диссертация (1169188), страница 30
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On 15 January 1985, the Council of Ministers of the USSR adopted theResolution approving the List of Geographical Coordinates of the Points Definingthe Position of Baselines for Measuring the Width of the Territorial Waters,Economic Zone, and Continental Shelf of the USSR. Before that, neither theRussian Empire, nor the USSR set forth, at the legislative level, geographicalpoints or lines to measure the breadth of the territorial sea along the Arctic coast.7.
At the level of international law doctrine, the Arctic Ocean seas, whoseshores belong fully to the state territory of the USSR (the Kara, Laptev, EastSiberian Seas), were included in the Soviet historic waters. Taking that intoaccount, as foreign scholars (cited above) observe, the Resolution of the Council ofMinisters of the USSR dated 15 January 1985 contradicts previous doctrinalassertions that all Arctic Seas along the Russian coasts in the Arctic are historicwaters of the USSR.8. The 1985 Resolution was interim and provisional.First, at that time, the country was yet to accede to the UNCLOS whichitself had not yet entered into force.133Second, in 1985, it was thought that most of the Russian Arctic coast wasnot sufficiently explored to conclusively map out the straight baselines at that time:consequently, those lines were never drawn along most of the country’s Arcticshores.Third, from 1970 on, the geodetic methods have successfully developedglobally, and, in the 1990s, it became possible to use space tools to determine thelocation of the furthest seaward islands and capes in rather high resolution.Fourth, by the present day, inaccuracies have been detected in the positionof the points of the baselines determined back in 1985, and in some cases evenmaterial errors have been identified in them.
For that reason, the appropriateresearch has been completed to define the current position of straight baselinesalong Russia’s Arctic coast.Fifth, corrections to the lines defined in 1985 are also necessary due to theintroduction of new international coordination geodetic systems. At present, it hasbeen recommended that the coordinates of all points of straight baselines shouldbe calculated in the new WG S84 global system (World Geodetic System, 1984),employed in satellite navigation as well.9. Being a state whose coast opens to the Arctic Ocean, Russia is currentlydrawing re-defined straight baselines along its Arctic coast in accordance with theapplicable international law, subject to the geographic characteristics of that coast,economic factors, historic title, and other special circumstances.10.
International law does not oblige Russia as an Arctic coastal state to seekapproval of the geographical coordinates of its straight baselines from other statesor any international authority. At the same time, Russia does not establish suchstraight baselines arbitrarily, but rather strictly in compliance with the above treatyrequirements, the general international law, its customary element, taking intoaccount the legal positions of other Arctic states.11.
From among the five states of the world, whose coasts open to the ArcticOcean (and that have their territorial sea and continental shelf, and haveestablished their 200-mile EEZs there), only the U.S. is actually following the134approach, according to which baselines are drawn along the low-water line of theArctic coast. All other Arctic states (Norway, Russia, Canada, Denmark) have setstraight baselines along their Arctic coasts; Russia did so in combining them withthe normal baselines method. Canada, Denmark, Iceland, and Norway have fully“contoured” their Arctic coasts with straight baselines only, having therebysubstantially “accreted” the maritime part of their state territory.12.
Russia, in currently specifying the location of baselines along its Arcticcoast, is also meticulously taking into account those international customary rulesof drawing straight baselines that were indicated by the ICJ in its decision in adispute between the UK and Norway in 1951. More specifically, Russia has takeninto account:that the ICJ positively resolved the issue of legality of Norway’s drawing ofstraight baselines;that the ICJ reminded that baselines for measuring the breadth of theterritorial sea may be drawn in several ways, including in parallel to the curvaturesof the coast (the “trace parallèle” method); straightening to some extent thecurvatures and indents of the coast (the straight baselines method); drawing arcsjoining certain points of the coast. Where the coastline is indented or cut into, thebaseline may be defined only by geometric construction:that the Court decided, “In such circumstances150 the line of the low-watermark can no longer be put forward as a rule requiring the coastline to be followedin all its sinuosities.
