диссертация (1169188), страница 27
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has voiced a protest against the 1985 Order andthe above statement of the Canadian Minister, asserting that Canada’s legal claimshad no international legal ground. The U.S. noted that, in its opinion, Canada’sposition affected the existing international legal regime of straits always used forinternational navigation.It should be noted that the U.S. diplomatic note of 26 February 1986 is notthe only protest the U.S. has expressed against Canada’s Arctic policy of drawingstraight baselines in the Arctic.
As early as 1 November 1967, the U.S. stated in itsnote that Canada’s actions “are not legitimate”, they are “in contradiction to theestablished principles of the International Law of the Sea” and that the U.S. doesnot recognize Canada’s straight baselines and reserves its and its nationals’ right touse the waters in question.Nevertheless, on 11 January 1988, Canada and the U.S. signed the ArcticCooperation Agreement that did not “affect the respective positions” of the parties,including to the effect that “all navigation by U.S. icebreakers within watersclaimed by Canada to be internal will be undertaken with the consent of theGovernment of Canada.” That, of course, should be deemed a legal victory on118Canada’s part in the protection of its rights in the Arctic and the internationallegitimacy of Canada’s straight baselines along its Arctic coast.Special notice should be given to the fact that in ratifying the UNCLOS on 7November 2003, Canada, by way of a declaration under Art.
310 of the UNCLOS,reserved its discretion as to which body would make the decision affirmingCanada’s rights in the Arctic region and under which procedure. Canada filed adeclaration with the UN Secretariat, refusing to accede to the mandatory procedureof resolving certain disputes under the UNCLOS. The disputes listed couldconcern the issues of delimitation, especially when related to “historic” bays;issues of armed conduct; enforcement measures in exercising sovereign rights; aswell as matters resolved with the involvement of the UN Security Council.Drawing straight baselines in the Arctic is one of the components of thelegal basis relied on by Canada for exercising its exclusive rights in that region.For the same purposes, Canada adopted special laws on navigation in the Arcticwaters, the relevant normative legal acts on environmental protection, the saidTerritorial Sea Geographical Coordinates Order of 1985138 that established straightbaselines around the Canadian Arctic archipelago.
An additional measure wasCanada’s adoption of a law, pursuant to which the scope of federal and locallegislation was expanded to cover offshore maritime areas (Canadian LawsOffshore Application Act). Subsequently, that law was repealed due to theadoption of the Oceans Act of 1996.139As noted, Canada’s international legal position on baselines in the Arcticwas legally formalized by the Territorial Sea Geographical Coordinates Order of1985 140 that drew only straight baselines around the entire Canadian Arcticarchipelago. That document’s Preamble specially notes a historical fact – the138Territorial Sea Geographical Coordinates (Area 7) Order, S.O.R./85–872 // Canada Gazette Part II, Vol.
119, No.20, at 3996 (10 Sept. 1985).139On Canada’s treaties and main legislative acts on the Arctic see: Ivanov I.S., Vylegzhanin A.N. (Eds.).Arkticheskii region: problemy mezhdunarodnogo sotrudnichestva [The Arctic Region: Issues of InternationalCooperation]. Vol. 3. Primenimye pravovye istochniki [Applicable Law].
М. 2013. P. 125-139, 360-389.140Territorial Sea Geographical Coordinates (Area 7) Order, S.O.R./85–872 // Canada Gazette Part II, Vol. 119, No.20, at 3996 (10 Sept. 1985).119duration of the effect of Canadian sovereignty over the waters of the CanadianArctic archipelago (“Whereas Canada has long maintained and exercisedsovereignty over the waters of the Canadian Arctic archipelago.”).
In his statementin this regard, Canada’s Secretary of State for External Affairs noted that the saidstraight baselines defined the “outer limit of Canada’s historic waters.” 141 Asmentioned above, the waters towards the shore off the baseline of the territorial seaconstitute a state’s internal waters (Art.
8 of the UNCLOS). The same is true forthe so-called “historic” waters. Thus, in the situation in question, Canada is“combining” legal arguments – both with respect to historic waters, historic title,and as regards the legal validity of straight baselines.
Taken together, thosearguments reinforce Canada’s international legal position.That Canada’s actions for drawing straight baselines in the Arctic are notinconsistent with the international legal rules was also shown by an Americanspecialist in international law – contrary to the official position of the U.S.Department of State.142 The American scholar J.
Klotz substantiated the legality ofCanada’s special jurisdiction in the “Canadian Arctic”. Firstly, according to him,that special jurisdiction is largely lawful from the standpoint of the five universallyrecognized grounds for the exercise of national jurisdiction (the principles ofterritorial supremacy; protection of national interests in case of a threat to thesecurity of the state; exercise of jurisdiction with respect to the state’s ownnationals irrespective of their location or with respect to aliens who committed acrime against the state’s own nationals; protection of “erga omnes” interests, forthe purposes of combating piracy, slavery, etc.).143 Secondly, according to thatAmerican lawyer, the exercise of special environmental jurisdiction is – accordingto the current international environmental law – Canada’s obligation, too.141Statement Series 85/49.
