Northern Sea Route Permit Scheme: Does Article 234 of UNCLOS Allow Prior Authorization?

Abstract

The legislation of Russia and Canada includes a veiled requirement to obtain prior authorization from the coastal State for merchant ships to navigate through large areas in the Arctic. The coastal State concept of prior authorization presupposes that a coastal State may legally give or withhold its consent to the passage of a vessel. In areas where flag States enjoy navigational rights or freedoms, the notion that a coastal State may exercise authority to give or withdraw consent is controversial. While there are clear situations where coastal authorization is legally valid, for example, entry into a State’s internal waters, there is no international legal instrument related to navigation that refers to prior authorization. Both Russia and Canada view Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS) as providing the international legal basis for this measure. Other States have protested Canada’s and Russia’s requirements, however, ships of many flag States have sought permits from the respective coastal administrations.