диссертация (1169188), страница 24
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The Soviet Union, among others, actively participated in thatConference. Two years after that Conference, in 1960, it enacted the Regulation onthe Defence of the State Border of the Union of Soviet Socialist Republics. Art. 2 ofthe Regulation states that the breadth of the territorial waters was to be measuredfrom the low-water mark, while in the case of gulfs, bays, estuaries and limans(salted lagoons), whose mouth does not exceed 24 nm, and, insofar as ports andhistoric bays were concerned – from straight lines closing their water areas.In 1971, that Regulation was amended to include a special addition to theeffect that where the coastline is indented and curved, or where there is an islandchain in immediate proximity to the coast, territorial waters were to be measured105from straight baselines connecting the respective points. The geographicalcoordinates of such points, according to the Regulation, were to be approved undera procedure set forth by the Council of Ministers of the USSR.
Effectively, theinclusion into that document of a provision on straight baselines was due to theinternational practice, that, in turn, encompassed the provisions of the 1958Geneva Convention on the Territorial Sea and Contiguous Zone.The Regulation on the Defence of State Border was replaced by the USSRLaw On the State Border of the USSR dated 24 November 1982.Pursuant to Art. 5 of that Law, the territorial waters (territorial sea) of thecountry included “coastal marine waters 12 nautical miles wide, measured from thelow-water line both on the mainland and the islands belonging to the USSR, orfrom straight baselines connecting the respective points.
The geographicalcoordinates of such points are to be approved in accordance with the procedure setforth by the Council of Ministers of the USSR.”Straight baselines (closing lines) were also used under Art. 6 of the Law forgulfs, bays, estuaries and limans (salted lagoons), whose mouth did not exceed 24nautical miles in width, as well as with respect to the waters of ports and historicbays.Thus, for the first time in Soviet practice, the lists of geographicalcoordinates of points that determined the location of baselines, including straightones, in the Arctic Ocean seas, were approved by a Resolution of the Council ofMinisters of the USSR in 1985.
They were published, in particular, in 1986, in thespecial issue of Izvescheniya moreplavatelyam (Navigators’ Bulletin).That Resolution, adopted during the perestroika, received different reviews.Before that Resolution, the Soviet Union did not announce the geographicalcoordinates of the points forming baselines along the country’s Arctic coast.Moreover, the Soviet doctrine of international law, and, primarily, in the basictextbook of the Ministry of Maritime Fleet of the USSR The Law of the Sea forhigher navy colleges, justified a special legal regime of the “seas of the Soviet106Arctic sector” as the historically internal waters of the USSR.128 Furthermore, thatdoctrinal source of the law of the sea cited the opinions of foreign legal scholars onthe status of the Arctic Ocean as a unique “geographic region”, instead of an“ocean”: “the Arctic Ocean is largely a hypothetical notion, a combination ofhypothetical waters and islands, whose distinctive characteristics are mostlyconcealed by vast bodies of ice… Sailing with ice-breakers is navigation… nomore than sailing a canal… An icy sea crossed that way becomes a sea for that nomore than a portion of surface does if man builds a canal there.”129Under the 1985 Resolution of the USSR Council of Ministers, only a smallnumber of straight baselines were drawn along the USSR coast in the Arctic Oceanseas – in contrast to the practice of Norway, Canada, and Denmark, as shownbelow.
The use of such “overmodest” straight baselines130 resulted in only thesmall basins of the Kara Sea, as well as those of the Chosha and BaydaratskayaBays being included into the USSR’s internal waters. Therefore, the 1985Resolution caused a significant decrease in the sea areas, for which the Sovietdoctrine of international law previously consistently substantiated the USSR’srights as to the Soviet historic waters. It is therefore unsurprising that Westernscholars of international law have noted that the Resolutions of the USSR Councilof Ministers of 1985 “contradict previous doctrinal assertions concerning theexistence of historic title to all Arctic seas.”131The 1985 Resolution of the Council of Ministers of the USSR on thebaselines in the Arctic is in effect, but remains debatable in international legalscholarship to this day.
Prior to that Resolution (before M.S. Gorbachev’sperestroika), legal efforts during that period of development of Russian statehoodwere focused on spreading the national legislative regulation in the adjacent Arcticseas on the basis of historic title, under the applicable international custom. That128Zhudro А.K., Javad Yu.Kh. Law of the Sea. Moscow: Transport. 1974. P. 152-154.129Ibid., P. 151-152.130Nevertheless, they did, as noted above in this dissertation, cause protests from the U.S.
