диссертация (1169188), страница 28

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is drawing their baselines not by adopting a federal statute on thelist of coordinates, but rather by another legal means, involving the publication ofmaps or charts depicting the baselines. An analysis of such maps on the U.S.Arctic coast has not yielded any straight baselines there. That is, by now, the U.S.is the only state of the Arctic five with no straight baselines along its Arctic coast.Judging by the dates of release of the available maps, the U.S.

Arctic coast is, for anumber of reasons (inaccessibility, underpopulation, lack of economic feasibilityso far), insufficiently studied from the mapping standpoint. Therefore, thepossibility of newer mapping materials depicting the U.S. straight baselines in itscoasts in the Chukchi and Beaufort Seas appearing in the future cannot be ruledout.- Among Arctic states, Canada has the longest straight baselines in the coastopening to the Arctic Ocean seas, and more such baselines than any other state.

Forinstance, Canada has straight baselines of over 90 nm long along its Arctic coast;neither Russia, nor the other Arctic states have any baselines of such length in theirArctic coast.Below are the data on the maximum length of straight baselines along thecoasts of Arctic states according to the English authorities cited here.Norway has three straight baselines along its Arctic coast exceeding 40 nm.In the coast towards the Arctic Ocean, Denmark has two straight baselinesexceeding 50 nm in length; and four more 40 to 45 nm long.In the coast opening towards the North Pole, Iceland has two straightbaselines of over 50 nm long, both almost identical in length (one of 57.2 nm, and123the other one of 57.1 nm).

There are two more amounting to 33 and 37 nm,respectively; other straight baselines do not exceed 24 nm.The “Canadian Arctic islands” or “Canada’s Arctic archipelago” includesseveral “smaller” archipelagos, such as the Parry Islands. The Arctic archipelago isseparated from the mainland by numerous straights under the common officialname, “the North-West Straits” or the “Northwest Passage.”In its legislation on the “Canadian Arctic”, Canada has “contoured” all of itsislands with straight baselines, defining the islands as “a whole” with the mainland,and having included into that whole vast sea areas, including those covered by ice.Canada’s straight baselines system thus closes in the host of islands ofCanada’s Arctic archipelago, thereby disallowing, from the legal perspective, freetransit of foreign vessels through the North-West Straits “piercing it.” Canada’slongest baselines equal 92.1 and 99.5 nm.This practice of the Arctic states is, without doubt, to be taken into accountin the work on Russia’s drawing of new straight baselines along its Arctic coast.

Itis also possible to consider the technical international guidelines for drawingmaritime boundaries: by now, there is a number of such guidelines, first andforemost, on the technical aspects of fulfilling the UNCLOS, issued by the UNSecretariat with references to documents of other international organizations.At the same time, Russia should expect to have to take account of theabundant geographical situations in specific areas of its Arctic coast, the presenceof historic title and other special circumstances there, as well as the factorscommon for all such areas.It should also be noted, in the relations of the Russian Federation with stateparties to the UNCLOS, that treaty prevails over the 1958 Geneva Conventions onthe Law of the Sea (under Art.

311 of the UNCLOS), whereas in Russia’s relationswith non-parties to the UNCLOS (e.g., the U.S.), the 1958 Geneva Conventionsapply independent of the UNCLOS. All treaty provisions should apply “in thecontext and against the background” of the applicable international customary law.124Due to the complex structure of the international law applicable to drawingbaselines, and the compromise nature of the wording of the treaty provisions citedabove, the ways states, that are to different extents interested in and capable ofapplying straight baselines, look at them, might not coincide.In the “teachings of the most highly qualified publicists” on the internationallaw (which, according to Art. 38 of the ICJ Statute, belong to the “subsidiarymeans for the determination of rules of law”, along with case law), it is noted thateven the practice of individual states, other states’ recognition (even tacit) of thatpractice, their belief that it is legitimate, form the respective customary rules ofinternational law.

This is why a positive opinion in the doctrine, for instance, onthe practice of states drawing the abovementioned straight baselines ofconsiderable length (120 nm (Guinea, Law of 3 June 1964); 89 nm (Mauritania,Decree of 21 January 1067); 220 nm (Burma, Presidential Decree of 15 November1968), etc.), is highly relevant.

A state should consider the predominant positivedoctrinal evaluation of the practice of drawing straight baselines with considerablelength after the adoption of the UNCLOS, too: for instance, in 1985 by Canada(over 99 nm); in 2001 and 2002, by Norway (over 40 nm), etc.As already noted above, Russia currently uses a list of coordinates ofbaselines set forth by the Resolution of the Council of Ministers of the USSR in1985 (hereinafter, the 1985 List or Resolution). It should be emphasized that thesaid List had been in the works even before the country acceded to the UNCLOS.It is well-known that a state’s participation in an international treaty means that thetreaty becomes effective for that state; the UNCLOS was signed by the SovietUnion, but was never ratified by it.