10.09.1985 at 3.142See, e.g.: John C. Klotz. Are Ocean Polluters Subject to Universal Jurisdiction – Canada Breaks the Ice. // TheInternational Lawyer, Vol.6, No. 4, October 1972, P. 706.143See also George F. Extraterritorial Application of Penal Legislation // 64 Michigan L.R. 609 (1966); Cowles D.Universality of Jurisdiction Over War Crimes //33 CALIF. L.
REV. 177 (1945); Carnegie, Jurisdiction OverViolations of the Laws and Customs of War // 39 BRIT. Y.B. INT’L.L. 402 (1963).120The Government of Canada underscored multiple times that Canada’sexpansion of its national legislation in its Arctic sector was due not only to itsnational interests, but to the interests of the whole of mankind, which wouldobjectively benefit from the protection of the Arctic environment, all the more sogiven that there are no efficient international legal rules to that effect.
Thus, theCanadian Prime Minister P. Trudeau once made the following statement: “…whereno law exists, or where law is clearly insufficient, there is no international commonlaw applying to the Arctic Seas, we’re saying somebody has to preserve this areafor mankind until international law develops.”144In sum, the Canadian legislation on straight baselines is organically tied tothe concept of historic title and Canada’s special conservational interests in theArctic; that approach is supported by the rules of existing international law.The Agreement on Arctic Cooperation between the Government of Canadaand the Government of the United States of America signed in 1988 145 isillustrative – since the US was the most vocal in objecting to Canada’s legislationon baselines and historic rights in the Arctic, in advocating making absolute theprinciple of freedom of navigation there (essentially, for legally equating the iceblocks of the Arctic to the iceless waters of the World Ocean, without taking intoaccount environmental, historical and legal factors).The 1988 Canada-U.S.
Agreement comprises five articles. The first onedeclares the mutual recognition by the two Governments of “particular interests”and the two countries’ responsibility as the neighbouring Arctic states. Theyfurther affirm that navigation and resource development in the Arctic must notadversely affect the unique environment of the region and the well-being of itsinhabitants (Article 2). The key wording of the 1988 Agreement is found in the lastparagraph of Article 3, “The Government of the United States pledges that allnavigation by U.S.
icebreakers within waters claimed by Canada to be internal willbe undertaken with the consent of the Government of Canada.”144Press conference of Prime Minister Trudeau. April 8, 1970 // 9 INT. LEGAL MATERIALS 601 (1970).145Canada Treaty Series 1988/29. OTTAWA, 1989.121There is an opinion that in exchange for that treaty clause important forCanada, it allegedly promised de facto not to impede the passage of the U.S.icebreakers along Canada’s Arctic coast.146 From the legal standpoint, there is littlesense in trying to see if that opinion is true or a mere speculation: first of all, the1988 Agreement provides for no such official obligation of Canada; secondly, anagreement is always a compromise; thus, even if there had been an oral agreementof that kind, it would not have affected the value of the 1988 Agreement from theperspective of the 1969 VCLT.
At the same time, the parties provided for thefollowing in Art. 4 of the 1988 Agreement: “Nothing in this agreement ofcooperative endeavor between Arctic neighbours and friends nor any practicethereunder affects the respective positions of the Governments of the United Statesand of Canada on the Law of the sea in this or other maritime areas or theirrespective positions regarding third parties.” In the western literature oninternational law, the instances where the parties actually leave the respective issue“open” under an agreement should be interpreted to mean that even absent aprotest that would entail no acquiescence or estoppel.147§ 4. Options for specifying the location of the baselines along the coast ofthe Russian Federation in the Arctic, in the context of foreign internationallaw doctrinesAbove, I have set out the legislative approaches of Arctic states to theirdrawing of baselines along their coast:- Norway, given the fact of indentation of the Arctic coast by fjords andskerries was the first of the five Arctic states to draw its straight baselines in theArctic Ocean mainland coast in a single, uninterrupted, integral system.
That is, atpresent, Norway’s mainland coast in that region has no sections where normalbaselines would be used; straight baselines cover 100% of its coast. In 2002,146See, e.g., Melting ice threatens sovereignty over Arctic waters: expert // CBC News, 14 Jun 2006. – Electronicsource - www.cbc.ca.147MacGibbon I.C. The Scope of Acquiescence in International Law. – British Year Book of International Law,Vol. 31, 1954, P.143.122Norway specified the location and the geodetic basis of its straight baselines (firstset, as we may recall, in 1935) and announced their changes. In effect, Norwaypublished the entire list of Norwegian straight baselines “anew”, having confirmedthat by a relevant Royal Decree.- Straight baselines in the entire Arctic coast of Greenland were establishedby Denmark under a Royal Decree that came into force in 2004.- The U.S.
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