Navigational Rights for Warships in the Northwest and Northeast Passages

• Author: Ingrid Handeland
• Position: The Royal Norwegian Naval Academy, Norway
• Pages: 143-159

© 2022 Ingrid Handeland. This is an Open Access article distributed under the terms of the Creative Commons

CC-BY4.0 License. eISSN 2387-4562. https://arcticreview.no.

Citation: Ingrid Handeland. “Navigational Rights for Warships in the Northwest and Northeast Passages” Arctic Review on

Law and Politics, Vol. 13, 2022, pp. 143–159. http://dx.doi.org/10.23865/arctic.v13.3383

Arctic Review on Law and Politics

Vol. 13, 2022, pp. 143–159

143

Correspondence to: Ingrid Handeland, e-mail: inhandeland@mil.no

Peer-reviewed article

Navigational Rights for Warships in the

Northwest and Northeast Passages

Ingrid Handeland

The Royal Norwegian Naval Academy, Norway

Abstract

Climate change has renewed the debate about shipping in the Arctic due to an expected reduc-

tion of ice in these sea lanes. Because of the Arctic slowly opening, allowing for more activity,

navigational rights for ships have caught the attention of the world once again, including those of

warships. Through analysing the navigational regime for warships in the Northwest and Northeast

Passages, this article aims to introduce the different rules for navigation and the consequences for

maritime operations in the Arctic, including the right to overight. The United Nations Conven-

tion on the Law of the Sea provides navigational rights for warships and overight in peace time

operations, but the matter of which navigation rules should apply in the passages is under debate.

Based on an analysis of the Convention, case law, legal theory and customary law, the article aims

to shed light on different interpretations of the legal regimes of navigation in the passages and

which rules should apply to warships and overight in the future.

Keywords: Arctic, navigation, transit passage, innocent passage, warships, overight,

UNCLOS

Responsible Editor: Njord Wegge, Norwegian Defence University College, Norway

Received: August 2021; Accepted: December 2021; Published: March 2022

1 Introduction

Since Roald Amundsen’s rst expedition through the Northwest Passage between

1903–1906 – and Adolf Erik Nordenskjold’s rst attempt to traverse the Northeast

Passage from 1878–1879, navigation in these waters has been debated.1 Passage

rights for warships has been debated even more due to security implications for the

coastal states bordering the passages.

Ingrid Handeland

144

Previous to the United Nations Convention on the Law of the Sea (UNCLOS),

adopted in 1982, previous treaties operated with a three-mile-territorial-sea regime

and the issue regarding navigation was less of a problem because most of the straits

used for international navigation were wider than six nautical miles.2 That said, state

practice was in favour of expanding the territorial sea before 1982.3 After expanding

the territorial-sea regime, covering up to twelve nautical miles from the baseline,

freedom of navigation was restricted. To compensate, the regime of transit passage

through straits used for international navigation was established.

With ice-melting in the Arctic enabling new sailing routes, the debate has our-

ished once again. In 2020, High North Logistics at the Nord University reported

in total 64 passages in the Northeast Passage compared to 37 in 2019.4 These sta-

tistics do not include warships. Statistics from Scott Polar Research Institute at

the University of Cambridge show 32 warship transits in the Northwest Passage in

2019.5 Details of submarine transits are not included, but two were reported.6

Although warships enjoy both the right to innocent passage in territorial waters

as well as the right to transit passage through straits used for international naviga-

tion, these rights are controversial and sometimes challenged. Navigation rights for

warships are especially challenged in areas where the security interests of the coastal

states bordering the passages is crucial to protect. On the other hand, freedom of

navigation is highly valued. Navigation rights for warships in accordance with the law

of the sea is about balancing these interests, hence the debate. To secure navigation

rights for warships in the Northeast and Northwest Passages is therefore challenging

due to security implications for both Canada and Russia. To demonstrate its security

interests, Russia has established its most valuable strategic deterrence capacities in

the Arctic, especially in connection with their naval bases on the Kola and Kamchatka

peninsulas. Canada’s Nanisivik Naval Facility on Bafn Island, Nunavut, cannot be

compared with the strategic importance of the Russian naval bases.

Navigation rights for warships was put to the test in the Northeast Passage when the

French Navy conducted a transit with their new offshore support and assistance vessel

Rhône in September 2018.7 There is no explicit information regarding whether the

vessel coordinated its sailing plans with Russia, but the Russian News Agency Izvestia

referred to the transit as “without warning”.8 Starting in Tromsø, Norway September1,

and ending in Dutch Harbor, Alaska September 17, the transit spurred Russia to set

out stringent new rules for foreign warships in the Northeast Passage.9 The regulations

contained special demands on construction, precautionary measures and requirements

relating to safety of navigation and notication 45 days ahead for warships using the

passage.10 However, the regulations have not been put into force, and it has been argued

in legal theory that Russias’ primary intention with the draft was to send a strong polit-

ical signal to deter further challenges to their claims in the passage.11

According to a July 16, 2021 press release, the U.S. Coast Guard vessel Cutter

Healy conducted a transit through the Northwest Passage.12 However, this voyage

occurred under the 1988 Canada-US Arctic Cooperation Agreement and did not