диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 15

That is done in another book – on polar maritimedelimitation published in the Hague, New York and London in 2001. According tothe author, among “the Arctic coastal States only the United States applies thebaselines of the low-water mark along the whole extent of its coastline, includingAlaska.”However, “closing lines are established by the United States only in the caseof the so-called juridical bays, that is bays which comply with the precisegeometric criteria set forth in the Convention on the Territorial Sea”, (the authorspeaks about the Geneva Convention on the Territorial Sea and the ContiguousZone, 1958, Article 7; and the same is true in the context of UNCLOS, Article10).90The author, however, does not take into account the relevant provisions ofthe commentary to the UNCLOS which will be considered further in thisdissertation. What is even more remarkable, is that the author provides a very briefanalysis of the fact that by “a Decree of 15 January 1985 of the Council of89Blake G.H.

Maritime boundaries. / The Oceans: Key Issues in Marine Affairs, Kluwer Academic Publishers. Ed.H.D. Smith. Printed in the Netherlands. P. 73.90Scovazzi T. The Baseline of the territorial sea: The practice of Arctic states/The Law of the Sea and MaritimeDelimitation and Jurisdiction. Ed. A.G.O. Elferink and D.R. Rothwell. Martinus Nijhoff Publishers. 2001. P.

69.65Ministers the Soviet Union established straight baselines along the coast in theArctic Ocean.”91The author does not explain why the USSR established such baselines onlyin the perestroika period. Nor does the author link this fact with the end of theSoviet doctrine of historic title relating to the Kara, Laptev, East Siberian andChukchi Seas. Instead he notes: “The United States protested against the Sovietstraight baselines system.”92At the same time, the author correctly draws the opposite conclusion, whichwas done by another English-speaking specialist in International Law, Dr. D.Brubaker: “After a thorough analysis, the following conclusion has been reachedon this legislation:… though many of these enclosures by straight baselines and closing linescertainly fail the traditional criteria for establishing straight baselines andbasepoints as well as the traditional criteria for enclosing bays, due to the moderateState practice which is largely unopposed by other States, Russian practice withregard to the establishment of straight baselines and closing lines in the Arctic,opposed only by the U.S., cannot be said to be inconsistent with internationallaw.”93In my opinion, the Russian Decree of 1985 establishing both normal andstraight baselines along the Arctic coasts and the relevant practice of Norway,Denmark and Canada (these countries established only straight baselines alongtheir Arctic coasts) deserve more detailed analysis.As already noted above, the continental coast of Russia in the Arctic Oceanis the longest in the world, hence for Russia, the issue of specifying the acceptableinternational legal means for drawing baselines along its Arctic coast is a big one,related to the spatial limits of its sovereignty in the Arctic.

This statement isindisputable, if we understand the term the “Arctic Ocean” as used in the current91Ibid., P. 81.92Ibid., P. 83.93D. Brubaker The Legal Status of the Russian Baselines in the Arctic 1996. Cited by Scovazzi T. Op. cit. P. 81.66scholarship, namely, as a term outlined in the book by Professor V.L. Lakhtinpublished by the People’s Commissariat of Foreign Affairs of the USSR in 1928,cited above;94 namely, as all water, ice, underwater and subglacial parts of theWorld Ocean situated north of the 66° 33' north latitude – that is, from the ArcticCircle.That Russia possesses such a long coastline in the Arctic Ocean, in turn, is afact relevant to title. It is due to that fact that Russia holds here the most expansiveareas under its sovereignty (the internal sea waters, the territorial sea) andjurisdiction (the EEZ, the continental shelf).95 The breadth of all these maritimeareas is measured from the baselines.Under international law, the coastal state shall apply 1) normal baselines,that is, the low-water lines along its coast; and, 2) straight baselines, connectingthe furthest seaward points of the coast designated by the coastal state.

Theinternational law on baselines is found in 1) international custom; 2) internationaltreaties, first and foremost, in the UN Convention on the Law of the Sea of 1982,(hereinafter, the 1982 UNCLOS) and the Convention on the Territorial Sea andContiguous Zone of 1958. Under the 1982 UNCLOS, “a normal baseline” of a stateis deemed to be “the low-water line along the coast as marked on large-scale chartsofficially recognized by the coastal State”, “except where otherwise provided inthis Convention” (Art. 5, 1982 UNCLOS).

