диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 16

Then I will demonstrate, in the context of the economic,geographic, and legal characteristics of Russia’s Arctic coast, as well as therelevant historic titles, that treaty provisions on straight baselines do apply to thatcoast. The key component of this chapter, however, is the comparative legalanalysis, in the context of Russian and Anglo-American international law96See, e.g.: Novoe v mezhdunarodnom morskom prave [The New in the International Law of the Sea]. Ed. by S.L.Zivs, B.D.

Klyukin, B.M. Klimenko, L.V. Speranskaya, M.I. Lazarev. Мoscow. 1972. P. 117-139. Kolodkin A.L.Pravovoi rezhim territorial’nykh vod i otkrytogo moray [The Legal Regime of Territorial Waters and the HighSeas]. Мoscow. 1961. P. 21-24. Vylegzhanin А.N., Gureyev S.А., Ivanov G.G. Mezhdunarodnoe morskoe pravo[International Law of the Sea]. Moscow. 2003. P.75-95. A.G.O. Elferink, D.R. Rothwell. «The Law of the Sea andPolar Maritime Delimitation and Jurisdiction». Martinus Nijhoff Publishers.

The Hague. 2001. P. 68-84.Vylegzhanin А.N. K tolkovaniyu mezhdunarodno-pravovykh postanovlenii ob iskhodnykh liniyakh [InterpretingInternational Legal Rules on Baselines]. / Moscow Journal of International Law. No. 2. 2011. P. 3-22.97See: Churchill R.R. and Lowe A.V. The Law of the Sea.

Third Edition. 1999. P. 31-59.69doctrines, of the rationale underlying the official positions of foreign Arctic stateswith respect to their drawing straight baselines, and primarily those of Iceland,Denmark (in relation to Greenland), Canada, and Norway. I will supply a legalqualification in Anglo-American and Russian doctrines of the special issue onNorway’s drawing, exclusively, straight baselines along the coast of theSpitsbergen archipelago. On that basis, I will propose a doctrinal list ofgeographic, economic, and international legal factors that might be considered inspecifying the location of the baselines along Russia’s coast in the Arctic Oceanseas.§1. International law rules applicable to drawing baselines by coastalstatesThe procedure for drawing baselines by states is defined both in treaties andinternational custom.

Treaty rules have already been discussed above. As tocustomary rules, as we know, international custom is a rule of conduct that,according to the ICJ Statute and the Nicaragua case of 1986, comprises twoelements: 1) the objective element (“general practice”) and 2) the subjectiveelement (it being “accepted as law”).

That is, international custom includes rulesthat emerge gradually as a result of consistent actions by states (state practice) andare deemed legally mandatory, that is, as the ICJ noted in Libya v. Malta (1985),there exists opinio juris — an opinion or belief of states that such rules areobligatory. As to state practice, according to five ICJ judges writing in 1973, suchpractice must be “general, consistent and cohesive.”98Identifying the exact meaning of treaty rules of international law istechnically easier: the texts of the respective treaties are openly accessible today,so the task in this case boils down most frequently to interpreting them correctly.For that, there are already in place the rules set forth first of all by the ViennaConvention on the Law of Treaties of 1969 (the VCLT).98See: Vylegzhanin A.V., Kalamarkyan R.A. Mezhdunarodnyi obychai kak osnovnoi istochnik mezhdunarodnogoprava [International Custom as the Main Source of International Law].

Gosudarstvo i parvo [Journal of State andLaw]. 2012. No. 6. P. 78-89.70To establish that an international custom exists and to correctly determine itsmeaning, it is common to resort to analysing the subsidiary sources of internationallaw, and, above all, ICJ judgments. In the North Sea Continental Shelf cases of1969 (Federal Republic of Germany/Denmark and Federal Republic of Germany/Netherlands), the ICJ emphasized the need for the two preconditions for acustomary rule to emerge. According to the Court, “not only must the actsconcerned amount to a settled practice, but they must also be such, or be carriedout in such a way, as to be evidence of a belief that this practice is renderedobligatory by the existence of a rule of law requiring it.

