диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 7

Crawford. Brownlie’s Principles of Public International Law. Eighth Edition. Oxford University Press. 2012.Lxxx + 803 P.19Ibid., P. 346. Referring to: Pharand D. The Law of the Sea in the Arctic (1973); Byers M. ‘Arctic Region’ (2010)MPEPIL.30various multilateral and bilateral agreements on specific issues, 20 soft lawdeclarations and understandings, and the domestic legislation of the eight Arcticstates.”21Is the Arctic really governed “by the law of the sea as well as variousmultilateral and bilateral agreements”? Firstly, some multilateral and bilateralagreements mentioned by the author, beginning with the Convention for thePrevention of Pollution from Ships, 2 November 1973 also constitute sources ofthe law of the sea (as a branch of international law); secondly, in addition to such“agreements” and “soft law declarations and understandings”, why does the authoromit to mention such a principal source of international law as internationalcustom (Art.

38 of the ICJ Statute)? This source of international law (as will benoted further in the dissertation) is recognized in the legal doctrine as applicable tothe Arctic. Thirdly, the Arctic Ocean, including the Arctic seas, is indeed“governed largely by the law of the sea”; but not “the Arctic”, which includes alsolands - northern parts of continents (Eurasian and North American) with numerousislands and rocks, some of such lands still covered by ice, and taking into accountthe national Arctic legislation of Canada and Russia beginning from the 19thcentury relating to such northern lands.Even more surprising is the list of “various multilateral and bilateralagreements” suggested by the famous English publicists as “governing” the Arctic:“International Convention for the Prevention of Pollution from Ships, 2November 1973, 1340 UNTS 184, modified by Protocol of 17 February 1978,1340 UNTS 61; Agreement on Conservation of Polar Bears, 15 November 1973,13 ILM 13; Espoo Convention on Environmental Impact Assessment in a20The author refers to the International Convention for the Prevention of Pollution from Ships, 2 November 1973,1340 UNTS 184, modified by Protocol of 17 February 1978, 1340 UNTS 61; Agreement on Conservation of PolarBears, 15 November 1973, 13 ILM 13; Espoo Convention on Environmental Impact Assessment in a TransboundaryContext, 25 February 1991, 1989 UNTS 309; Stockholm Convention on Persistent Organic Pollutants, 22 May2001, 2256 UNTS 119.21J.

Crawford. (Op. cit. p. 346) “The Arctic States are: Canada, Denmark, Finland, Iceland, Norway, Russia,Sweden, US”.31Transboundary Context, 25 February 1991, 1989 UNTS 309; StockholmConvention on Persistent Organic Pollutants, 22 May 2001, 2256 UNTS 119.”But why do these famous Anglo-American scholars not mention suchimportant agreements as the Boundary Treaty of 1825 between Great Britain andRussia (still in force between Canada and the US)? Nor does the list of agreements“governing” the Arctic as suggested by the eminent English professors include the1897 Convention Ceding Alaska; this treaty is also in force as of today between theUS and the Russian Federation.

This is legal mistake, which is surprising given thehigh level of research in Brownlie’s book on international law.It is utterly unsurprising in this context that the Anglo-Americaninternational law doctrines take no notice of the fundamental scholarly discussionin the Russian international legal literature of the drastic turn in 1997 of theRussian Arctic international legal policy from the one that had solidified back inthe 19th century and continued into the 20th century.

The essence of that drasticchange was as follows.Before the 1982 UNCLOS entered into force for the Russian Federation in1997 and prior to the subsequent drastic revision of Russia’s international legalpolicy on the Arctic previously announced by the Russian Empire and consistentlyaffirmed by the Soviet Union (as discussed below in more detail), there had beenno fundamental theoretical differences in the Russian international law scholarshipas to the legal qualification of the areas of the Arctic Ocean, as already noted in theacademic literature.22 Starting from a book by Professor V.L. Lakhtin published in1928 by Litizdat of the People’s Commissariat for Foreign Affairs, Russianinternational lawyers unanimously qualified the status of the Arctic Ocean and itsseas as sui generis, represented by international customary rules created by thepractice of Russia and other Arctic states and acquiesced to by other states out ofthe belief that such practice was internationally lawful.

The famous “boundaries of22Vylegzhanin A.N. Pravovoe polozhenie Arkticheskogo regiona v dokumentakh [Documents on the Legal Statusof the Arctic Region]. / Arkticheskii region: problemy mezhdunarodnogo sotrudnichestva [The Arctic Region:Issues of International Cooperation]. In 3 vols.

