диссертация (1169188), страница 25
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is a major economic and military power in the world133 with themost formidable navy; and its military industry, in particular, is interested in amaritime legal order that would ensure that as much maritime space as possiblewould be beyond national sovereignty and jurisdiction, while being open to theAmerican military and companies. The reason for the political focus of the U.S.Department of State on this matter is, then, unsurprising: baselines shouldgenerally be drawn along the low-water line, so that the coastal state would bepermitted less space under its sovereignty (and, accordingly, jurisdiction) ascompared to the permissible larger space.
Such “normal baselines” are drawn bythe U.S. along its Arctic coast as well.Closing straight lines are set by the US only in case of “juridical bays”, i.e.,bays with geographical parameters meeting the legal criteria set forth by the 1958133According to foreign scholars, it is the U.S. that benefited the most from the USSR’s dissolution: “Russia issignificantly weaker than the Soviet Union was. Compared with territory and population of the Soviet Union, Russia“lost” 5.2 million square kilometers and about 140 million inhabitants after 1991.
Russia’s armed forces werereduced to about a fifth of the Red Army’s strength during the Cold War. Russia’s defense budget (2017: USD45.15 bn.) is over 17 times smaller than the U.S. defense budget (USD 773.5 bn.). Further, the same study discussesthe increasing estrangement between the economies of the U.S. and Russia: “In addition, Russia’s economic poweralso contradicts talk of a renaissance of a superpower rivalry – even if the U.S. always had a clear upper hand ineconomy during the Cold War. But the gap widened dramatically after 1991. Currently, Russia is only the 12thlargest economic power (USD 1.3 bn.), even behind Canada and South Korea, while the United States (USD 18 bn.)is still the world’s top economic power, ahead of China.
In the last few years, Russia’s economy has sufferedprimarily as a result of falling global oil prizes as well as due to Western sanctions.” Keohave D., etc. StrategicTrends 2017./ Center for Security studies. ETH Zurich. Reuters. 2017. P. 17-18.110Geneva Convention on the Territorial Sea and Contiguous Zone (Art. 7, paras. 1-5)and the UNCLOS (Art.10, paras. 1-5).It should be noted specifically, however, that the US does not have in placeany legislation that would clearly define the limits of its internal waters. Thatallows the U.S.
Department of State, while criticizing the positions of other Arcticstates from the legal standpoint for their drawing of straight baselines, and, thus,setting “guidelines” for other states for drawing their maritime boundaries, andwhile conducting “systematizing monitoring” of “excessive claims” of foreignstates to sea areas, to nonetheless construct a beneficial legal field for economicand navy operations in the Arctic Ocean for the U.S. itself.At the same time, it should be noted that the U.S., having raised objectionsagainst Canada’s and other Arctic states’ drawing straight baselines along theirentire Arctic coast, is unlikely to maintain those protests in the future.
There arecommon large-scale economic interests between the U.S. and other Arctic statesthat dictate that they have to cooperate: for example, the issue of the legal regimeof the high seas in the central part of the Arctic Ocean beyond the 200-mile EEZsof the five Arctic states.Norway’s position on this matter appears to be the most legally sound andconsistent.Norway has aptly relied and is currently relying on the rules, first of all, ofinternational customary law on historic title and straight baselines, withoutconfining the international legal basis for its policy to treaty rules only, includingthose on baselines.Consequently, in the 1930s, Norway chose, boldly (at the time), to drawrather long straight baselines that “closed in” vast maritime spaces as its internalwaters.
The main argument centred on the customary rules of international law,namely, the practice of Norway and the attitude of other states thereto. Thelegislative act that underlay Norway’s legal practice on baselines was the RoyalDecree dated 12 July 1935. Subsequently, that legislative approach evolved, thedecree having been replaced by a new legal act – the new Royal Decree adopted on11114 June 2002 (in effect as amended on 10 October 2003) regarding the coordinatesof straight baselines along Norway’s mainland.The implementation by Norway of the 1935 Decree and the tolerance ofother states with respect to that Norwegian practice have had colossal internationallegal implications, as evidenced by the 1951 ICJ judgment.One may recall that the Decree of the King of Norway of 12 July 1935 setforth the geographical coordinates of the points, that, connected, served for thedrawing of straight baselines, with the longest one exceeding 40 nm, which the UKperceived as a breach of international law.