The need for such a belief,i.e., the existence of a subjective element, is implicit in the very notion of theopinio juris sive necessitatis. The States concerned must therefore feel that they areconforming to what amounts to a legal obligation.”Art. 38 of the ICJ Statute (an integral part of the UN Charter) defines customas “evidence of a general practice accepted as law”. In the Nicaragua v. the UScase of the ICJ (1986) mentioned above, the Court, in interpreting this provision ofthe Statute, observed, “Where two States agree to incorporate a particular rule in atreaty, their agreement suffices to make that rule a legal one, binding upon them;but in the field of customary international law, the shared view of the Parties as tothe content of what they regard as the rule is not enough. The Court must satisfyitself that the existence of the rule in the opinio juris of States is confirmed bypractice.” To deem a specific rule of conduct an international custom and toidentify its precise meaning, it is general practice to use other subsidiary means forthe determination of international law rules as well, as defined in the ICJ Statute.Formerly, these were deemed to include primarily the “teachings of the mosthighly qualified publicists of the various nations”, whereas now it is the ICJ andITLOS judgments that are cited more widely.The issue of international legal rules on baselines was analysed in detail bythe ICJ in the Fisheries case (United Kingdom v.

Norway, 1951), more oftenreferred to by scholars as the baselines case. In that dispute between the two states,the ICJ mostly resolved matters of lawfulness of Norway’s drawing of straight71baselines to measure the breadth of its territorial sea and fishing zone. That ICJjudgment is the “juridical classic”, and it is relied on by states in support of theirpositions on baselines; the judgment is also cited in the doctrine of internationallaw.99As found by the Court, a Decree issued by the King of Norway on 12 July1935 provided for straight baselines to measure the breadth of that state’s territorialsea. Pursuant to the Decree, those straight lines joined the furthest seaward pointsof the mainland coast, as well as the points of the “skerry belt” of Norway’snorthern coast. There, the said points were selected not only from the mainlandpart of the country’s coast, but also on islands and even low-tide rocks.

Accordingto Norway’s legislation, the breadth of territorial sea at that time equalled 4nautical miles; the same held true for its fisheries zone. Following the process ofnegotiations, however, the Norwegian Government notified that it would treat[foreign fishermen] with restraint.

From 1948 on, the Norwegian authorities ceasedthat “restraint” in ensuring enforcement of the 1935 Decree and started taking strictmeasures to prevent violations of the limits of the fishing zone as defined in theDecree, given the straight baselines set forth therein. British trawlers were beingarrested. In response, in September 1949, the UK initiated a case in the ICJ basedon the two states’ prior recognition of the Court’s compulsory jurisdiction.The UK asked the Court, first of all, “to declare the principles ofinternational law to be applied in defining the base-lines, and reference to whichthe Norwegian Government is entitled to delimit a fisheries zone, extending toseaward 4 sea miles from those lines and exclusively reserved for its ownnationals.” Clearly, the UK was asking to establish the meaning of the applicablecustomary rules of international law, since no treaty rules on baselines existed atthat time.

The UK’s arguments in the case mostly came down to the following. Agulf or a bay constitute the coastal state’s internal waters only where their mouth isnarrower than 10 nautical miles (nm.). Since that did not hold in the case, the99Dixon M. and McCorguodale R. Cases and Materials on International Law. Oxford University Press. Oxford/NewYork. 2003. P. 354-355.72Norwegian Decree of 1935 that deemed gulfs and bays with an entrance broaderthan 10 nm to be internal waters, was allegedly inconsistent with international law.For that reason, the English memorandum filed with the Court contained a demandthat Norway reimburse the damages caused by English vessels being detainedduring the preceding year.Norway demonstrated the legality of its conduct to the Court from thestandpoint of international law.

It noted, in particular, that English trawlers firststarted crossing into Norwegian waters in 1906, while the Norwegian RoyalDecree of 1935 started being implemented by the Government only in September1948. The Norwegian party asked the Court to determine, “in one single judgment,rejecting all submissions to the contrary”, the following: “having regard to the factthat the Norwegian Royal Decree of July 12th, 1935, is not inconsistent with therules of international law binding upon Norway, and… that Norway possesses, inany event, an historic title to all the waters included within the limits laid down bythat decree… the delimitation of the fisheries zone fixed by the Norwegian RoyalDecree of July 12th, 1935, is not contrary to international law.”In substantiation of its international legal case, the agent for the UK askedthe Court to declare that the key principle of the international law of the sea wasthe principle of the freedom of the seas, hence Norwegian decrees that had, bysetting forth straight baselines, narrowed down the scope of that principle, were atvariance with international law.

As to the baselines serving for the measurement ofthe breadth of Norway’s territorial sea, those must be, under international law, thelow-water lines on the Norwegian coast or the proper closing line (outer limits) ofNorway’s internal waters. The UK understood the latter to be the internal waters inNorway’s gulfs and bays, whose mouth did not exceed 10 nm in width. The watersbetween the coast and the island fringe in skerry regions could be included intoNorwegian internal waters only based on a historic title.The ICJ admitted that the breadth of the territorial sea is, as a rule, measuredfrom the low-water line.