диссертация (1169188), страница 29
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155-FZ dated 31 July 1998 On Internal MaritimeWaters, Territorial Sea and Contiguous Zone of the Russian Federation, FederalLaw No. 191-FZ dated 17 December 1998 On the Exclusive Economic Zone of theRussian Federation, and other Russian laws.This new concept also takes account of the ILC commentaries to the Articleson the Law of the Sea (1956); the international commentary to the UNCLOS (UNConvention on the Law of the Sea. 1982.
A Commentary. Volumes I-VI. Editor-inChief M.H. Nordquist, General Editors S.N. Nandan and S. Rosenne. MartinusNijhoff Publishers. Dordrecht/Boston/London. 1985-1992. Vol. II. 1993); thestudy by the UN Secretariat “Juridical regime of Historic Waters, IncludingHistoric Bays”, document A/CN.4/143.
Study prepared by the Secretariat.Yearbook of the International Law Commission, 1962, v. II, pp. 1-26); and, the ICJjudgments cited above.That is, the suggestion is to replace the List of Geographical Coordinates ofthe Points Defining the Position of Baselines for Measuring the Width of theTerritorial Waters, Economic Zone, and Continental Shelf of the USSR, approvedby the Resolution of the Council of Ministers of the USSR dated 15 January 1985,with an act of legislation of the Russian Federation based on the above newconcept.128Compared to the 1985 List, shaping a system of straight baselines alongRussia’s Arctic coast would result in an increase of Russia’s internal maritimewaters in the Arctic region within the framework of the existing international law.More specifically, the creation of a new List of straight baselines alongRussia’s Arctic coast would reflect, to the largest extent permissible, the nationalinterests of the Russian Federation in the Arctic, in accordance with the applicablegeneral international law, taking into account the practice of legislativeformalization already in the 21st century of straight baselines by such Arctic statesas Canada, Norway, Iceland, as well as bearing in mind the international legalpractices of solving baselines-related issues.148Moreover, that would take account of the special economic interests of theRussian Federation in specific regions, historically belonging to Russia, such as,for instance, the White Sea, the Chosha and Baydaratskaya Bays, the Vilkitsky,Shokalsky, Dmitry Laptev, Sannikov, and Kara Straits; as well as Professor F.F.Martens’s doctrinal substantiation of why the Kara Sea is Russia’s historic waters.The new concept of drawing baselines along Russia’s Arctic coast in theArctic corresponds to Russia’s effective Arctic laws.
Pursuant to the Federal LawOn Internal Maritime Waters, Territorial Sea and Contiguous Zone of the RussianFederation, a straight baseline for measuring the breadth of the territorial seameans:“a straight baseline, connecting the furthest seaward points of islands, reefsand rocks where the coastline is deeply indented and cut into, and where there is afringe of islands along the coast in its immediate vicinity;“a straight line drawn across the mouth of a river flowing directly into thesea, between the points on the low-water line of its banks;148For more details, see: Vylegzhanin A.V., Dudykina I.P. Mezhdunarodno-pravovoe osnovanie Daniei, Kanadoi iNorvegiei ustanovlenie pryamykh iskhodnykh linii v Arktike [International Legal Grounds for Denmark’s,Canada’s, and Norway’s Drawing of Straight Baselines in the Arctic].
/ Moscow Journal of International Law. No.1. 2017. P. 28-40.129“a straight line not exceeding 24 nautical miles, connecting the low-waterline points at the natural mouth of the bay or strait between islands or between anisland and the mainland, whose shores belong to the Russian Federation;“a system of straight baselines of over 24 nautical miles long connecting thepoints in the natural mouths of such bays or straits (between islands or between anisland and mainland) that have historically belonged to the Russian Federation.”As part of the fundamental applicable international law rules, the newconcept has adopted the following UNCLOS provisions:- the drawing of straight baselines must not depart to any appreciable extentfrom the general direction of the coast, and the sea areas lying within the linesmust be sufficiently closely linked to the land domain to be subject to the regimeof internal waters;- straight baselines shall not be drawn to and from low-tide elevations,unless lighthouses or similar installations which are permanently above sea levelhave been built on them or except in instances where the drawing of baselines toand from such elevations has received general international recognition;- the system of straight baselines may not be applied by a State in such amanner as to cut off the territorial sea of another State from the high seas or anexclusive economic zone; and, most importantly,- where the method of straight baselines is applicable, account may be taken,in determining particular baselines, of economic interests peculiar to the regionconcerned, the reality and the importance of which are clearly evidenced by longusage.The updated List of straight baselines should take into account the wholevariety of geographical situations in specific regions of the Arctic zone of theRussian Federation, the availability of historic title and other specialcircumstances, the above practice of other Arctic states in this field.