Norway’s practice ofdrawing straight baselines only along its Arctic coast, however, elicited no protests from the U.S.131ScovazziT.Op.cit.P.82.107legal framework allowed the state to claim sovereignty over more expansivemaritime areas, than was possible in case of drawing several straight baselines asper the 1985 Resolution.I will note, however, that during the Soviet period, there was no legislativeact on how to qualify the Barents, Kara, Laptev, East Siberian and Chukchi Seas asthe Soviet historic waters. That, however, does not mean that no secret directivewas adopted on the matter, for example, by the Central Committee of theCommunist Party of the USSR that determined the state’s policy at the time.I will also note that two “frontier” seas – the Barents Sea (to which theneighbouring Norway’s coast also runs) and the Chukchi Sea (with its U.S.
coast)by virtue of international law, could not be qualified by the Soviet Union ashistoric waters without reaching an agreement with the respective neighbouringstate (Norway in the former case; the U.S., in the latter). Such agreements werenever concluded.Nevertheless the self-limitation, as compared to doctrinal opinions, of thesurface area of the internal maritime waters of the USSR under the Resolution ofthe Council of Ministers of the USSR of 1985, described above when the SovietUnion marked straight lines along portions, rather than all of its Arctic coast,stands in contrast with the practice of other Arctic states’ drawing straightbaselines along their entire Arctic coasts.§ 3. The legal practice of other Arctic states with respect to baselinesalong their Arctic coastUnlike the modest legal position the USSR took in 1985 as described above,Norway drew only straight lines along its entire coast (Annex 3). The rather longstraight baselines were set by Norway along the significantly distant island of JanMayen as well (Annex 4).Canada acted similarly, drawing only straight baselines along its Arctic coast(Annex 5) and having included into its internal waters not only the Northwest108Passage, but also the maritime areas it holds jointly with Denmark (Greenland) –the Lincoln and Baffin Seas (Annex 6).Annex 7 illustrates Norway’s daring legal step: its drawing in 2001 of onlystraight baselines along the entire coast of the Spitsbergen archipelago, withoutconsulting any of the 1920 Spitsbergen Treaty states.The said charts show that, in general, the Arctic states that drew only straightbaselines along their Arctic coast (Canada, Norway, and Iceland) havesubstantially increased their maritime state territory.
By virtue of the 1985Resolution of the USSR Council of Ministers, the maritime state territory of thestate was expanded marginally (compared to options permissible underinternational law).Unlike the above Arctic states, the U.S. is not using straight baselines in theArctic, reserving the issue of increasing its state territory in the Arctic Ocean seasfor the future.Thus, the Arctic states have specified the coordinates of baselines along theirArctic coasts in their own ways.
Canada, Denmark (Greenland), and Norway,proceeding from the applicable international customary law, have set straightbaselines along their entire coasts. From the strictly formal treaty perspective,namely, from the standpoint of particular rules on baselines contained in the 1982UNCLOS, that practice of Arctic states can be objected to (although only one state,the U.S., actually raised such objections). However, in terms of substantiating thelegality of the policy adopted by Canada, Denmark, and Norway as regardsdrawing straight baselines, one should be reminded in the context at hand, that thetreaty rules, as put by the ICJ, must “be seen against the background of customaryinternational law and interpreted in its light.”132But the same practice of Russia’s neighbouring states shows that drawing, asper the Resolution of the Council of Ministers of the USSR dated 15 January 1985,only several straight baselines to measure the breadth of the territorial sea, the EEZand the continental shelf of the USSR in the Arctic Ocean did not rely on all132I.C.J.
Reports 1984, P. 291.109international legal options. Essentially, that self-limitation of the internal waters ofthe USSR in the Arctic had it repudiate the legal value of the Soviet teachings ofinternational law of the 1930-1980s that supported the inclusion of the Kara,Laptev, and East Siberian Seas to the USSR’s internal waters on historic grounds.In fully “contouring” their Arctic coasts solely with straight baselines,Canada, Denmark, Iceland, and Norway significantly “accrued” not only themaritime part of their state territories, but also “expanded” northward their EEZsand continental shelf zones.It is useful to look at the individual legal policy of each of the Arctic states,since they are neighbouring states to Russia (with adjacent or opposite coasts).The U.S.
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