диссертация (1169188), страница 11
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Pursuant to the1925 amendments to the well-known Northwest Territories Act, Canada establishedthat any activities within the Canadian Arctic sector, including for the purposes of44The 1867 Treaty was signed on behalf of Russia by the Russian Emperor’s Privy Councillor, E. de Stoeckl, andon behalf of the US by Secretary of State W. Seward.
The Treaty text (Russian and French) is cited from Collectionof Boundary Treaties Made by Russia with Neighbouring States. Published in St.-Petersburg. 1891. P. 299-303. Seealso Ovchinnikov I.A. Sbornik deistvuyushchikh traktatov, konventsii i drugikh mezhdunarodnykh aktov,imeyushchikh otnoshenie k voennomu moreplavaniyu [Collection of Effective Treaties, Conventions and OtherInternational Acts Related to Military Navigation]. Petrograd. 1914. P. 82 et seq.45F. de Hartingh. Les conсeptions sovietiques du droit de la mer. Paris.
1960. P. 39.46Cited in UN ILC. Documents of the Second Session Including the Report of the Commission to the GeneralAssembly. Note 34. P. 107.47Reid I. The Canadian Claim to Sovereignty over the Waters of the Arctic / 12 Canadian Yearbook of InternationalLaw, III, 1974. – Cited in Barsegov Yu.G., Mogilevkin I.M. et al. Arktika: interesy Rossii i mezhdunarodnyeusloviya ikh realizatsii [The Arctic: Russia’s Interests and the International Conditions of Their Realisation].
М.:Nauka. 2002. P. 29.48exploration and exploitation of natural resources required the respective permit fromthe Canadian authorities.48 In 1926, Canada’s legislation instituted the Arctic IslandsPreserve; the Northern boundaries of that preserve, according to the law, coincidewith those of Canada’s Arctic sector. In May 1929, another Canadian legislative actset forth the boundaries of its Arctic sector.49The second state to put down the meridian lines of its Arctic sector at thelegislative level was the Soviet Union.
Before that, the Russian Empire, as it maybe recalled, was the first to envisage the sectoral boundaries of its Polarpossessions in the Arctic at the treaty level. As to Russia’s domestic legal acts, as Ihave already demonstrated, they juridically extended the sovereignty of theRussian State both to the Polar lands, including the Arctic islands along theRussian coast in the Arctic Ocean seas (note of the Russian Ministry of ForeignAffairs of 1916), and any and all “gulfs, bays, roads of the Russian coast of theArctic Ocean”.50 That legal position was maintained by the Soviet Government aswell.
Thus, in 1921, the Council of People’s Commissars of the Soviet Russiaadopted the Decree on the Protection of Fishing and Hunting Grounds in the ArcticOcean and the White Sea.51Most Anglo-American works on the status of the Arctic published prior tothe 1982 UNCLOS mention that on 15 April 1926, the Presidium of the USSRCEC adopted the Resolution Declaring the Lands and Islands in the Arctic Oceanthe Territory of the Union of the SSR52 (hereinafter, the 1926 Resolution). Pursuantto the 1926 Resolution, as it will be recalled, the territory of the USSR was48British North America Acts 1867-1907.
Printed by C.H. Parmellee, Printer of the King’s Most Excellent Majesty.1913. P. 1-2, P. 209. Pharand D. Canada’s Arctic Waters in International Law. Cambridge. 1988. P. 45-50.49Timchenko L. Quo Vadis, Arcticum? The International Law Regime of the Arctic and Trends in its Development.Osnova. Kharkiv. 1996. P. 73.
See also Nikolaev A.N., Bunik I.V. Mezhdunarodno-pravovye obosnovaniya pravKanady v ee arkticheskom sektore [International Legal Arguments Supporting Canada’s Claims in Its Arctic Sector]/ MJIL, No. 1, 2007. P. 12-14.50Instruction to the Military Cruiser Sent to Protect Fishing Grounds along the Northern Coast of European Russia.1893 г. Annotated by the Emperor of All Russias in 1894.
(from the personal records of Professor A.N.Vylegzhanin, who kindly gave me access to this document).51RSFSR Code, 1921, No. 49, Sect. 259. P. 351-352.52Referring to the USSR Code. 1926. No. 32. Sect. 203. The text of this Resolution is reproduced fromMezhdunarodnoe pravo v izbrannykh dokumentakh [Selected Documents on the International Law] (Part I) / Ed. byV.N. Durdenevskii. М. 1955. P. 210.49declared to include “all lands and islands, whether discovered or to be discoveredin the future, that by the publication hereof do not constitute territory of anyforeign states recognized by the Government of the Union of the SSR, situated inthe Arctic Ocean, north of the coast of the Union of the SSR and up to the NorthPole” within the meridians running through the eastern and western extremities ofthe country’s territory.That the text of the Resolution repeats the wording of the Canadian 1925 Actmentioned above almost word-for-word is left without notice in the AngloAmerican doctrines.
After the 1982 UNCLOS was adopted, references to thatResolution both in English and in Russian legal publications have becomeincreasingly rare.Nonetheless, even the Anglo-American works did not rule out the possibilityof sectoral boundaries serving as the basis for the delimitation of Arctic shelfbetween the five Arctic states. Was that legal possibility built on the historicallegal status of the Arctic, however, shattered by the entry of the 1982 UNCLOSinto force for Russia in 1997?If one is to look into the commentaries to the materials of the 3rd UNConference on the Law of the Sea where the 1982 UNCLOS was being drafted,one would find that the Arctic states had intentionally turned away from a broaderdiscussion of the specific and geographically and climate-wise complex region ofthe Arctic at that Conference.