Special noticeshould be given to the fact that in the Arctic Ocean, in view of its perennial icecover, the heightened ecological vulnerability of the region, the relatively smalldepths, and other natural differences from other oceans, special responsibility of130the five Arctic states for sustainable development and environmental protection ofthe Arctic region, as well as the obligation to prevent harm to the habitat of theindigenous peoples of the North, there has formed a body of special (different fromother regions) practice of coastal states as regards the drawing of straight baselinesthroughout the coastline adjacent to the Arctic Ocean seas.Further, within the to be List of straight baselines along Russia’s coast in theArctic, account should be taken of the fact that international law does not prescribethe maximum length of a straight baseline, or the total length of all such baselinesfor a particular coastal state.
Federal Law No. 155-FZ dated 31 July 1998 and theUNCLOS provide only for the maximum length of a straight baseline of 24 nm,closing a bay, but even that restriction does not apply if the state qualifies the bayin question as an historic one.Nonetheless, it is noted that, firstly, the ICJ has always determined (as afact) the line of specific straight baselines in resolving an interstate dispute;secondly, the practice of states, primarily that of Norway and Canada, is evolvingtowards drawing increasingly long straight baselines in the Arctic for the purposesof enforcing environmental legislation.As to the length of the coastal state’s coastline, it has been observed abovethat this factor is legally relevant for applying the proportionality test. Even moreimportant is the widely cited conclusion of the ICJ to the effect that “the coast ofthe territory of the State is the decisive factor for title” to the maritime areas,“adjacent to it.”149It is not by virtue of participation in a specific international treaty, but ratherdue to their having a coast in the Arctic Ocean seas that Russia, Canada, Norway,Denmark (Greenland), and the U.S.
is exercising sovereignty over their internal seawaters and continental shelf, as well as their EEZs in the Arctic.A considerable length of Russia’s coastline entails that the total length of thestraight baselines proposed along Russia’s Arctic coast will also be greater thanthe total length of such lines of any of the other Arctic states.149I.C.J. Reports 1982. P. 61.131In terms of theory, it has been suggested that Russia should take into accountthe legal position adopted during the period of the Russian Empire: namely,include the entire Kara Sea into Russia’s internal waters. The most authoritativechampion of that position, allowing for the legality of such a daring legal act byRussia is the famous international lawyer, international arbitrator, counsel to theEmperor of Russia on international legal matters, F.F. Martens. That position,however, was not endorsed by the Russian Emperor.The key arguments for an international legal substantiation of the newconcept of straight baselines for Russia in the Arctic proffered are as follows.1.
By way of interpretation of the applicable rules of international law, theICJ in 1982 confirmed, that “the coast of the territory of the State is the decisivefactor for title” to the maritime areas “adjacent to it.” As the Russian Federationhas the longest sea coast opening to the Arctic Ocean, it is exercising sovereigntyin the Arctic region over its territorial sea, limited rights to natural resources, to thecontinental shelf, and has established an EEZ by a piece of domestic legislation.The breadth of all these maritime areas is measured from baselines.2. In accordance with international law, the coastal state shall apply: 1)normal baselines, i.e., the low-water lines along its sea coast; and 2) straightbaselines, joining the seaward points of the coast selected by the coastal state.3. The right to draw straight baselines rests on international custom.
It is alsofound in Art. 4 of the 1958 Convention on the Territorial Sea and ContiguousZone (hereinafter, the 1958 Convention) and Art. 7 of the UNCLOS.4. The provisions on straight and normal baselines are not related to eachother as a rule and exemption from it.Such provisions (on straight and normal baselines) are not subordinated toeach other. Rather, they concern different factual instances falling under differentrules: thus, coastal states more often apply straight baselines “where the coastlineis deeply indented and cut into, or if there is a fringe of islands along the coast inits immediate vicinity”; in other cases, coastal states generally use normalbaselines.1325. In international law doctrine, one can find the following predominantlegal position: the practice of interested coastal states, the recognition (includingacquiescence) of that practice by other states, and their belief that it is lawful arethe elements forming the respective international customary rules – in furtheranceof the broadly phrased treaty rules.
In that context, for instance, scholarscharacterize the practice of states drawing straight baselines of considerable length:120 nm (Guinea, Law of 3 June 1964); 89 nm (Mauritania, Decree of 21 January1067); 220 nm (Burma, Presidential Decree of 15 November 1968), etc. As notedabove in the foreign doctrine by international law experts, most states do notbother to protest against such baselines which are established contrary to theapplicable international law. In general, the international customary law, as well asthe abovementioned 1958 Convention and 1982 UNCLOS provide for relativelyprecise rules on drawing baselines, including straight ones, although many statesthat have adopted straight baselines have construed such rules very liberally.6.
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