement of “due regard to navigation and the protection and preservation of the marine environment.” The third part of the work is devoted to assessing the legislation of the Russian Federation on the regulation of navigation along the Northern Sea Route for its compliance with the requirements of Article 234 and maintaining the balance of freedom of navigation and protection of the marine environment in the Arctic. The legislation of the Russian Federation on the regulation of navigation in the waters of the Northern Sea Route fully meets the conditions and criteria established by Article 234 of the Convention, and is aimed at ensuring the functioning of a unified and centralized system for managing the safety of navigation in the particularly dangerous conditions of the Arctic, preventing accidents and environmental pollution environment. The restrictions established by Russian legislation are not discriminatory and are based on current and constantly updated scientific data. Shipping in polar waters involves enormous risks to human life, valuable property, and an extremely fragile and vulnerable environment. The effects of global warming are only exacerbating these risks, leading to increased ice instability and worsening climate problems. In this regard, in icecovered areas, a centralized navigation management system is objectively necessary, and special, uniform legal regulation to ensure the uninterrupted functioning of such a system should be established. A systematic interpretation of Article 234 of the UN Convention on the Law of the Sea allows us to conclude that the establishment by a coastal state within its exclusive economic zone of non-discriminatory laws and regulations aimed at preventing, reducing, and control pollution of the marine environment by ships is not a privilege, but a duty of the state based on its more general obligation to protect the marine environment, established in articles 192 and 194 of the UN Convention on the Law of the Sea. The rule of “due regard to navigation” in this regard should be interpreted to mean that the restrictions and requirements imposed by the laws and regulations of the coastal State must be primarily aimed at ensuring the safety and protection of the marine environment in harsh climatic conditions, without being at the same time discriminatory, unreasonable, and excessive.