диссертация (1169188), страница 26
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The western and southern parts of theSpitsbergen archipelago islands are “contoured” by 57 segments of straightbaselines; Bear Island is outlined by 17 segments of straight baselines; Hopen – by8 such segments. The longest straight baseline runs up to 18.5 nautical miles.Used by Norway, these straight baselines turn big portions of the sea intointernal waters, which, according to some western lawyers, does not fit into “theland/water ratio”; indeed, that ratio here would yield minimal figures. The validityof drawing this sort of lines may be, according to such lawyers, open to doubtsince the southern and eastern parts of the archipelago are rather even and thatgeographical factors do not call for approaching the issue of drawing any specialbaselines.
Specialists also note that the coast of the Spitsbergen archipelago ischaracterized by the presence of many glaciers that, if they thaw, would complicateNorway’s task of proving “special circumstances” of a geographic nature.However, that criticism of Norway’s actions is quite low-key, based on“narrow” arguments put forward by isolated scholars. That criticism is alsoconsistently ignored by the Norwegian Ministry of Foreign Affairs. Moreimportantly, substantial criticism of Norway’s practice of drawing straightbaselines along Spitsbergen would be more efficiently built against a wider legalbasis, that is, in the context of the contemporary interpretation of the SpitsbergenTreaty of 1920.
It is true that the 1920 Treaty does not provide either for internalwaters or for any territorial sea for Norway around Spitsbergen; the Treatyprovides for a new maritime area – the “territorial waters of Spitsbergen”, where114the nationals of Norway and other state parties to the Treaty have equal rights. Forthis reason, Norway’s allotment of internal waters from the territorial waters ofSpitsbergen by way of drawing straight baselines around it is at variance with theTreaty.
But that argumentation is not found in western criticism.Let us turn to the prescriptions issued by Norway on 1 June 2001, drawingnew straight baselines around the Spitsbergen archipelago, different from those putinto effect by the 1970 Royal Decree.134 In a Norwegian publication, these changesare explained rather liberally: for instance, by “technical errors” made earlier; orby the underexplored geography of some of the areas due to severe natureconditions.135 The straight baselines in place now include even wider expanses ofthe sea.As part of its new legislation, Norway views the Spitsbergen coastline as“deeply indented and cut into”, having “a fringe of islands… in its immediatevicinity” pursuant to Art.
7(1) of the UNCLOS, which entitled it as the coastalstate to apply the straight baselines method connecting the appropriate points. Itshould be noted that in that regard, the 1920 Spitsbergen Treaty contains noprohibitions for such conduct by Norway.Tellingly, after the enactment on 1 July 2001 of the new Regulationsconcerning baselines along Spitsbergen, that change was notified to all state partiesto the Paris Treaty. The notification was made to every state individually – it wassent a copy of the new regulations in two authentic languages of the Treaty,English and French. The same procedure was followed in the enactment of the1970 Royal Decree.
Moreover, under Art. 16 of the UNCLOS,136 the list of newcoordinates of the Spitsbergen baselines after the adoption of the Regulations wasopen for the public and submitted to the UN Secretary-General.134Royal Decree of 25 September 1970 relating to the limit of the Norwegian territorial sea around Svalbard. The2001 prescriptions were subsequently affirmed by the Royal Decree of 1 July 2002.135Rolf Einar Fife, Kristian Jervell.
Elements of Nordic Practice 2000: Norway, Nordic Journal of International Law70: P. 555, 2001.136Art. 16(2) of the UNCLOS reads as follows: “The coastal State shall give due publicity to such charts or lists ofgeographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the UnitedNations.”115The practical value of Norway’s drawing of such straight baselines isunderstandable: the more distant Spitsbergen’s straight baselines are from thecoast, the greater maritime areas become Norway’s internal waters, and,accordingly, the further seaward stretch Spitsbergen’s territorial waters thatNorway regards as its territorial sea.
