диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 14

6 in the French Official Gazette.73Colson D. The Delimitation of the Outer Continental Shelf between Neighboring States / American Journal ofInternational Law. 2003. P. 96-97.59seabed area envisaged in Art. 76(8) and (9), “cannot be invoked where thedelimitation of the continental shelf is concerned.”74It is particularly important to emphasize here that there already exists a fairlyrepresentative body of case law on disputes on the delimitation of the continentalshelf beyond 200 miles off the baselines.In the already cited international arbitral award in the dispute betweenBarbados and the Republic of Trinidad and Tobago, the arbitral panel found itselfcompetent to examine the issue of “delimitation of the maritime boundary inrelation to that part of the continental shelf extending beyond 200 nm.”75 But itabstained from drawing that delimitation line, since the parties did not ask it todraw a “single maritime boundary” (i.e., one delimiting the areas and continentalshelf and the 200-mile EEZ between the two states), while, apparently, the tribunalfound that “as between Barbados and Trinidad and Tobago, there is no singlemaritime boundary beyond 200 nm.”76In an international arbitral award in a dispute between Guyana andSuriname, the arbitral panel found that the parties had “not invited [the Tribunal] todelimit maritime areas beyond 200 miles from the baselines of Guyana andSuriname.” Therefore, the tribunal was “not concerned with matters concerning thedelimitation” of such areas of continental shelf.77Given the foregoing, B.

Kunoy writes that both tribunals had “at theconceptual level” recognized the request of various coastal states to delimit thecontinental shelf beyond the 200-mile limit.78An even clearer opinion on these awards is supplied by Professor B.Magnusson. According to him, the international arbitration court was of the74Elferink A., Johnson C. Submissions to the CLCS in Cases of Unresolved Land and Maritime Disputes: theSignificance of Article 76 (10) of the LOS Convention / Paper presented at SLS and BIICL Symposium on the Lawof the Sea. London. 22 – 23 March 2005.

P. 2-3.75In the Matter of an Arbitration between Barbados and the Republic of Trinidad and Tobago (Barbados v. Republicof Trinidad and Tobago). Arbitration Tribunal. 2006. 45 ILM 800, 835. Para. 217.76Ibid., P. 856, para. 368.77Guyana and Suriname (Guyana v. Suriname) Arbitration Tribunal. 2007. 47. ILM 166, 215, para. 353.78Kunoy B. The Admissibility of a Plea to an International Adjudicative Forum.

P. 257.60opinion that generally it has competence to delimit the continental shelf beyond the200-mile limit; and it would have done it, had the parties to the dispute seized itwith that task. 79 The scholar proceeds from the same understanding of theapplicable law in evaluating the ICJ judgment in a territorial and maritime disputebetween Nicaragua and Honduras, rendered in 2007.

In that decision, the Court, intrying the specific dispute between the said states, noted “in this regard that in nocase may the line be interpreted as extending more than 200 nautical miles fromthe baselines from which the breadth of the territorial sea is measured.”80Commenting on this statement, Professor B. Magnusson explains, that theParties in the dispute between Nicaragua and Honduras did not ask the Court todelimit the continental shelf beyond 200 miles from the baselines.

But, as hefurther observes, this statement of the court cannot be interpreted in the sense, as ifthe Court decided.81The majority of foreign scholars representing the English and Americandoctrines of international law on the status of the Arctic believe the mostcomprehensive and authoritative source applicable to the matters of delineationand delimitation of shelf to be the 2012 ITLOS decision in a dispute betweenBangladesh and Myanmar.Indeed, in this case, the Tribunal made a number of pivotal legalconclusions.First, to the effect that it had jurisdiction over a dispute on the delimitationof the continental shelf beyond the 200-mile limit and, in that particular case,where the CLCS had not issued recommendations on the data on the outer limits ofthe shelf beyond the 200-mile distance from the baselines submitted by states:79Magnusson B.

Is there a Temporal Relationship…? P. 474.80Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.Honduras). Judgment. 2007. ICJ Rep. 659, 759. Para. 319.81Magnusson B.M. Is there a Temporal Relationship…? P. 475.61“[T]he Tribunal concludes that… it has an obligation to adjudicate the dispute andto delimit the continental shelf between the Parties beyond 200 nm.”82Second, the Tribunal deemed it necessary to “to make a distinction betweenthe notion of entitlement to the continental shelf beyond 200 nm and that of theouter limits of the continental shelf.”83 The title, or the basis of the rights tocontinental shelf, according to the Tribunal, does not depend on the procedures ofaddressing the CLCS.

In support, the Tribunal relied on Art. 77(3) of the 1982UNCLOS, pursuant to which the rights of the “coastal State over the continentalshelf do not depend on occupation, effective or notional, or on any expressproclamation.” Unlike the procedure for determining the outer limits of the shelfunder Art. 76(8) of the 1982 UNCLOS, here, it is the procedure for submitting dataon such limits to the Commission that matters.As emphasized by the Tribunal, “[a] coastal State’s entitlement to thecontinental shelf exists by the sole fact that the basis of entitlement, namely,sovereignty over the land territory, is present.