In support of its position on thelawfulness of the proposed straight baselines method, Norway offered thefollowing rationale. First of all, Norway invoked special “geographic conditionsprevailing on the Norwegian coast.” At present, Norway understands the latterterm to include the coast of the Spitsbergen archipelago as well.
Secondly, itreferred to the need to “safeguard the vital interest of the inhabitants of thenorthernmost parts of the country.” A look into the substance of that phrase revealsthat it concerns specifically the economic interests of the population. Thirdly, theNorwegian legislative act – the Decree – rests on historic title, the absence ofobjections to that Norwegian practice from the majority of states, the need tocontinue observing the legislation on the matter adopted before 1935 (the RoyalDecrees of 22 February 1812, 16 October 1869, 5 January 1881, and 9 September1889), as a rational, established and consistent system of legislative precedent.It should be noted that Norway’s drawing of baselines is, in terms of itsdomestic law, the prerogative of the Crown (the power of the King of Norway) asunambiguously affirmed by Law No.
57 dated 27 June 2003 On the Territorial Seaand Contiguous Zone of Norway (Art. 1). The King may set baselines by way ofadopting “Regulations”. Here, if there were no special prescriptions on straightbaselines, the applicable method to apply would be that of normal baselines – thatis, the “low-water line along the coast.” Norway, however, does not allow for suchinstances: provisions on straight baselines specifically are systematically made inthe practice.112At that, in its current legal policy, Norway is effectively relying on the ICJjudgment in its dispute with the UK of 1951 in its relations with foreign states tosubstantiate the legality of its straight baselines.
In particular, it invokes theCourt’s warning against interpretations in favour of the general applicability ofusing straight baselines, that is, the Court did not believe it necessary to apply thatmethod in all cases of indented coastline. On the one hand, by virtue of theobligation to apply the normal baselines method (the low-water line), one cannotdemand that the actor exercising the right, that is, the state, measure out the lowwater line for every single protruding or, conversely, indented fragment of thecoastline. That is often practically impossible in such cases; nor is it feasible. Onthe other hand, nobody can insist on applying the straight baselines method eachtime when there is an “indented” coastline.
As international lawyers have noted onmultiple occasions, one has to assess all factors in their entirety and conclude,which rule applies (on straight or normal baselines) based on the totality of thosefactors.Approximately one third of Norway’s mainland coast is found within thebounds of the Arctic (that is, beyond the Arctic Circle). That also confirms that the1951 ICJ judgment rendered in the Norway-UK dispute (in favour of Norway)continues to have value for assessing the legality of drawing straight baselinesalong the Arctic coast.Norway has also drawn baselines along the coast of the Jan Mayen Island,relatively distant from its mainland coast. Although the Island of Jan Mayen is notcharacterized by major indentations in its coastline or a multitude of islandssurrounding it, Norway has, under the Royal Decree of 30 June 1955, drawnstraight baselines across the extreme points of that island’s coast.
The segmentswith straight baselines along that island’s coast total seventeen.Norway displayed even greater political audacity and legal resourcefulnesswhen it drew straight baselines along the coasts of the Spitsbergen islands.Although Spitsbergen is part of the state territory of Norway, it enjoys aspecial status by virtue of the Spitsbergen Treaty of 1920, pursuant to which the113rights of other states in those islands are negligible. Norway, however, still drewstraight baselines around Spitsbergen based on the Royal Decree of 25 September1970 without any approval of the other state parties to that Treaty. This concernsthe straight baselines, i.e., along the Bear Island, Hopen, as well as other islands ofthe Spitsbergen archipelago. From the coordinates and straight baselines drawnusing them as stated in the Decree, Norway measured the breadth of the “territorialwaters of the localities” of Spitsbergen.The straight baselines along the entire coast of the Spitsbergen archipelagoare shown on the chart in Annex 7.
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