Last week, the U.S. Navy announced publicly that a group of warships had entered the Arctic waters of the Barents Sea to “conduct maritime security operations.”  The ships participating in these combined operations included three U.S. Navy Arleigh Burke-class destroyers and one Royal Navy Duke-class frigate, all of which were accompanied by a U.S. Naval Ship to provide them with logistical support during their operations.  This group of surface ships also received air supportduring these operations from a U.S. Navy P-8A maritime patrol and reconnaissance aircraft and a U.S. Air Force RC-135 reconnaissance aircraft.  Given that these operationswere conducted within a body of water located among the coastlines and island groups of twoEuropean coastal states(i.e., Norway and Russia), the U.S. ships were under the operational command of Commander, U.S. Naval Forces Europe/Africa, headquartered in Naples, Italy.  Of significance, the U.S. Navy’s press release highlighted that these were the first “surface” operations conducted by the U.S. Navy in the Barents Sea since the mid-1980s.  Additionally, the press release declared that these combined naval operations had two intended purposes: (1) to “demonstrate seamless integration among allies” and (2) to “assert freedom of navigation.”About this second purpose, the commander of the destroyer squadron stated, “It was great to be operating in the Barents Sea again.  This is what it means to be a global Navy, sailing wherever international law allows.”

When it comes to “sailing wherever international law allows,” the concept of maritime freedom has received significant international attention over the past few years –but primarily for waters elsewhere in the world that are distant from European shores.  In general, there is a minority of coastal states around the world that attempt to restrict the transits and activities of other states’ vessels and aircraft, particularly their military vessels and aircraft, in excess of what international law permits them to restrict.  While not the only culpable state, China has received much scrutiny for its efforts to control how ships and aircraft may operate on and over the waters of East Asia, particularly within its infamous 9-dash line in the South China Sea.  If other states acquiesce to illegal restrictions imposed by this minority of coastal states, then the maritime freedom guaranteed to all states globally could be jeopardized.

To counter efforts by this minority of coastal states to restrict maritime freedom, the U.S. government has executed a presidentially-directed, multi-agency “Freedom of Navigation Program” over the past four decades.  In conjunction with formal diplomatic protests by the U.S. Department of State, ships and aircraft of the U.S. military conduct routine transits and peaceful activities, known technically as “freedom of navigation operations” (FONOPs) or “operational assertions.”Of note, the U.S. Freedom of Navigation Program also includes what is described as “other FON-related activities” — that is, operations that have “some other primary purpose, but have a secondary effect of challenging excessive maritime claims.”The purpose of these FONOPs and other FON-related activities is to ensure that unlawful, unilateral restrictions imposed by coastal states are not accepted internationally.  For the Arctic region specifically, the U.S. Department of Defense Arctic Strategy (June 2019) described the importance maritime freedom in the Arctic region as follows:“Maintaining freedoms of navigation and overflight are critical to ensuring that the Arctic remains a free and open domain and that U.S. forces retain the global mobility guaranteed under international law. DoD will continue to fly, sail, and operate wherever international law allows.”  At a fundamental level, that same U.S. strategy recognized that preserving maritime freedom in the Arctic, as it is other regions of the world, is about “strengthening the rules-based order.”

On previous occasions, this author has sought to provide insights into the importance of maritime freedom and the deliberate role of the U.S. military in helping to preserve this freedom.  These commentaries have included examinations of the legality and legitimacy of such military operations, explanations about why are they are conducted in the South China Sea, and efforts to quash legal disinformation and dispel factual myths propagated by critics who are opposed to these operations.  Critics of the U.S. Freedom of Navigation Program, including voices in China, often allege inaccurately that these operations are intended to be provocative and that they seek to single out nations that the United States does not like.  At the same time, some European legal observers might be unfamiliar with the FON program and question whether FONOPs are warranted.  For these reasons, the recent U.S./U.K. naval operations in the Barents Sea provide an opportunity to reflect upon the importance of preserving maritime freedom – not only in that body of water, but in oceans world-wide. 

Restrictions on Maritime Freedom in the Barents Sea

Military doctrine explains, “Understanding the operational environment is fundamental to joint operations.”  This operational environment includes “the conditions, circumstances, and influences that affect employment of capabilities and bear on the decisions of the commander.”  In terms of law, what are the “influences” or “conditions” that could affect the operational environment of the Barents Sea?  As mentioned previously, there are two states with territory surrounding the Barents Sea: Norway and Russia.  Norway has not attempted to restrict the maritime freedom enjoyed by other states, but Russia has asserted excessive maritime claims that could affect maritime freedom within portions of the Barents Sea.In particular, Russia has two maritime claims that might have potentially been challenged during the recent U.S./U.K. naval operations.