Primenimye pravovye istochniki [Applicable Law]. Ed. by I.S.Ivanov. М. 2013. P. 14-26.32the Polar possessions” provided in the 1867 Convention mentioned above and theResolution of the Presidium of the USSR Central Executive Committee (USSRCEC) of 15 April 1926 were always marked on the maps of the Soviet Union,converging in the North geographic Pole and perceived as an imperturbable fact inthe legal conscience of the society.Lands – both above and under the water surface, that is, the seabed – withinthat “Polar triangle” were viewed as the doubtless object of the USSR’s sovereignprerogatives.Nevertheless, even at that time discrepancies became visible between theofficial position of the US, on the one hand, and the positions of the Soviet Unionand Canada, on the other hand, regarding the status of the waters within those“boundaries of the Polar possessions”.

Neither the US, nor the majority of otherforeign states viewed the waters within those Polar boundaries as under the Sovietjurisdiction. That translated into the doctrinal Anglo-American legal opinions, and,as will be noted below, was treated differently in the foreign and Russianinternational legal scholarship.The basic questions raised in this regard in the English international legalpublications scholarship mostly boil down to the following.1.What was the ground for attributing the Kara Sea, the Laptev Sea, theEastern Siberian Sea and the Chukotsk Sea to the internal historic waters of theUSSR in the Soviet international law doctrine (textbooks published by MGIMOand the Diplomatic Academy at the USSR Ministry of Foreign Affairs)?2.On what ground did Canada draw only straight baselines along itsArctic coast, having included into its internal waters vast Arctic areas, includingthe Northwest Passage?3.On what ground did the Soviet Union and Canada enact domesticlegislation regulating navigation, respectively, in the Northern Sea Route and theNorthwest Passage?4.Why, after the 1958 Geneva Convention on the Territorial Sea and theContiguous Zone had entered into force for it, did not the Soviet Union draw33baselines along its Arctic coast, but did so along its coastline of the seas of thePacific and Atlantic Oceans? (One may recall that the USSR did not drawbaselines along its Arctic coast until perestroika).5.Why did the Soviet international legal doctrine deny the very fact ofexistence of high seas areas in the Arctic Ocean, but, at the same time, in itspractice, the Soviet Union did agree to enter into treaties on the conservation ofmarine living resources in the Arctic Region, which may be construed as evidencethat such areas nonetheless existed?These questions will be discussed in the dissertation, beginning from theissues of drawing straight baselines, and their delimiting the internal waters,including on historical grounds.

For now, I will merely note that neither the foreigninternational legal scholars, nor states at the level of formal diplomatic relations,have ever questioned the legality of the USSR’s (in 1926), and before it Canada’s(in 1925) qualification of the “lands and islands” within their Arctic sectors asfalling under the sovereignty of the relevant state. Never has any of the numerousstates of the world challenged the meridian boundaries of the Arctic sectors –neither in 1825, when a Russian-British convention set forth the first of suchmeridian boundaries going up to the North Pole; nor in 1867, when a Russian-U.S.convention established the second boundary of this kind; nor in 1925, when aCanadian law drew meridian boundaries of its Polar sector at both extremities ofits Arctic coast; nor in 1926, when a Resolution of the Presidium of the USSRCEC drew, also at both extremities of its Arctic Ocean coast, the boundaries of theSoviet Arctic sector.It shall be reminded, however, that the legally binding documents listedabove that provide for sectoral (meridian) boundaries do not use the term “Arcticsector” as such.

It was introduced by legal scholars commenting on such legaldocuments.This means that for the Russian Federation and Canada, there would havebeen no potential factor of “burden” or “protests” from foreign states that couldcomplicate their legal position, if in 1997 Russia had suggested a bilateral34agreement with Canada on the delimitation of their arctic continental shelf with thejunction point in the North Pole.

That approach could have allowed to adjust theshelf delimitation line between Russia and Canada later, taking into account thepositions of Denmark and Norway in their delimitation of the Arctic shelf withRussia. All the more that the U.S. already had prima facie boundaries of theirArctic shelf marked by the meridian lines joining at the North Pole as provided bythe abovementioned Treaties of 1825 and 1867.But President B.N. Yeltsin’s Government failed to make this logicalinternational legal step. On the contrary, the change of President Yeltsin’s positionon the Arctic shelf noted above that radically undercut the legal policy of theRussian Empire and the Soviet Union, stirred heated debate, as shown further: itdid earn praise only from the US, but prompted different opinions in the Russianinternational legal scholarship, and, finally, the total hushing-up of that “littlevictory” of the US and NATO in the Anglo-American international law doctrines.In this context, it becomes clear that it would be reasonable to prioritizeresearch in order to answer questions: was Russia’s consent (since 1997) to applythe 1982 UNCLOS to the Arctic Ocean (including its seas) in line with Russia’snational interests? What role has the 1982 UNCLOS in the current legal regime ofthis smallest (by area and depth) of the oceans possessing ample uniquegeographic, climatic, and legal characteristics?§ 3.