диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 8

The UNCLOS and the legal regime of the Arctic Ocean: acomparison of the Russian and Anglo-American doctrinesAmong the international legal studies published in English, the subject athand has been most thoroughly and substantially examined in the many editions ofthe fundamental Canadian book “International Law: Chiefly as Interpreted andApplied in Canada” authored by Canadian international lawyers H.M. Kindred,T.M.

McDorman, K. Mickelson, R. Provost, L. Reif, A.L. de Mestral, and Sh.A.35Williams.23 The section of this fundamental international legal study which is titled“Legal Status of the Arctic Regions” cites the conclusions of a Canadian Professor,D.B. Pharand, a most prominent specialist on the status of the Arctic, publishedback in 1979. These conclusions relate primarily to the significance of the Arcticfor the then “superpowers”, that is, for the US and the USSR:“The Arctic Ocean and the peripheral seas are still of considerableimportance to the super powers. Indeed, the Kola Peninsula on the Barents Sea isthe home port of the northern fleet of the Soviet Union, which is the largest of itsfour fleets, within which we find all the Soviet Delta-class submarines operatingout of Murmansk.“On the American side of the Pole, the United States operate the NavalArctic Research Laboratory at Point Barrow, Alaska, and although this is not anaval base for strategic submarines, it is well known that the United States hastested the feasibility of the Arctic Ocean for submarine navigation as early as 1957,with the Nautilus.“The early warning system established shortly after the Second World Warwere meant for bomber detection and are now somewhat obsolete by themselves,so they were supplemented by ballistic missile early warning system.

We findradar stations, as part of the system, in Alaska and Greenland, in particular…“In short, it may be said that the Arctic region is still of considerablestrategic importance, being located between the super powers. And moreparticularly, the ice cover of the Arctic Ocean could be important to permitsubmarines armed with ballistic missiles to go undetected or, at least, to makedetection much more difficult…“Aside from the remaining strategic importance of the Arctic Region,aspects of which we have just briefly alluded to, the economic importance isgaining considerable momentum in recent years because of the need to find newsources of energy supply, particularly oil and gas.

These would appear to be quiteplentiful in the Arctic continental shelf. In the Beauford Sea, off the coast of23See http://is.dal.ca/~wwwlaw/kindred.intllaw.36Alaska, the recoverable reserves of the Prudhoe Bay oil and gas field are estimatedto be very considerable. On the Canadian side of the Beaufort Sea continentalshelf, offshore drilling has been carried on for the last five years and, although nocommercial oil discovery has yet been made, the expectations are still high thatthis will be done within next couple of years. Although the other three Arcticpowers have not been as active as the United States and Canada in investigatingthe continental shelf off their coast, they have all done some preliminaryexploration. This is particularly so in the Barents Sea continental shelf wheredrilling operations are expected to begin within the next year or so.

As for theSiberian continental shelf, which is the widest in the world, averaging some 400miles wide, it represents a great potential for hydro-carbon deposits…”24To properly understand the doctrinal propositions of Professor Pharand, oneshould note that as of 2000 (when the 6th edition of this Canadian work on theinternational law cited above was released), the 1982 UNCLOS had alreadyentered into force, and Russia had already acceded to it, while Canada had not.

It isunsurprising then that such a comprehensive study summarizing the Canadiandoctrines on the status of the Arctic makes it seem as if the 1982 UNCLOS doesnot in any way apply to the Arctic Ocean. Conversely, according to ProfessorPharand, Canada’s rights within its Arctic sector crystallized before thatConvention entered into force, and remained the cornerstone of the current legalstatus of the Arctic.The same holds true for the findings of another Canadian legal scholar,Professor I. Head:“The Arctic “sector theory” is rightly associated with Canada for it was firstoffered by a Canadian, and first debated in the Canadian Parliament.

In the halfcentury since the first appearance of the theory, many Canadian statesmen havetaken great pains either to criticize it or praise it. Some have offered a disarmingdisplay of their open-minded attitude and have spoken on various occasions onboth sides of the issue.24Ibid., P. 421.37“An Arctic sector is deceptively simple, and is compounded of only twoingredients: a base line or are described along the Arctic Circle through territoryunquestionably within the jurisdiction of a temperate zone state, and sides definedby meridians of longitude extending from the North Pole south to the most easterlyand westerly points on the Arctic Circle pierced by the state.

