диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 13

According to the Commentary, Art. 76(10) is a “saving provision for allquestions regarding the delimitation of overlapping claims between States tocontinental shelf. It provides that the determination of the outer limits of thecontinental shelf is without prejudice to the delimitation… that article 76prescribes the method of determining the outer limits of the continental shelf itdoes not address in any way the question of delimitation of the continental shelfbetween opposite or adjacent States, which is addressed exclusively in article 83”of the 1982 UNCLOS.66The word “exclusively” is crucial in this context. This is the wording thatemphasizes, in an analysis of Art.

76 and 83 of the 1982 UNCLOS, that theprovisions of Art. 76 are entirely irrelevant for the delimitation of continental shelfbetween neighbouring states, including beyond 200 miles off the baselines. Thewording “for all questions regarding the delimitation” also denotes the instanceswhere shelf is delimited beyond the 200-mile distance, including where one of thestates delimiting the shelf is not party to the 1982 UNCLOS. This essentialstatement is further reinforced by the authors of the Commentary by a reference toArt. 134(4) of the 1982 UNCLOS, according to which nothing in its Part XI (“TheArea”) “affects the establishment of the outer limits of the continental shelf… orthe validity of agreements relating to delimitation between States with opposite oradjacent coasts”.

67 That the Commentary authors replaced the words “in thisarticle” appearing in the Convention with the words “in Part XI” is also verytelling.The strong point of studies of the above issue in the works on internationallaw published in English, especially in the publications by Professors A. Elferink66UN Convention on the Law of the Sea 1982. A Commentary. Ed.-in-Chief.

M.H. Nordquist. Vol. II. MartinusNijhoff Publishers. Dordrecht. Boston. London. 1993. P. 883.67Ibid.57(the Netherlands), S. Johnson (Australia), B. Magnusson (Iceland), M. Byers(Canada), and the American lawyer and diplomat D. Colson, is their analysis of thetreaty practice of states related to the delimitation of continental shelf beyond the200-mile limit.

Here, it is notable that the results of their analysis lead the authorsboth to coinciding and varying statements on the law. Thus, Professor M. Byers,too, believes that by now the treaty practice of states related to the delimitation ofcontinental shelf beyond the 200-mile limit, “remain[s] too limited”, to ensure any“legal clarity”.68 Here, however, the author also names six treaties providing for aline delimiting areas of continental shelf beyond 200 miles between twoneighbouring states.69In contrast with that statement, Professor B. Magnusson (whose work waspublished in the same year) writes, that more than a dozen States have alreadydelimited their continental shelf with neighbouring States beyond 200 nauticalmiles.70 Noting that most part of such delimitation agreement was concluded byStates – Parties to the 1982 UNCLOS, the author stresses that although such casesrelated to the delimitation of continental shelf beyond the 200-mile limit withoutreceiving the preliminary recommendations from the CLCS (as per Art.

76 of theUNCLOS), nevertheless, “this practice has not been protested against by anystate.”71 Such already impressive treaty practice of states for the delimitation of thecontinental shelf based on Art. 83 of the UNCLOS that reflects customaryinternational law, “without any involvement of the CLCS”, is discussed by theauthor, who also cites the precise titles and dates of numerous treaties.7268Byers M. International Law and the Arctic. Cambridge University Press. Cambridge. UK. New York. USA.

2013.P. 74.69Ibid., P. 71.70Magnusson B. Is there a Temporal Relationship…? P. 471.71Ibid., P. 472.72Ibid., P. 472-473: Agreement between The Gambia and the Republic of Senegal (adopted 4 June 1975; enteredinto force 27 August 1976) Limits in the Seas No. 85 (1979). See Preliminary Information Indicative of the OuterLimits of the Continental Shelf and Description of the Status of Preparation for Making a Submission to theCommission on the Limits of the Continental Shelf for the Republic of Gambia (4 May 2009), 7; Documentd’Informations Preliminaires Indicatives sur les Limites Exterieures du Plateau Continental et Description de l’Etatd’Avancement du Dossier et Prevision de Date а Laquelle Sera Soumis le Dossier National а la Commission desLimites du Plateau Continental des Nations Unies (12 May 2009) 9 (1975/2009 Gambia-Senegal Agreement);Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime58An American lawyer and diplomat, D.

Colson, notes in his article thatfollowing his analysis of the first seven of the treaties on the delimitation of shelfbeyond 200 miles off the baselines, he found that such treaties have certaincommon features, one of which is that the principles, methods and criteria for thedelimitation of shelf applied by states within 200 miles, are not altered fordelimitation of the shelf beyond the 200-mile distance. Moreover, the criteria fordelineation of shelf from the “common heritage of mankind” set forth by Art. 76 ofthe 1982 UNCLOS, although they were considered in determining how far theshelf stretched out, in no way affected the location of the demarcation line.73Director of the Netherlands Institute for the Law of the Sea, Professor A.Elferink, and his colleague at the same Institute, an Australian lawyer S.

Johnson,in reviewing the practice of states, including those that liaise with the CLCS, havenoted that under Art. 76(10) of the UNCLOS, the rest of the provisions of thatArticle, including the criteria for the delineation of shelf from the internationalBoundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters(adopted 18 December 1978; entered into force 15 February 1985) 18 ILM 291; Agreement on Marine Delimitationbetween the Government of Australia and the Government of the French Republic (adopted 4 January 1982; enteredinto force 9 January 1983) 1329 UNTS 107; Agreement between the Government of the United Kingdom of GreatBritain and Northern Ireland and the Government of the Republic of Ireland Concerning the Delimitation of Areasof the Continental Shelf between the Two Countries (adopted 7 November, 1988; entered into force 11 January1990) 13 LOSB 48; Agreement between the Government of Solomon Islands and the Government of AustraliaEstablishing Certain Sea and Sea-bed Boundaries (adopted 13 September 1988; not in force) 12 LOSB 19; Treatybetween the Republic of Trinidad and Tobago and the Republic of Venezuela on the Delimitation of Marine andSubmarine Areas (adopted 18 April, 1990; entered into force 23 July 1991) 1654 UNTS 300; Agreement Betweenthe United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary (adopted 1June 1990; entered provisionally into force 15 June 1990; not in force) 29 ILM 941 (1990 USA-USSR Agreement);Treaty between the Government of Australia and the Government of the Republic of Indonesia Establishing anExclusive Economic Zone Boundary and Certain Seabed Boundaries (adopted 14 March 1997; not in force) 36 ILM1053; Treaty between the Government of the United States of America and the Government of the United MexicanStates on the Delimitation of the Continental Shelf in the Western Gulf of Mexico beyond 200 Nautical Miles(adopted June 9, 2000; entered into force 17 January 2001) 2143 UNTS 417; Treaty between the Government ofAustralia and the Government of New Zealand Establishing Certain Exclusive Economic Zone Boundaries andContinental Shelf Boundaries (adopted 25 July 2004; not in force) 55 LOSB 40; Agreement between the UnitedRepublic of Tanzania and the Republic of Kenya on the Delimitation of the Maritime Boundary of the ExclusiveEconomic Zone and the Continental Shelf (adopted 23 June 2009; not in force) 70 LOSB 54 (2009 Kenya-TanzaniaAgreement); Agreement between the Government of the French Republic and the Government of Barbados on theDelimitation of Maritime Areas between France and Barbados (adopted 15 October 2009; not in force) ORF no.0016 20 January 2010, 1176 text no.