First, Russia has drawn baselines along its entire coastline, which close off an excessive amount of waters as internal waters and improperly push out the starting point for measuring its maritime entitlements (i.e., territorial sea, contiguous zone, and exclusive economic zone).  As reflected in applicable international law, the normal rule for drawing baselines along a state’s coastline is to use the low-water mark. The International Court of Justice has ruled that the method of straight baselines is “an exception to the normal rules for the determination of baselines” and “may only be applied if a number of conditions are met.”  For example, a straight baseline drawn across a body of water shall not exceed 24 nautical miles. Notwithstanding these legal limitations, Russia has literally implemented the exception to be its universal rule.  In 1984 and 1985, the then-Soviet Union declared a comprehensive regime of straight baselines along its entire coastline.  For purposes of this discussion, the 1985 declaration including straight baselines on Russia’s coastline adjacent to the Barents Sea.  Of note, one of those baselines is drawn from Cape Svyatoy Nos and Cape Kanin Nos, measures approximately 220 nautical miles in length, closes off the mouth of the White Sea, and thereby seeks to make it entirely internal waters. Consequently, the U.S. government views Russia’s regime of straight baselines to be an excessive maritime claim, and challenged these baselines diplomatically and operationally in the 1980s.

Second, Russia has imposed navigational restrictions along the Northern Sea Route (NSR), which appear to apply to military and non-governmental vessels alike.  In 2012, Russia enacted its Federal Law of Shipping on the Water Area of the Northern Sea Route.  This law mandates that foreign vessels intending to transit the NSR shall, among other requirements, provide advance notification of transits, use Russian ice pilotage, pay pilotage fees, and be escorted by Russian icebreakers.  In May 2015, the U.S. Department of State delivered a diplomatic note to the government of Russia, which identified a number of ways in which its NSR law exceeded the authority of a coastal state under international law.  The diplomatic note highlighted that the Russian legal regime “does not seem to provide an express exemption for sovereign immune vessels.”  Similarly, the DoD Arctic Strategy assessed there strictions of Russia’s NSR law to be “in excess of the authority permitted under international law.”Notwithstanding these U.S. concerns, the Russian government did not eliminate or loosen these restrictions, but rather started the process of furthering tightening them.  In March 2019, Russia announced draft legislation that would expressly apply these transit requirements on foreign warships, which would clearly violate the sovereign immune status of such warships. 

For these two excessive maritime claims asserted by Russia, the question remains: could the U.S./U.K. warships have challenged either or both these claims during their Barents Sea operations?  In all likelihood, they could have challenged the first one, but maybe not the second one.  Given that Russia’s straight baselines include its entire coastline in the Barents Sea, these foreign warships could have conducted one or more FONOPs to challenge that claim.  But it is somewhat unclear whether it would have been feasible for the foreign warships to challenge the second claim in the Barents Sea.  By the actual language of Russia’s 2012 NSR law, these requirements apply to vessels navigating in the “area of the Northern Sea Route.”  Article 5.1. of that law defines that “area” to include “a water area adjoining the northern coast of the Russian Federation, including internal waters, territorial sea, contiguous zone and exclusive economic zone of the Russian Federation.”  It further defines that area to span from the Bering Strait at its most western point to the “east coast line” of the Novaya Zemlya archipelago.  In other words, the Barents Sea is not within what defines as the “area of the Northern Sea Route.”However, Commander, U.S. Naval Forces Europe/Africa published an opinion-editorial in July 2019, in which he expressed concern about Russia’s increased restrictions on the NSR.  Of note, his description of the NSR implied that the Barents Sea was impacted by Russia’s law, given that he described the NSR as one that “connect the Kola Peninsula and the Bering Strait.”  If that the U.S. understanding of the situation, then these naval operations might have additionally or alternatively sought to challenge this second excessive claim.