By the beginning of the Conference, the internationalcommunity, as the documents demonstrate, had recognized the special priority rightsof the Arctic states, including those sectoral (meridian) lines stipulated in the RussianEnglish Boundary Convention of 1825 and the Treaty of 1867 discussed above.Particular success was made in terms of the interstate bilateral cooperation in thefield of research and preservation of the nature of those regions, primarily, based ontreaties between the Arctic states. That cooperation continued subject to the limits ofthe previously established Polar sectors as per the treaties of the USSR, Canada, andthe U.S.
At the same time, one of those states – the U.S. – admittedly consistentlyobjected to Canada’s and the USSR’s domestic legislation regulating navigation along50their Arctic coastline (via the Northwest Passage and the Northeast Passage,respectively). At that, however, the U.S. did not protest against the sectoral (meridian)boundaries per se. Moreover, the U.S. suggested using none other than the sectoralboundary for delimiting the continental shelf in the Arctic between the US and theUSSR.53Anglo-American international law doctrines pay little heed to the crucialfactor of the so-called “Arctic five” functioning confidentially at the 3rd UNConference on the Law of the Sea.
The group was composed of the five Arcticstates whose shores open to the Arctic seas. In the course of the Conference, thosestates, at the meetings of their delegations, as the participants of the Soviet delegationtestify, discussed matters related to their interests in the Arctic. They reached aninformal and common understanding that it was in the interests of the “Arctic five”to try to “nip” any attempts to discuss the status of the Arctic at the Conference.
The“five” met at different levels. There is also evidence to the effect that the issues ofthe Arctic were always close at hand during the bilateral meetings with theCanadians and other members of the “five” (both at the working diplomatic andinterstate levels). The consultations of the “Arctic five” have been documented, inparticular, in the publication by a Canadian expert, A. Morrison.54 He also notes thatdespite all climate-based analogies between the Arctic and Antarctica, the legal regimeof the latter did not inspire the leaders of the Arctic states to borrow the elements ofsuch regime to apply them to the Arctic: “In his opinion, the leaders of the Arcticcountries appear to have dismissed certain aspects of that regime, having reached anunspoken agreement that the path of ‘common heritage’ followed in the case of the53The US-proposed delimitation with the USSR of the continental shelf in the Arctic along the sectoral boundary setforth by the 1867 Russian-American Treaty, was reflected in the text of the Agreement between the USSR and theUSA on the Maritime Boundary, 1990.
For more details, see Message from the President of the United States ofAmerica transmitting the Agreement between the USA and the USSR on the Maritime Boundary. US GovernmentPrinting office. Washington: 1990. P. 3, etc.; see also Vylegzhanin A.N. 20 let “vremennogo primeneniya”Soglasheniya mezhdu SSSR i SShA o linii razgranicheniya morskikh prostrannstv [20 Years of the “ProvisionalApplication” of the USSR-US Maritime Boundary Agreement] / Vestnik MGIMO [MGIMO Journal]. No.
1(10)2010. P. 104-113.54A. Morrison was the Executive Director of the Canadian Institute for Strategic Studies in Toronto, and before that– the Minister-Counselor at the Canadian Mission to the United Nations from 1983 to 1989.51Antarctic Treaty is not one they wish to follow.”55 The reality is that the legalregimes of Antarctica and the Arctic are different.There are other scholarly publications evidencing that the Arctic states thatparticipated in the 3rd UN Conference on the Law of the Sea strived not to bringextrinsic elements into the Arctic, be it the treaty regime of Antarctica, or theglobal regime for other (ice-free) oceans negotiated during the Conference – thatis, to preserve the regional status of the ice formations and maritime areas of theArctic that had been in place before the Conference began.
Thus, Canadianspecialists B. Buzan and D. Middlemiss describe how Canada’s delegation at theConference intensified its efforts, “working with the North States”.56Consequently, the Anglo-American international law doctrines containneither a refutation, nor any compelling proof that, at the 3rd UN Conference on theLaw of the Sea, the common intent of the five Arctic states consisted in making thehigh-latitude Arctic the object of the future UNCLOS. Those doctrines arepurposefully “silent” even as regards the existence of evidence (doctrinal anddocumentary) to the effect that the unspoken common understanding of the Arcticstates was different: both Polar regions – the Arctic and Antarctica – were tactfullyexcluded from special discussions at the Conference.
Therefore, they were neverviewed as the objects of the 1982 UNCLOS, and on logical and compellinggrounds at that: namely, since both Antarctica and the Arctic had already had apre-existing legal status specific to each of these regions (only treaty-based in theformer case, and additionally custom-based in the latter).In spite of that, the majority of Western scholars, including those from theUS, the UK and other Western countries presume that the 1982 UNCLOS iscurrently applicable to the Arctic Ocean, even though not all Arctic states areparties thereto.
It is notable that most of such authors do not substantiate why theU.S. are refusing to participate in the 1982 UNCLOS, observing (not entirely55Morrison A. Coming in from the Cold War: Arctic Security in the Emerging Global Climate: A View fromCanada. P.
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