Peter the Great Bay and Freedom of Navigation

Named after the czar who ruled Russia from 1682 to 1725, Peter the Great Bay near the Sea of Japan was declared a « historic bay » on 20th July 1957 by the Soviet Union. The USSR later claimed it as its internal waters in 1984, drawing a 106 nautical mile line from its adjacent coast to enclose the bay.

Peter the Great Bay, a « historic bay »?

The 106-mile closure line is 47 miles off Vladivostok, a major Russian naval base. Is the decision to draw such a line contrary to Article 10 of the United Nations Convention on the Law of the Sea (UNCLOS)?

Under UNCLOS, the closure line cannot exceed 24 miles, unless it is a historic bay. After the fall of the Soviet Union, Russia continued to assert that Peter the Great is a « historic bay under international law ».

In 1910, the Permanent Court of Arbitration (PCA) defined 3 criteria in the North Atlantic Coast Fisheries Case to characterise a « historic bay »:

– Coastal State in a position to exercise one of the essential elements of sovereignty over the bay;

– use of a continuing historic right over the bay;

– admitted by treaty or international custom with other states.

With regard to these conditions, the Bay of Peter the Great meets two criteria: Russia is able to exercise sovereignty and has used a continuing historical right over the bay. Nevertheless, this right has not been legitimised by any international treaty or customary law.

Russian interpretation of innocent passage in territorial sea

However, the Russian Federation not only claims Peter the Great Bay as « historic », but also develops its own understanding of innocent passage in territorial waters and therefore in the approach to this area. This conception illustrates Russia’s broad interpretation of coastal state sovereignty. Some other states have also developed similar views which are not in line with Articles 17, 18 and 19 of UNCLOS.

The Russian Federation has defined specific requirements for passage through its territorial sea in its laws and regulations. One of the requirements for innocent passage through the territorial sea of the Russian Federation by warships or government vessels operating for non-commercial purposes is to send coordinate and time information to the nearest Russian coastal communication station one hour before the estimated time of entry into the territorial sea of the Russian Federation.

This requirement is intended to ensure the safety of navigation in the waters concerned. Attempts to pass without fulfilling these conditions would be considered as actions violating the peace, good order and security of the Russian Federation, infringing its sovereignty and territorial integrity. Rather, they appear to infringe on the right of innocent passage which does not require these conditions to enter the territorial sea of a State.

The necessary defence of freedom of navigation

This qualification as a « historic bay » is not endorsed by the other states. For the United States, this claim is incompatible with the rules of international law as reflected in the United Nations Convention on the Law of the Sea (1982). In their view, the Russian Federation has attempted to claim more internal waters than it is entitled to claim under international law. The US Navy has conducted few “freedom of navigation operations” (FONOPS) in this area (USS MC CAMPBELL in 2018). But these FONOPS tend to demonstrate that these waters beyond Peter the Great Bay do not constitute Russia’s territorial sea for the US, which does not agree with Russia’s claim to consider Peter the Great Bay as a historic bay.

France has taken the same position since 9th October 1957 and its official reaction to the Soviet Union’s declaration that it does not consider Peter the Great Bay a historic bay under international law. Furthermore, as elsewhere, France claims freedom of navigation on the high seas and the right of innocent passage in waters defined in a manner consistent with th

This qualification as a « historic bay » is not endorsed by the other states. For the United States, this claim is incompatible with the rules of international law as reflected in the United Nations Convention on the Law of the Sea (1982). In their view, the Russian Federation has attempted to claim more internal waters than it is entitled to claim under international law. The US Navy has conducted few “freedom of navigation operations” (FONOPS) in this area (USS MC CAMPBELL in 2018). But these FONOPS tend to demonstrate that these waters beyond Peter the Great Bay do not constitute Russia’s territorial sea for the US, which does not agree with Russia’s claim to consider Peter the Great Bay as a historic bay.

France has taken the same position since 9th October 1957 and its official reaction to the Soviet Union’s declaration that it does not consider Peter the Great Bay a historic bay under international law. Furthermore, as elsewhere, France claims freedom of navigation on the high seas and the right of innocent passage in waters defined in a manner consistent with the UNCLOS definition of the territorial sea.