As an aside, it would also be helpful to understand what is not the purpose of FONOPs.  In particular, these operational activities are directed at excessive maritime claims, not competing maritime claims.  For competing claims, the U.S. government generally does not take a side in maritime disputes to which the United States is not a party, but calls upon the claimant-states to resolve their disputes by peaceful means in accordance with international law.  This policy nuance is sometimes misunderstood by some government officials and outside observers, particularly in complex situations such as the South China Sea, where competing claims and excessive claims exist simultaneously.  But fortunately, this is not an issue in the Barents Sea.  That is, the “operational environment” of the Barents Sea is not complicated by competing maritime claims, given that Norway and Russia have an agreed maritime boundary delimitation, based upon their 2011 bilateral treaty.

Returning to the matter of maritime freedom, some observers might wonder: what exactly did the U.S./U.K. Navy do during these recent operations in the Barents Sea to protect maritime freedom?  The U.S. Navy’s press release for the Barents Sea operations stated generally that one of the purposes of these operations was to “assert freedom of navigation,” without specifying whether any element of these ongoing operations would actually include ship transits or activities designed to directly challenge one or more of these excessive maritime claims asserted by these surrounding states.  Hopefully, given that the public records of U.S. Freedom of Navigation operations reflect that the most recent diplomatic and operational challenges to these excessive maritime claims in the Barents Sea were in the 1980s and early 1990s, the U.S. and U.K. navies seized this opportunity to renew the operational challenges to some or all of these excessive claims.For reasons of operational security, the public will not know for certain whether specific operational challenges were conducted during these Barents Sea operations until the U.S. Department of Defense issues its annual Freedom of Navigation report for fiscal year 2020, which would be published sometime in early 2021.However, in light of recent U.S. practice elsewhere in the world, the U.S. government might alternatively decide to publicize any freedom of navigation operations in the Barents Sea, soon after they were conducted.

Finally, it should be noted that these recent U.S./U.K. naval operations might have intended to preserve maritime freedom more generally, without actually including a FONOP or other FON-related activities that directly challenge a particular excessive maritime claim.  The U.S. Navy sometimes publicly characterizes these as a “persistent presence” or “routine presence operations.” Such presence operations can be intended to effectuate several national security policies or interests simultaneously, to include preserving maritime freedom, reassuring allies and partners, deterring transnational crimes such as piracy, and dissuading competitors and potential adversaries.  Of course, there would be nothing wrong if these recent naval operations did not include activities to directly challenge one or both of these excessive maritime claims asserted by Russia.  However, given the logistical challenges, expended resources, expansive area of operations, and relatively infrequency for this group of warships to transit to and operate within Arctic waters, it would have been a lost opportunity if the U.S. Navy did not conduct at least one FONOP as an element of these Barents Sea operations.

The Significance of Providing Notification

Given the geopolitical status of Russia in the European theater, perhaps some additional thoughts on maritime freedom through the lens of U.S.-Russia relations are warranted.  The current U.S. National Security Strategy recognizes that the United States, Russia, and China are not “at peace” or “at war,” but rather are operating in “an arena of continuous competition.”  The strategy also identifies that a “risk of conflict due to Russian miscalculation is growing.”  In response, the U.S. strategy declares, “We will raise our competitive game to meet that challenge, to protect American interests, and to advance our values.”  Additionally, the United States seeks to “deepen collaboration with [its] European allies and partners to confront forces threatening to undermine our common values, security interests, and shared vision.”  These allies would include the United Kingdom, and these common values would include preserving maritime freedom.  Yet a question arises:  how can the United States protect a value or interest like maritime freedom without increasing the risk of miscalculation by a competitor like Russia?  Once again, consider the Barents Sea naval operations as an illustrative example.

An important preparatory step taken with respect to these naval operations was that Russia was notified that they were occurring.  As a matter of practical details, when and how was this notification provided?  The U.S. Navy’s press release addresses when it was provided: “The Russian Ministry of Defense was notified of the visit to the Barents Sea, May 1.”But it does not specify the manner in which the notification was provided.  In all likelihood, the U.S. government provided this notification through defense attaché channelsor a direct communications link with the Russian government.

Another logical question worth asking is why was this notification provided?  The U.S. Navy’s press release clarifies, “The notification was made in an effort to avoid misperceptions, reduce risk, and prevent inadvertent escalation.”  Some observers might wonder whether providing this advance notification of these operations sets a “bad precedent.”  International law can be formed by either conventional law or customary law, but both forms of law create legal obligations for the state-parties involved.  In terms of customary law, a concern might be that a practice of providing notifications to a coastal state before conducting transits or commencing routine operations could eventually form an obligation to provide such notifications in the future.  Paradoxically, legal experts might question whether providing this type of notification for naval operations – especially ones that are specifically intended, in part, to protect maritime freedom — might risk undercutting that very freedom by providing that notification.