It does not require the establishmentof outer limits.”84 In that case, the Tribunal seems to have absolutely consistentlysupported, in the words of the ICJ, “the most fundamental of all the rules of lawrelating to the continental shelf” – namely, the rule that the coastal state’s rights tothe shelf “exist ipso facto and ab initio, by virtue of its sovereignty over theland.”85Elaborating on that approach, the Tribunal emphasized that “the fact that theouter limits of the continental shelf beyond 200 nm have not been established doesnot imply that the Tribunal must refrain from determining the existence ofentitlement to the continental shelf and delimiting the continental shelf between theparties concerned.” 86 The Tribunal pointed out that, “[a]s the question of the82Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay ofBengal (Bangladesh v.

Myanmar). Judgment. 2012. Para. 394.83Ibid., P. 119. Para. 406.84Ibid., Para. 409.85ICJ Reports. 1969. P. 22.86Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay ofBengal (Bangladesh v. Myanmar). Judgment.

2012. Para. 410.62Parties’ entitlement to a continental shelf beyond 200 nm raises issues that arepredominantly legal in nature, the Tribunal can and should determine entitlementsof the Parties in this particular case.”87Professor B. Magnusson (Iceland), in commenting on this decision of theITLOS in the context of other international judgments and arbitral awards onsimilar disputes, as well as the treaty practice of states for the delimitation of shelfbeyond the 200-mile limit, makes a theoretically and practically relevantconclusion that “coastal states need not wait for the recommendations of the CLCSfor applying to the International court or Tribunal for the delimitation of thecontinental shelf beyond 200 miles.88 Let me add to that correct observation: also,so as to carry out such delimitation not by way of addressing international courtsand tribunals, but by way of direct negotiations between the states with opposite oradjacent coasts.So, different Anglo-American (or English speaking) scholars who arespecialists in international law have different legal positions regarding the questionof relations between articles 76 and 83 of UNCLOS.

The prevailing opinion ishowever that according to article 83 States with opposite and adjacent coasts havethe legal right to delimit the continental shelf beyond 200 nautical miles withoutCLCS. And a growing treaty practice of States which have already made such adelimitation is an argument supporting this prevailing opinion.The focus in the Anglo-American doctrines on the status of the Arcticconcerning the issues of the legal regime of the Arctic shelf, the interpretation ofthe 1982 UNCLOS rules on the delimitation of continental shelf and its delineationfrom the international seabed area, stands in stark contrast with the significantlylesser attention given by foreign scholars to the legal aspects of drawing baselinesalong the Arctic coasts of Canada, Denmark, Norway, Russia, and the U.S.87Ibid., Para.

413.88Magnusson B. Is there a Temporal Relationship…? P. 482.63CHAPTER 2. BASELINES ALONG THE ARCTIC COAST(INTERNATIONAL LEGAL ANALYSIS OF FOREIGN PRACTICES OFDRAWING STRAIGHT BASELINES IN THE ARCTIC)This chapter of the dissertation discusses, in the context of the respectiveopinions set out in the international law doctrines (primarily Anglo-Americanones), the current practice of states in the field of interpretation and application ofinternational legal rules on drawing baselines along the Arctic coast, including thatof the Spitsbergen islands.

Such baselines are necessary to calculate the breadth ofthe territorial sea, of the EEZs and continental shelf of the Arctic States. Specialnotice is given to doctrinal identification of the applicable international customaryrules, in light of the unique characteristics of the legal regime of the Arctic Oceanareas; as well as to the comparative legal analysis of the official publications byCanada, Norway, Denmark, and Iceland of geographic data on the baselines alongtheir Arctic coast. Briefly, I will also summarize the ICJ’s interpretation of theinternational law on baselines, since most members of the Court represent theEnglish-language scholarship of international law.

I will give a characteristic to thecontribution of the UN International Law Commission (hereafter also - the ILC) tothe codification and progressive development of the international law applicable todrawing baselines.English specialists on the law of the sea usually link the legal aspects ofdrawing baselines with a problem of “excessive claims” to maritime space.According to one of the authors, “abuse of the straight baseline provision inArticle 7 of UNCLOS is the most common cause for concern. Straight baselinesmay be drawn where the coastline is deeply indented and cut into, or if there is afringe of islands in the immediate vicinity… Moreover the drawing of straightbaselines must not depart to any appreciable extent from the general direction ofthe coast.“Unfortunately none of these geographical terms are defined in UNCLOS,and states interpret them in all kinds of geographical settings to their own64advantage.

Around Korea, Vietnam, Burma, and several other states large areashave been enclosed by straight baselines to become the internal waters of thecoastal state. Some courageous attempts have been made to set out specific rulesbut they have never been adopted. If the process continues unchecked it willconstitute a considerable reduction in freedom of navigation. By 1994 more than60 states had declared straight baselines, and 10 had unpublished claims. Twentyseven are regarded as “excessive” by the United States. While the United Statesarguably applies rather strict interpretations of Article 7, there can be no doubt thatmany claims are excessive.”89The English author who is cited above does not consider the relevantpractice of Arctic states.