диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 4

The Anglo-American international legal literature draws a distinctionbetween such teachings and regular academic publications on international law.Whereas the latter are regarded as a rather broad category encompassing the resultsof any research in international law published in academic titles by any authorwhatsoever, the former category only includes the academic publications that areextensively cited. Such a clear distinction is absent in the Russian internationallegal scholarship, despite an objective need for it.2.The influence of the Anglo-American international law doctrines onthe international legal Arctic policy of Russia’s neighbouring Arctic states is by fargreater than that of the Soviet and Russian international law doctrines on thecurrent international legal policy of the Russian Federation in the Arctic.

The legalpropositions formulated in the Arctic policies of Russia’s neighbours in the Arcticregion generally go through an analytical appraisal, starting from theoreticaldiscussions at specialist fora to scholarly publications and, eventually, to findingtheir way into the legal documents of a state or several states.

The legal documentsof the Government of the Russian Federation, and Russia’s Ministry of NaturalResources and Ministry of Foreign Affairs, especially since 1997, including suchacts significant to the national interests of the Russian Federation as thosestipulating the dramatic abandonment of the prima facie boundaries of Russia’sArctic shelf laid down by the 1867 Treaty and the 1926 Resolution of thePresidium of the USSR Central Executive Committee (hereinafter, the USSR18CEC), have effectively cancelled the international legal doctrine of the RussianEmpire and the Soviet Union in terms of sectoral (meridian) delimitation of thesovereign powers as regards the floor of the Arctic Ocean, while only selectivelytaking into account the scholarly publications on international law of a later period.This drastic change in Russia’s international legal position was left unnoticed inthe Anglo-American doctrines.3.The artificial insistence, during B.N.

Yeltsin’s years and thus startingfrom 1997, on the relevance of the 1982 UNCLOS to the already established statusof the Arctic, and, primarily, the emphasis on the applicability to the Arctic of itsPart XI (“the Area”) and Article 76 (on delineation between the area and thecontinental shelf), instead of the legal opportunities that the sectoral delimitation ofthe Arctic shelf had offered, resulted not only in a loss by Russia of a part of itsshelf within its Arctic sector, but also to the prevailing support for that approach inthe Anglo-American doctrines of international law, especially after the release ofNATO, EU and U.S. documents on their Arctic policy.

Interestingly, that newapproach has produced adverse legal consequences since 1997 not only for Russia:thus, а) instead of legal certainty as to the long-established meridian boundaries ofthe Arctic shelf running to the North geographical pole, the Arctic states foundthemselves forced to determine those boundaries using the new geological,distance-based, and geomorphological criteria provided in Article 76 of the 1982UNCLOS, previously untested as the underlying criteria for the legal regime of theArctic; b) instead of stability and good neighbourly relations between Arctic states,four of them ended up competing with each other in proving to the technicalinternational body under the UNCLOS – that is, the CLCS – on what geological orother grounds their shelf overlapped with the Arctic sector of adjacent states.

TheAnglo-American legal literature uses the terms “war for the Arctic shelf” and“battle between Arctic states” to describe this new situation.4.The Anglo-American international law doctrines contain differentqualifications of the concession made during Gorbachev’s perestroika whichcaused the USSR to disavow its former doctrinal Soviet position that the Kara Sea,19the Laptev Sea and the East Siberian Sea were the Soviet Union’s internal waterson historical grounds. The USSR Government’s drawing of baselines (both straightand normal) along the entire Arctic coast in 1985 was embraced in a number ofAnglo-American scholarly commentaries, especially as regards normal baselines,while other works dismissed them in solidarity with the U.S. position that criticizessome of such straight baselines.

At the same time, the Anglo-American doctrinesdo not doubt that Norway’s, Denmark’s (north of Greenland) and Canada’sexclusively straight baselines along the Arctic coastline are consistent withinternational law. Against this doctrinal background, it appears feasible torecommend that the Government of the Russian Federation draw only straightbaselines along Russia’s Arctic coast; as the first step to that effect, I proposedrawing straight baselines along the coasts of the islands of the Franz Josef Landarchipelago, taking into account the Norwegian method of drawing straightbaselines along the Spitzbergen islands that elicited no criticism in the AngloAmerican doctrines of international law.5.The Anglo-American international law doctrines do not conflate thenotion of “delimitation” of the continental shelf (that is, drawing a boundary linebetween the shelf belonging to the neighbouring states) with the notion of“delineation”, that is, drawing the outer limit of the shelf separating it from theinternational seabed area.

An analysis of such doctrines has allowed me to identifyarguments in favour of the legal possibility of delimiting the Arctic shelf betweenRussia and other Arctic states beyond 200 miles off the baselines without“delineation”, i.e. without addressing the CLCS and, accordingly, without the lossof shelf within Russia’s Arctic sector, already evident from Russia’s 2001 and2015 filings with the Commission.6.In the context of development of the international legal environmentalregulation of human activities in the Arctic for the purposes of preserving itsunique ecosystem, use of the resources based on the redefined role of that regionfor Arctic states and for the whole of the global community, and taking intoaccount the large-scale climate change, globalization and proliferation of economic20activities in the Arctic and the Arctic Ocean with its adjacent seas, the region canno longer be viewed as a marginal object of international law.

Development ofcommercial activities in the Arctic and, consequently, their legal regulation shouldbe subjected to social and ecological interests, with the aim of increasing thewelfare of the population of the Arctic states, including their indigenous peoples.This should underlie Russia’s long-term position in the Arctic Council, expressed,in particular, in its documents aimed at ensuring sustainable development in theArctic.7.From the standpoint of practice, there is a need for a newphilosophical and legal concept of sustainable development that would correspondto the unique geographic and geopolitical position of the Arctic, its environmentand international legal status, which is, at present, only scarcely found in theAnglo-American international law doctrines.

This new concept should, whilereflecting the current substance of the global concept of sustainable development,also encompass various tasks and concerns affecting the population of the Arcticstates and the global community as a whole, and should contain the parameters ofevaluation of the environmental protection progress in specific areas, first andforemost, for the purposes of conserving Arctic ecosystems in parallel withsustainable economic growth in the regions coastal to the Arctic Ocean seas.8.Elaboration of an up-to-date international legal concept of sustainabledevelopment of the Arctic, already outlined in the Anglo-American internationallaw doctrines, would be prospective if it is consolidated and aimed at themeaningful improvement of the work of the Arctic Council, at uniting the socialand ecological, and economic components of this concept so as to resolve theproblems specific to the Arctic Region, with the interests of the inhabitants of theArctic, their health, welfare and balanced development placed at the cornerstone ofthis process.9.In view of the wide-scale climate change in the Arctic, including thephenomenon of reduction of the surface area of all-season ice, it is feasible todevelop special international legal rules to govern the economic activities in that21part of the globe, including based on the regulation mechanisms proposed in theWestern international law doctrines, such as conserving Arctic ecosystems; socialmatters, including the preservation of the traditional life, language and culture ofthe indigenous peoples of the North; ensuring safety at sea in the context ofintensifying Arctic navigation, fisheries and maritime oil and gas extraction.