диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 12

49.56Buzan B.G., Middlemiss D.W. Canadian Foreign Policy and Exploitation of the Seabed. - Canadian ForeignPolicy and the Law of the Sea. Eds. B. Johnson and M.W. Zacher. Vancouver: University of Britain ColumbiaPress, 1977. P. 36.52accurately) that they believe it to be part of the international customary law.

Infact, the US do not view the 1982 UNCLOS as custom in its entirety. After the 3rdUN Conference on the Law of the Sea had concluded, the US refused to view PartXI of the 1982 UNCLOS (on the “Area” as the “common heritage of mankind”) asjus cogens, that is, as comprising peremptory norms of international law fromwhich no derogation is permitted (Art. 53 of the 1969 Vienna Convention on theLaw of Treaties), irrespective of participation or non-participation in a specifictreaty providing for such a norm. According to the U.S.’ position, the “concept ofthe common heritage of mankind contained in the 1982 Convention adopted by theConference is not jus cogens”.

Accordingly, nor are the completely novel law ofthe sea provisions of Art. 76 of the 1982 UNCLOS 1982 on the geological,geomorphological, bathymetric and distance-related criteria for delineating thecontinental shelf of the coastal state beyond 200 miles from the baselines, from theArea. As noted by the US, the text of the 1982 UNCLOS and the negotiatingrecord at the 3rd UN Conference “demonstrate that a proposal by some delegationsto include a provision on jus cogens was rejected.”57 Save for the said novelprovisions of the 1982 UNCLOS, practically all of its other norms (including thoseabsent from the 1958 Geneva Conventions on the Law of the Sea, for instance, onthe EEZ) have been accepted by the US as rules “reflecting customaryinternational law”. Accordingly, such other rules of the 1982 UNCLOS arecurrently deemed binding on the US as well.58This is important for the scholarly answer to the question of whether theArea occurs in the Arctic Ocean.

Is it reasonable to create it in that region? Is iteven possible from the legal standpoint, given that the U.S. is not party to the 1982UNCLOS? Under the 1982 UNCLOS, the term “Area” means the floor of the seasand oceans and its subsoil “beyond the limits of national jurisdiction” (Art. 1);from legal point of view the “Area” is the “common heritage of mankind” – a new57Third United Nations Conference on the Law of the Sea. Doc.A/CONF.62/WS/37; Add.1-2. P. 243.58Armando R. United States Policy in the Arctic / Environmental Security in the Arctic Ocean / Ed. by P.A.Berkman and A.N.

Vylegzhanin. Cambridge: Springer, 2013. P. 86.53notion for the law of the sea (never occurring in the 1958 Geneva Conventions)that denotes the seabed beyond the continental shelf of each of the coastal statesthat delimited it according to Art. 76 of the 1982 UNCLOS. But the procedure ofdelimitation can only be completed by way of submitting data on such boundaries(beyond the 200-mile limit) to the CLCS by state parties to the 1982 UNCLOS.This way, the ocean in question (here, the Arctic Ocean) would still have certainlimits of the Area “unlocked”, since the U.S. – as the Arctic coastal state that – isnot a party to the 1982 UNCLOS and would be unable to delineate the U.S.

Arcticshelf from the Area.Thus, in addition to the question of whether the creation of the Area in theArctic Ocean corresponds to the interests of the “Arctic five”, there is anotherquestion – whether there is the Area in the Arctic Ocean (with limits that remainundefined conclusively) from the standpoint of the international customary law?Given also that the Area is not considered as the object of international customarylaw, unlike the Arctic “lands and islands” which are recognized as objects ofinternational customary law.

This question is not discussed in the works of theforeign lawyers cited above. They rather tend to debate other matters, including onthe role of the CLCS.In accordance with the 1982 Convention, the CLCS is a technical bodycomposed of twenty-one experts in “in the field of geology, geophysics orhydrography” (Art. 2 of Annex II to the UNCLOS). Their function as per the 1982UNCLOS is to examine whether the data on the outer limits of the continentalshelf (beyond the 200-mile threshold) that coastal states file with the Commissionmeet the criteria for delineation from the Area set forth in Art.

76 (Art. 3 of AnnexII). But some legal scholars interpret these modest functions outlined in the 1982UNCLOS broadly, arguing that the coastal states must bear the “burden ofdemonstrating of [their] entitlement to the outer continental shelf” before theCommission. 59 Such a broad role of the Commission, unjustified from the59Eiriksson G. The Case of Disagreement between a Coastal State and the Commission on the Limits of theContinental Shelf. M. Nordquist et al.