Norway further consistently ties its legislationon “national parks” in Spitsbergen (that include the “territorial waters of thelocalities of Spitsbergen”) with the issue of maritime boundaries and the regime ofthe sea. Thus, in accordance with Norwegian legislation, the governor ofSpitsbergen may prohibit the passage of vessels in the waters of the Spitsbergenlocalities, if they (waters) are a national park.137 In that context, the new straightbaselines mean the expansion of the waters of the national park.Denmark, along with other Arctic states, adopted Norway’s approach (as thebest approach protecting its economic and other interests) for the application ofstraight baselines in the Arctic. The principal document expressing Denmark’slegal position on this matter was the Royal Decree dated 21 December 1966 on thedelimitation of the territorial sea (as amended by Decree No.
189 dated 19 April1978). It should be noted that around three fourths of Greenland’s sea shore aresituated in the Arctic; as regards the legal framework for drawing baselines alongthe coast of Greenland, one can name the following legal sources:Executive Order No. 629 on the Fisheries Protection Zone in Greenland of1976 – it has established straight baselines along a part of the Greenland coast;Executive Order No.
176 of 1980 – draws normal baselines on the other partof Greenland, measured (Section 2 of the Order) from “the low-water line” withinfixed coordinates.In total, normative acts have designated 75 segments (in the southern part)and 82 (in the northern part) of Greenland, and those segments practically fullycover the island coast; straight baselines are drawn along them. The longeststraight baselines run for 65.6, 67.2 and 66.4 nm (the English spelling for the137Current Legal Developments, International Maritime Organization. International Journal of Estuarine & CoastalLaw, 44 (1988).116respective locations are Disco Bay, Umanak Fjord, Kane Basin) in the westerncoast, and 67.2, and 80.1 nm in the north, close to the Princess Dagmar Peninsula.Russia (just like the majority of other states) did not protest against suchstraight baselines.
That is, in this case, too, the international communityacquiesced to the drawing by Denmark as the coastal state of straight baselinesalong the Greenland coast,whoselengthsubstantiallyexceededthatunsuccessfully challenged by the UK before the ICJ in 1951.Canada drew straight baselines along its entire coast, including in the Arctic,under the Territorial Sea Geographical Coordinates Order of 1985, havingdivided its coastline into 139 segments. The longest baselines reach 99.2 and 99.5nm.The 1985 Territorial Sea Geographical Coordinates Order introduces theterm “Area 7”, that includes Canadian Arctic islands and the Canadian Arcticmainland, as well as the adjacent ice and water territories.On the whole, baselines along the Atlantic and Arctic coast of Canada do notrun solely straight.
The Order resolves the issue of drawing baselines on a case-bycase basis: Schedule I to the Order lists geographical coordinates to be connectedwith straight lines; Schedule II – along the low-water lines of the coastal mainland;and Schedule III – along the low-water lines off islands and low-tide elevations.Taken together, the Canadian Arctic is “contoured” by straight baselines in full.As to straight baselines “contouring” the Canadian Arctic, the issuance ofthat Order, as noted by analysts, also became a response to the “Polar Sea”expedition of a U.S.
coastal ship. The U.S. intended, without Canada’s consent, topass through the Northwest Passage. Prior to undertaking any such voyage, theU.S. had not requested Canada’s consent, assuming that the waters washing theshores of an island of a Canadian archipelago were subject to the regime ofinnocent passage for ships flying any state’s flag. Accordingly, the U.S. viewed theNorthwest Passage as a natural high-latitude route from the Atlantic to the PacificOcean and back, as an “international” one.117That point of view, however, found no sympathy in Canadian circles.Canada, represented by its Secretary of State for External Affairs J.
Clark, offereda thorough explanation of its position on 10 September 1985. The essence of thatposition is that Canada has special rights to those maritime areas; these are basedon the considerations of defence; Canada’s national control of navigation throughthe Northwest Passage has strategic importance for Canada; it is necessary to takeaccount of the threat of glaciers melting and freeing sea routes, thus opening a wayinto Canada; Canada in principle views all islands and maritime territories betweenthem comprising the Canadian archipelago, and the bodies adjacent thereto, as a“whole”; the baselines set forth by the 1985 Order establish the outer limit ofCanada’s historic internal waters”; 12 nm from those baselines should bemeasured as the breadth of Canada’s territorial sea.At the official level, the U.S.
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