In this particular instance, however, this notification arguably does not jeopardize the maritime freedom guaranteed to all states under international law.  As the International Court of Justice has explained, customary international law is formed through state practice accompanied by “a belief that is practice is rendered by the existence of a rule of law requiring it.”  This necessary element is captured by the Latin phrase opinion juris sive necessitatis, or “opinio juris” for short.  This raises the question:  what was the intended purpose of this notification for these naval operations?  In other words, this notification was not provided out of some sense of obligation or requirement of the international law of the sea.  Instead, the decision to provide this information to Russia was made as a matter of U.S. policy. 

Moreover, the U.S. Navy’s press release does not indicate that notification was provided for a particular freedom of navigation operation to challenge a specific maritime claim asserted by Russia as a coastal state.  Instead, the notification might have been more generally about the combined U.S./U.K. naval operations within the high seas of Barents Sea.  This would be consistent with specific obligations under a bilateral agreement that is separate and apart from the international law of the sea.  In fact, the United States and Russia have several bilateral agreements that include notification provisions designed to reduce risk of unsafe incidents or escalation between their respect military forces.  Under the 1972 Prevention of Incidents On and Over the High Seas Agreement (INCSEA), both the United States and Russia agreed to “provide through the established system of radio broadcasts of information and warning to mariners, not less than 3 to 5 days in advance as a rule, notification of actions on the high seas which represent a danger to navigation or to aircraft in flight.”  Additionally, the two governments concluded a legally-binding, bilateral agreement in 1989 with the stated purpose of “prevent[ing] dangerous military activities, and thereby [reducing] the possibility of incidents arising between their armed forces.”  Article II of that agreement obligates each party to “take necessary measures directed toward preventing dangerous activities,” without specifying what types of measures are necessary and whether those measures might include prior notification of conducting activities.  At the same time, however, Article VIII of that same agreement states, “This Agreement shall not affect…the rights…of navigation and overflight, in accordance with international law.”  In short, the U.S. advance notification to Russia about these naval operations did not otherwise undermine the maritime freedom to operate in the Barents Sea.

The Importance of “Maintaining” Maritime Freedom Against “All Hazards”

In closing, a brief lesson in maritime history and law might be appropriate.  The Barents Sea was named after Willem Barentsz.  Living in latter half of the sixteenth century, Barentz was a Dutch navigator, cartographer, and explorer.  During his seafaring career, he famously explored all of the oceans and islands surrounding the European continent, to include the Mediterranean Sea but more notably waters within the Arctic Circle.  Hoping to find the “northeast passage,” Barentz and his crews impressively braved extreme weather conditions and undertook three historic voyages through these icy waters.  For these accomplishments, one of the bodies of water that he was a pioneer to explore was eventually named in his honor.  Coincidentally, the final years of Barentsz’s life overlapped with the first years of another famous Dutchman:  Hugo Grotius.  Grotius was aware of his fellow countryman’s contribution to international maritime exploration, as he purportedly observed that Baretnsz was “worthy to be ranked with” the Italian Amerigo Vespucci and Christopher Columbus.  Eventually, Grotius left his own mark on world history, being described now by many legal experts as the “father” of international law. 

Only a decade after Barentz’s death, Grotius published his pamphlet Mare Liberum, which translates from Latin as The Freedom of the Sea.  About the universality of maritime freedom, Grotius famously observed, “[T]he sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries.”  At that time, Grotius was countering Portugal’s mare clausum (closed sea) policy.  What happens if one state seeks to control other states’ free access to the world’s oceans: should those others states capitulate or acquiesce?  Grotius legal defense of maritime freedom argued otherwise:

Wherefore since both law and equity demand that trade with the East Indies be as freeto us as to any one else, it follows that we are to maintain at all hazards that freedom which is ours by nature, either by coming to a peace agreement with the Spaniards, or by concluding a treaty, or by continuing the war.

Four centuries later, we see that two truths endure: the cold weather conditions of the Barent Sea still pose a “hazard” to mariners who brave those Arctic waters; so, too, do the efforts by some states around the world that seek to restrict the maritime freedom of other states, including in the waters of the Barents Sea.  In the contemporary era, however, the ways for states to “maintain” their maritime freedom has been refined, beyond “a treaty” or “a war.”  In between those extremes rests another option:  routine, peacetime naval operations, like those recently undertaken by two allied navies.