(eds). Legal and Scientific Aspects of Continental Shelf Limits. Leiden,Martinus Nijhoff. 2004. P. 258.54perspective of the 1982 UNCLOS, is rejected by Professor B. Magnusson(Iceland), whose book was published both in Boston (US) and in Europe. ProfessorMagnusson specifically notes, that «the Commission is a specialist body with alimited mandate to consider data and other material submitted by coastal States”under Art. 76 and Annex II of UNCLOS.60 Nothing more – I agree with Prof.Magnusson.This cautious approach is to some extent supported in another foreign legalstudy. Its author recalls that under Art.

76 of the 1982 Convention, the limits of theshelf (beyond 200 miles) established by the coastal state based on theCommission’s recommendations, “shall be final and binding”. At the same time,he underscores that this is true not only for the boundaries recommended by theCommission. In support, he refers to a 2012 decision by the International Tribunalfor the Law of the Sea (hereinafter, the ITLOS) in a dispute between Bangladeshand Myanmar.61 One of the reports dispels the myth that only the Commission’srecommendations allegedly make the limits of the shelf (beyond 200 miles)definitive and mandatory for all: it states that “[a] continental shelf boundary thathas not been established on the basis of the recommendations of the Commissionmay still become final and binding… depending on the further actions of thecoastal State and other States.”62Against this background, the delimitation between the Arctic states of theircontinental shelf beyond 200 miles off the baselines without approaching theCommission is the hottest question for the English - American international legalliterature.

The normative input is provided by Art. 76(10): “The provisions of thisarticle are without prejudice to the question of delimitation of the continental shelf60Magnusson B.M. The Continental Shelf beyond 200 Nautical Miles. Delineation. Delimitation and DisputeSettlement. Leiden, Boston: Brill Nijhoff, 2015. P. 40.61Kunoy B.

The Admissibility of a Plea to an International Adjudicative Forum to Delimit the Outer ContinentalShelf Prior to the Adoption of Final Recommendations by the Commission on the Limits of the Continental Shelf /The International Journal of Marine and Coastal Law. 2010 (25). P. 7.62First Report of the ILA Committee examining legal aspects related to article 76 of the Convention. Cf.: Kynoy B.The Admissibility of a Plea to an International Adjudicative Forum to Delimit the Outer Continental Shelf Prior tothe Adoption of Final Recommendations by the Commission on the Limits of the Continental Shelf / TheInternational Journal of Marine and Coastal Law. 2010 (25). P.

7.55between States with opposite or adjacent coasts.” Does this signify that such statesmay delimit their shelf without referring to the Commission to delineate their shelffrom the Area, as required by the preceding paragraphs of the same Article?The opinions of foreign legal scholars on the above question vary.

B. Kunoywrites that 1) the delineation of the shelf from the Area under Art. 76, and 2) thedelimitation of the shelf under Art. 83 between neighbouring states beyond 200miles are two interconnected operations, and performing them is subordinated totwo steps – rule according to which recommendations of the Commission anddelimitation are not only two separate steps “but also temporally differentiated”,that is the second step is to follow the first.63 According to the author, the coastalstate must first file the data on the outer limits of its shelf beyond 200 miles underArt.

76, and only then would it be entitled to delimit its shelf with a neighbouringstate.64This interpretation of the applicable law is thoroughly and persuasivelycriticized by Professor B. Magnusson (Iceland), who caught his Danish colleague“ignoring” Art. 76(10) of the 1982 UNCLOS cited above, as well as Art. 9 of IIthereto – to the effect that “the actions of the Commission shall not prejudicematters relating to delimitation of boundaries between States with opposite oradjacent coasts”.

It would be more correct, according to B. Magnusson, to see nottwo successive, temporally differentiated stages of delimitation of the outer limitsof the continental shelf, but rather to see the two sides of such delimitations: 1)delimitation between the continental shelf and international sea-bed area andand/or 2) delimitation of the continental shelf between States with opposite oradjacent coasts. The first side of delimitation of the limits of the shelf, at that,“cannot affect the second one”, and vice versa, which that scholar believes to bethe point of Art. 76(10) cited above.6563Kunoy B.

Op. cit. P. 237.64Ibid., P. 238.65Magnusson B. Is there a Temporal Relationship between the Delimitation and the Delineation of the ContinentalShelf beyond 200 Nautical Miles? / The International Journal of Marine and Coastal Law. 2013. No. 28. P. 467.56The interpretation suggested by Professor Magnusson, it appears,corresponds to the doctrinal explanation of Art. 76 given in the multi-volumeCommentary to the 1982 UNCLOS drafted by a group of foreign internationalscholars.