The UNCLOS provides for thepossibility of drawing “straight baselines” as well, principally “[i]n localitieswhere the coastline is deeply indented and cut into, or if there is a fringe of islandsalong the coast in its immediate vicinity”, through certain points, without“depart[ing] to any appreciable extent from the general direction of the coast” andwhile maintaining a “close link” of the waters included as internal waters, with theland domain (Art. 7, 1982 UNCLOS). Similar rules are contained in an earlier94Lakhtin V.L. Prava na severnye polyarnye prostranstva [Title to the Northern Polar Territories].

Izdanie LitizdataNarodnogo Komissariata po Inostrannym Delam. М. 1928. 48 P.95For more details, see Vylegzhanin A.N. Pravovoe polozhenie Arkticheskogo regiona v dokumentakh [Documentson the Legal Status of the Arctic Region]. / Arkticheskii region: problemy mezhdunarodnogo sotrudnichestva [TheArctic Region: Issues of International Cooperation]. Vol. 3.

Primenimye pravovye istochniki [Applicable Law]. М.2013. P. 11-44.67source already referred to above, the 1958 Convention on the Territorial Sea andContiguous Zone (hereinafter, the 1958 Convention on the Territorial Sea), in itsArt. 3 and 4.The issue of correlation of the customary and treaty regulation of interstaterelations concerning state activities in the Arctic, including as to drawing baselinesin that region, is debatable both in terms of theory and practice, especially in thecontext of differences between the official position of the U.S., on the one hand,and the positions of Canada and other Arctic states, on the other hand.

At present,the problem of enforcing international and domestic rules on baselines in theArctic Ocean is paramount for the Russian Federation. If Russia follows Norway,Denmark, and Canada and wishes to take steps to increase its maritime territory inthe Arctic by laying the said straight baselines, that would be reasonable to doprecisely in the years to come, before the high-latitude ice “cap” becomes smaller,causing international navigation in the Arctic region to intensify dramatically.Such steps, as shown here, must be taken against the backdrop of correctinterpretation of the applicable international legal rules and subject to the creativeadaptation of the respective foreign practices, primarily of Canada, Norway, andDenmark as Russia’s and America’s neighbouring states coastal to the ArcticOcean with adjacent or opposite (to Russia) Arctic coasts.At the same time, one has to take account of the substantive differences inthe positions of Russia and the U.S.

on baselines. Unlike other states, whose coastsopen to the Arctic Ocean and that have their territorial sea and continental shelfhere, the U.S. takes the stance that baselines, including along the Arctic coast,should be drawn solely along the low-water line. Despite that position of the U.S.,three other Arctic states (Norway, Canada, and Denmark) have established straightbaselines along all of their Arctic coasts, while Russia did so to the extentcorresponding to the applicable international law, that is, first and foremost,subject to the geographic characteristics of the coast, economic factors, historictitle, interests of defence, and other special circumstances.

The characteristic of the68international legal grounds for drawing baselines, both normal and straight, isfound in a number of academic works.96The Arctic states’ practice of drawing baselines is at times ratherindividualized, and sometimes similar.

But it is that regional practice – includingin other areas, especially environmental protection – that largely affects theevolution of the legal status of the modern Arctic.Both the Russian and Anglo-American international law doctrines97 starttheir review of the international legal bases for drawing baselines from the mainsource of the existing international law, that is, the applicable international custom.Here, special attention is given to documents adopted by the International LawCommission, an auxiliary body established by the UN General Assembly to assistthe codification and progressive development of international law. Thisdissertation will aim to supplement this with a study of the most representativeinternational commentary to the 1982 UNCLOS articles, being the most relevant tothe topic at hand.Since one of the peculiarities of the legal regime of the Arctic Ocean is itskey role in the formation of the national legal positions and legal practice of theArctic coastal states, this work will analyse and compare such positions and thepractice of the Russian Empire and the Soviet Union with respect to the status ofthe Arctic as a whole, and, in particular, in terms of drawing baselines alongRussia’s Arctic coast.