The somewhat hasty drafting of the 1985Resolution played a role, too – in light of the perestroika policy of M.S.Gorbachev. In that political environment, some baselines of the 1985 List wereestablished to the detriment of the country’s geostrategic and economic interests,and, on top of that, without scientifically justified arguments in their favour (fromthe standpoint of international law). One fact would suffice as an example. Nostraight lines were drawn along the entire coast of the Franz Josef Land125archipelago, whereas only several such lines were established selectively. At thesame time, it was clear that in such a high-latitude region, almost year-roundcovered by ice, applying normal baselines (the “low-water line”) is a juridicalconstruct isolated from reality. It is also confirmed by the contrast between“modest”, selective straight baselines along separate parts of the Franz Josef Landand those fully “contouring” the Norwegian Spitsbergen archipelago (see Annex 8,prepared as part of my participation in research commissioned by the Ministry ofEconomic Development of Russia).For the decades after the approval of the said 1985 List, there have beenrather material developments.

In 1994, the UNCLOS entered into full force andeffect, and in 1997, it was ratified and became effective for Russia. The notoriousdramatic changes in the geopolitical situation due to the dissolution of the USSRalso occurred during that period. For the last decades, a number of states have setnew lists of straight baselines along their coasts, often based on contemporaryinterpretations of the applicable international legal rules, including a new readingof the legal propositions implied in the ICJ judgment of 1951.It becomes clear from the foregoing that the new geographical coordinatesfor the baselines of the Arctic coast of present-day Russia should not be a“patched-up” version of the 1985 List; such specification should be innovative interms of re-defining and re-drawing Russia’s baselines along its Arctic coast,smartly reflecting the current balance of global, regional, and bilateral levels ofdetermination of maritime boundaries, harmonious with the practices of otherArctic states on drawing straight baselines in the Arctic discussed above.It should also be considered that because of the reduction of the area ofperennial ice in the Arctic Ocean due to abrasive and other natural processesresulting in the sea advancing to the shore in Russia’s Arctic seas, theconfiguration of Russian coastline is undergoing substantial changes as comparedto the 1985 situation.A comparison of the currently available data on the changes of Russia’scoastline in the Arctic with the respective rules of the UNCLOS on baselines126reviewed above, shows the lack of prospects in preserving on baselines in theArctic the references to normal baselines along most of the Arctic coast in theRussian legislation, primarily due to the inconstancy of the coastline as a result ofthe abovementioned natural causes.

The procedure of drawing straight baselines insuch circumstances that would follow the examples of Canada, Denmark (Iceland),and Norway, indicates potential: lines are similarly drawn between selected points,but they remain unchanged despite the subsequent changes of the “low-water line.”Moreover, that prevents the concern that using normal baselines along Russia’sArctic coast would require monitoring them, their regular revision due todestructive processes, the thawing of ice in the proximity to Russia’s coastline inthe Arctic Ocean seas, which would create risks of disputes on the specific locationof maritime boundaries.Essentially, the new concept for drawing Russian baselines in the Arcticproposed as part of my involvement in the research referred to above(commissioned by the Ministry of Economic Development of Russia) is to drawalong most of Russia’s Arctic coast, including island coast; instead of specifyingthe location of the numerous geographical points along it that form the low-waterline in the meaning of the 1985 Resolution; straight baselines in accordance withinternational law, as well as straight lines closing historic bays, subject to thepractice of other Arctic states.Thereby:- the number of geographical points will be considerably reduced;- the internal waters of the country will somewhat increase, while the outerlimits of Russia’s territorial sea, EEZ, and continental shelf will become moredistant from the coastline towards the North Pole;- Russia will make legally clear the limits of its internal sea waters,territorial sea and EEZ in the Arctic; it would thus prevent internationalcontroversies, for example, as to whether a particular maritime area is subject tothe right of innocent passage of foreign vessels;127- Russia will create a more transparent legal environment for implementingthe international legal rules on the conservation of the marine environment in thesea areas adjacent to its Arctic coast.The appeal of this new concept of drawing Russia’s baselines in the Arcticalso implies fewer financial costs for setting the coordinates of such baselines ascompared to the 1985 methodology.The concept of specifying the list of geographical coordinates of the pointsdefining the position of straight baselines and serving as starting points formeasuring the breadth of the territorial sea and the outer limit of the contiguouszone and EEZ of the Russian Federation as such fully complies with the applicablegeneral international law, the rules of the UNCLOS (ratified by the RussianFederation), Federal Law No.

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