More Political Theatrics as Russia wants to Denunciate UNCLOS in the Arctic – Leave the Performances for the Bolshoi

Icebreaker “Dikson” in Arkhangelsk, Russia on 16 July 2018. Photo: Alexxx1979

After the US Arctic continental shelf’s gambit to test the limits of the United Nations Convention on the Law of the Sea (UNCLOS), there is more “drama” in ocean governance. In the grand theatre of International Law, Russia stands above all in its penchant for bold declarations and dramatic gestures, with no signs of changing its political tact – the curtains have risen on its latest. On Monday March 18, Chairman for the Russian Parliament Committee for the Development of the Far East and Arctic, Nikolai Kharitov, told the Russian Government News website, Izvestia, that once again it is considering leaving UNCLOS, specifically it is “denunciating the convention in the Arctic” citing concerns over NATO activity in the region. Given that the provisions of UNCLOS largely reflect customary international law, Russia would still need to fulfil its obligations as a state, so questions are raised over what the material effect would be over such a move, if any. Or rather, is this yet another diplomatic pirouette from the Kremlin?

This is another statement in what has been a history of long statements. Since the end of the Second World War, Russia has long relied on projections of power and brash rhetoric to maintain some semblance of influence as a disruptive force in the international sphere. As a state, it has struggled to integrate itself back into the international order. While during the Cold War, the USSR had to compete with the US economic powerhouse, as well as the emergent European Coal and Steel Community (which would eventually become the European Union), the situation changed drastically in the 1990s. In the post-Soviet period, Russia, as the former leader of the USSR, faced massive economic difficulties. At the beginning of the 1990s, Russia’s GDP was a mere USD 5.77 thousand, GDP per capita was USD 2.7 thousand and GDP growth in real terms was 4.4 percent, so it opted to use its position as a resource economy to better effect. Nowadays, even though Russia has managed to become a leading petroleum producer, post-communist economic transformation is still a struggle, and Russia is choosing to act as a disruptive force.

As a state party to UNCLOS, Russia, of course, has the right to withdraw, which would be in accordance with Article 317 of the convention. However, the implications of such a decision warrant thorough consideration. UNCLOS stands as a cornerstone in the codification of customary international law, having been formally ratified in 1982. It is often described as the legal “constitution for the oceans and seas,” providing an extensive framework for the governance of marine jurisdiction and territory, navigational rights, environmental protection, and includes provisions for dispute resolution. Notably, the frozen waters of the Arctic region were initially excluded from explicit mention within the convention. This gap was subsequently addressed through UNCLOS Article 234, following closed-doors negotiations by Canada, the United States, and the USSR during the Third United Nations Conference on the Law of the Sea (1973 – 1982). As a result, in conjunction with various regional agreements, a comprehensive governance system for Arctic waters has been established, under which all parties, including Russia, have largely complied with and met their obligations.

Despite Mr. Kharitonov’s position as Chairman of the State Duma Committee for the Development of the Far East and the Arctic, his statements betray a limited understanding of UNCLOS and international law more broadly. The article in Izvestia suggests that Russia could withdraw from UNCLOS specifically “in the Arctic,” with Kharitonov’s declarations echoing elements of the obsolete USSR sector theory. However, in the realm of international law, UNCLOS cannot be selectively applied or withdrawn from in specific geographic regions; a complete withdrawal from the convention would be required. Even then, Russia would remain obligated to adhere to the provisions of UNCLOS that embody customary international law and would not “affect the duty of any State Party to fulfil any obligation embodied in this Convention to which it would be subject under international law independently of [UNCLOS]” (Article 317(3).). Therefore, the primary consequence of withdrawal would be Russia’s inability to make use of the compulsory dispute resolution mechanisms provided by the convention, including the International Tribunal for the Law of the Sea (ITLOS).

If we are to take such rhetoric and potential security threats at face value, they need to be replaced in the current discursive narratives about international law in Russia. In this case, Mr. Kharitonov’s statement appears to be emblematic of a broader performative contradiction that juxtaposes the concept of a rules-based international order against established international law. This dichotomy is highlighted by Russia’s objections to what it describes as “rules no one has agreed on,” which seems to conflate the rhetoric employed by some Western nations regarding the rules-based order with the concrete international norms and agreements that the USSR and the Russian Federation, as its successor state, have historically participated in negotiating, developing, and to which it has formally consented. This conflation not only muddles the dialogue between the norms of international law and the principles of a rules-based order but also underscores a strategic manoeuvring in international relations discourse, where Russia positions itself against what it perceives as unilaterally imposed standards that lack universal consensus, despite its own historical role in shaping the legal framework it now critiques.

For Russia, the Arctic region transcends mere geographical significance, acting as a pivotal political instrument that has historically moulded the national identity and continues to play a crucial role in its prospective fortunes. This intrinsic value underscores the importance of the Arctic and, by extension, the UNCLOS as a governing instrument therein. Given the strategic positioning of the Northern Sea Route (NSR), which traverses nearly the entire length of Russia’s Arctic Exclusive Economic Zone (EEZ), Russia views the NSR as a viable maritime corridor offering an expedient alternative for cargo transit between Europe and Asia. Consequently, the advantages of withdrawing from UNCLOS appear ambiguous, as such an action could potentially undermine Russia’s vested interests in maintaining its influence and operational control over this critical Arctic passage. As Russia develops and uses the NSR as geopolitical leverage, it would be best to leave international law to qualified lawyers and the performative theatrics for the Bolshoi.

Aaron Cooper is a PhD Research Fellow at Stavanger University, Norway. He is an expert in international law. Romain Chuffart is not only President and Managing Director at TAI but currently also the Nansen Professor in Arctic Studies at the University of Akureyri, Iceland.