Under the theory,nations possessing territory extending into the Arctic regions have a rightful claimto all territory – be it land, water or ice – lying to their north. This claim springsfrom the geographical relationship of the claimant state to the claimed territory; thetwo areas must be contiguous along the Arctic Circle.“The Arctic sector theory was first publicly propounded by Pascal Poirier, aCanadian Senator, in 1907.”25The latter proposition of the Professor, however, raises theoreticalobjections. The Arctic sector line “was first publicly propounded” not by CanadianSenator Poirier, in the 20th century, but during the 19th century negotiationsbetween Great Britain and Russia, upon which the two naval superpowers (at thattime) concluded the Boundary Treaty of 1825 (where the Arctic sector theory wasfirst laid down in a bilateral legal document).But as regards the key statements, the doctrinal qualification given byProfessor Head to the status of the Canadian Arctic sector appears correct and inline with the law applicable during that period.

It is no wonder that such doctrinalpositions were welcomed in the Soviet Union as corresponding to the nationalinterests of both Canada and the USSR.Notably, the cited doctrinal source correctly notes that notwithstanding the1982 UNCLOS, Canada’s territorial sovereignty in the Arctic over the “mainlandand the islands” located there “has never been challenged”:“Canada’s claim to territorial sovereignty over the Arctic mainland and theislands of the archipelago within the Canadian “sector” have never beenchallenged by another state.

The two nations most intimately concerned with this25Ibid., P. 422.38area are, coincidentally, the most powerful and influential in the world – theUnited States and the Soviet Union. Between these two states lies Canada.”26In contrast to Canada’s consistent position, Russia’s Government drasticallychanged its Arctic position after the 1982 UNCLOS had entered into force. For theRussian Federation, the 1982 UNCLOS became effective while it was not yet ineffect for Canada (Russia ratified it by Law No. 30-FZ dated 26 February 1997).On the whole, the Russian international legal scholarship no longer doubtsthe feasibility of Russia’s participation in that universal treaty that has defined thestatus of the World Ocean. Scholars only criticize the Government’s decision(contrary to the USSR’s legal position) to apply the 1982 UNCLOS not only to theIndian, Atlantic, and Pacific Oceans, but also to the Polar Regions north of theArctic Circle.

It is notable that Anglo-American legal literature does not take intoaccount the results of analysis of the 1982 UNCLOS provided in publications ofProfessors Yu.G. Barsegov, G.G. Ivanov, S.V. Molodtsov, O.N. Khlestov, P.D.Barabolya, and other major Russian international legal scholars who were part ofthe Soviet delegation at the 3rd UN Conference on the Law of the Sea (1973 –1982; some of them participated also in the preparatory stage of the Conferencestarting from 1967).At present, both foreign and Russian international legal scholars considerdifferent interpretations of the 1982 UNCLOS provisions which are relevant to theArctic Ocean – the UNCLOS provisions on the continental shelf and its naturalresources, including oil and gas; provisions on baselines and historic waters; on thecoastal state’s jurisdiction over foreign vessels navigating in its internal waters, theterritorial sea, the exclusive economic zone (hereinafter, the EEZ), including icebound areas; on the procedure for laying underwater pipelines and cables on theseabed, etc.

The predominant, though not in all respects unchallenged,understanding is that most of the rules of the 1982 UNCLOS (except for its Part XIon the international seabed area as the “common heritage of mankind” – and Art.26Ibid., P. 423.3976 on the delineation line between the continental shelf and the Area) reflecteffective international custom.Nevertheless, debates continue as to the applicability of the 1982 UNCLOSto the perennial ice located north of the 200-mile EEZs of the five Arctic states: isthe ice area the high seas, or is it sui generis? This question is discussed infra herein this dissertation, specifically in the analysis of the Polar Code.But the most challenging question is on the status of the sea-bed of theArctic Ocean, including that of its seas, that is whether this Arctic sea-bed beyond200-miles EEZ of the Arctic Coastal States is, from the standpoint of internationallaw, the arctic continental shelf or the “common heritage of mankind” – given theunique natural properties of this smallest of the oceans (by area and mean depths);its being half-locked by the sovereign maritime territories of only five states –Russia, Canada, the U.S., Denmark (Greenland), and Norway; its special regionalstatus, that historically crystallized in light of the critical role of the legal practiceof such five Arctic states.27 In the context of its unique nature, it is asserted in thisdissertation that, all of the Arctic Ocean’s floor constitutes the Arctic continentalshelf under international law.

That approach is not shared expressis verbis inAnglo-American legal literature.This approach requires that such Arctic shelf be delimited between the saidfive Arctic states on the basis of Art. 83 of UNCLOS or on the basis of customaryrules of international law as they are defined by the ICJ. But without applying PartXI of the 1982 UNCLOS (“Area”) and Art. 76 (on the delineation line between theArea and continental shelf of a relevant Arctic coastal state).