Nor can one characterize as exceptions to the rule the verymany derogations which would be necessitated by such a rugged coast: the rulewould disappear under the exceptions. Such a coast, viewed as a whole, calls forthe application of a different method; that is, the method of base-lines which,within reasonable limits, may depart from the physical line of the coast…”;that the ICJ noted that “several States have deemed it necessary to follow thestraight baselines method and that they have not encountered objections ofprinciple by other States.”150That is, when the coast is indented or cut into.13513.
As part of this new concept, it is proposed to draft new prescriptionsconcerning straight baselines along the Arctic coast of the Russian Federation.Such new lines should partly confirm, and partly replace those set forth by the1985 Resolution of the USSR Council of Ministers.14. The above legal propositions on the geographical characteristic of theArctic Ocean, the Arctic coast of Russia and four other Arctic states show that:А. Most of Russia’s Arctic coast, from the west to the New Siberian Islands,is little or no different from the Arctic coasts of Canada, Denmark (Greenland),Norway, as well as the Norwegian Spitsbergen archipelago (with its specialinternational status), along which only straight baselines have been drawn. Thatpart of the Russian Arctic coastline falls under both grounds for drawing straightbaselines: 1) the coastline here is deeply indented and cut into, and 2) there is afringe of islands in the immediate vicinity of the coast.B.
A smaller portion of Russia’s Arctic coast (namely, east of the NewSiberian Islands) can also be deemed somewhat curvy, with islands present closeto the coast. The legality of Russia’s drawing of straight baselines along that partof its Arctic coast, too, to give Russia’s territorial sea belt a simpler form, is alsoaffirmed by the positive statement in the 1951 ICJ judgment (on the state practiceof drawing straight baselines even where only minor curvatures of the coastline arepresent, as far as simplifying the territorial waters belt goes).C. Russia agreed with Canada’s, Denmark’s (Greenland’s), and Norway’sdrawing only of straight baselines along their Arctic coasts; no objections, letalone protests, have been made on Russia’s part in any form in that regard.Against that background, Russia is expecting the same attitude from Arcticstates towards its own legislative act on specifying the location of its baselines inthe Arctic, namely, on drawing only straight baselines along Russia’s Arctic coast.D.
Russia notes that the 1951 ICJ judgment cited above reflects, accordingto the ILC, a “restatement of the existing law.”That further reinforces the lawfulness of Russia’s drawing of such straightbaselines along its Arctic coast.136E. The undeniable peculiarities of these ice-bound and water areas of theRussian Arctic consist in the fact that, for centuries, due to their high-latitudelocation and tough weather conditions, they have not been used and are notcurrently used for international navigation, but, at the same time, they have forcenturies been of economic interest only for the population of Russia, the coastalcommunities of the Russian Arctic, including its indigenous, low-numberedpeoples.
Traditionally, even the high-latitude traces of the Northern Sea Route (letalone those running in the immediate vicinity to the Russian coast) have been usedprimarily for domestic carriage, first and foremost, to supply the population of theRussian North by way of “Northern Delivery”. This is precisely why the Russianfederal legislation qualifies the Northern Sea Route as a “national transportationline”, and the Government-approved Rules of Navigation along the Northern SeaRoute Traces have been observed, in practice, by foreign shipowners as well.F. Russia takes into account that the said legal prescriptions of the ILC arereflected in the 6 volumes of international commentary to the UNCLOS(hereinafter, the Commentary), which by now is the most representative andwidely cited one.
The following explanations of the treaty provisions on baselinesfound in the Commentary, as well as the potential approaches to interpreting them,and references to preparatory works, also reinforce the legal validity of Russia’sdrawing of the said straight baselines along its Arctic coast:- assessing the legal meaning of Art. 7 of the UNCLOS (on straightbaselines), the authors of the Commentary stress that the key terms used therein areborrowed from the 1951 ICJ judgment in the dispute between the UK and Norway;- the Commentary emphasizes that Art. 7 of the UNCLOS provides for twogeographic circumstances expressly directing the state to use the straight baselinesmethod.
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