диссертация (1169188), страница 31
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The first one is where the coastline “is deeply indented and cut into”, andthe second one is where there is a fringe of islands in the immediate vicinity” ofthe coast. The first attribute was taken without any modifications from the cited1951 ICJ judgment, while the latter is a somewhat altered version of the wordingused by the ICJ in the same judgment with respect to an instance where a number137of islands of varying size are located along the coast so as to form an uninterruptedchain along the coastline. Both these geographical circumstances are characteristicof the majority of Russia’s Arctic coast;- the proposed straight baselines along Russia’s Arctic coast satisfy bothrequirements outlined in the Commentary based on Art. 7(3) of the UNCLOS: 1)such lines follow the general direction of the Russian Arctic coast, reflect itsgeneral configuration and have no visible departures from the general direction ofthe coast; 2) the sea areas situated towards the coast from those lines aresufficiently closely linked to the mainland: they are the object of subsistence forRussia’s coastal communities, first of all, of fishing and traditional hunting for seaanimals, practised by indigenous, low-numbered peoples.
None of these areas hasbeen the object of foreign economic activities carried out outside of Russia’slegislative regulation. On the contrary, any activities in such regions have been forcenturies subject only and exclusively to Russia’s legislation.The close link between the sea areas adjacent to the coast from the redefined straight baselines, and Russia’s mainland, together with the undisputedextension of Russia’s domestic legislation to such areas, are sufficient for theinternational legal consolidation there of the legal regime of Russia’s internalwaters practised for a long time, and never objected to in the practice.G.
In drawing straight baselines along its Arctic coast, Russia proceeds froman understanding that neither treaty nor customary rules of international lawprovide for the maximum permissible length of a straight baseline or its maximumdistance from the coast. In defining the location of a straight baseline under itsdomestic law, Russia, however, is interested in a positive legal reaction to thatlegislative measure from other states, a preliminarily balanced consideration, asthe ICJ put it, of the “legal positions of other states”. That is true also for the legalposition of the U.S. – the only foreign state with a coast to the Arctic Ocean thathas not drawn any straight baselines along it.
Respecting the right of the U.S. todraw or abstain from drawing straight baselines along its coast, Russia takes intoaccount the U.S.-published chart depicting a high seas area in the central Arctic138beyond the 200-mile EEZs of Russia, the U.S., Canada, Denmark (Greenland) andNorway. On that chart, Russia’s 200-mile EEZ is shown as measured frombaselines even more distanced from Russia’s Arctic coast than in the presentsubstantiation that follows the “maximum” scenario.15.
The proposed concept of selecting points for straight baselines alongRussia’s Arctic coast is seen as fully compliant with the requirements of theapplicable international customary and treaty law, including the UNCLOS. Thatmethod is also in line with the established international practice and, first andforemost, with the legislative practice of Arctic states described above.To sum up the results of research set out in Chapter 2, I have been ableto make the following conclusions.1.English-language international law doctrines save for a rare exception;positively view the practice of Norway, Denmark, and Canada of drawing onlystraight baselines along the Arctic coast of those states. Thus, such doctrinesdistance themselves from the selective protests of the U.S. against such straightbaselines.2.The analysis of substance of the applicable legal documents and therelevant mapping materials accumulated and summarized here, shows to whatextent the economic and other general state interests of Russia as a country, whosecoast opens to the Arctic Ocean, are materially affected by the international legalmeans used to draw baselines along the Russian coast.3.The price and strategic prospects of that issue for the development ofthe country’s economy is underscored, first of all, by the fact that Russia’smainland coast opening to the Arctic Ocean is the longest in the world ascompared to the coasts of other Arctic states.
That said, the value of space as aresource of any coastal state in the context of increasing international economiccompetition is inevitably growing.4.That Russia has such a long coast in the Arctic Ocean, in turn, is a factconstitutive of title. By virtue of that fact, Russia has here vast areas of internalwaters, the territorial sea and continental shelf. Due to the same fact, Russia had a139right, and, exercising it, established an EEZ by a domestic law. The breadth of allthe above maritime areas of Russia, save for its internal waters, is measuredseaward from its baselines.
Russia’s internal waters and their floor are situatedtowards the coast from the baselines. Objectively, there are preconditions foraccreting the sea component of Russia’s state territory by way of drawing, inaccordance with international law, specified straight baselines along the entirelength of its Arctic coast.5. Three out of five Arctic states (Norway, Canada, Denmark (as far asGreenland is concerned)) have drawn straight baselines in accordance with theapplicable international law along their entire Arctic coasts, that is, first of all,subject to the geographical characteristics of their coasts, economic factors,historic title, and other special circumstances.
The objections of the U.S. againstCanada’s straight baselines do nothing to alter Canada’s legislative position.Iceland, being a state, whose territory also overlaps with the Arctic Circle, has“contoured” its coast exclusively with straight baselines.6. The effective international law provides for opportunities allowingRussia, as a state coasting on the Arctic Ocean, provided that this step isaccompanied by competent political, legal, administrative and economic support,to duly formalize considerable acquisitions of space by way of specifying thelocation of its baselines.
Under the applicable customary and treaty rules ofinternational law, Russia is not obliged to have its legislative act on baselinesapproved by any other state, the UN, or another international organization.7. Russia is yet unilaterally to ensure that its legislative act is notinconsistent with the applicable international law, and fits into the precedentcreated primarily by Norway and Canada, has a clear geographical, economic andlegal rationale for the international community, and is followed by Russia’sgradual performance of its obligation to indicate such baselines on the respectivenaval charts.8. This study of the legislative practice, including that of Norway, Canada,Denmark (Greenland), and Iceland, for the drawing of straight baselines along140their Arctic coasts, points to legal opportunities for Russia’s claiming greater areasof internal maritime waters by way of drawing straight baselines along the entireRussian coast in the Arctic, as compared to the straight baselines drawn along asmaller portion of the country’s Arctic coast under the Resolution of the Council ofMinisters of the USSR of 1985.
The straight baselines method, discussed in detailby the ICJ in its decision in the UK-Norway dispute rendered in 1951, appears tobe the principal legal instrument for realising such opportunities.9. The above analysis of ILC Commentary to the Articles on the Law of theSea concerning a coastal state’s drawing of baselines has shown that the ICJjudgment, to the extent it related to the lawfulness of straight baselines, wasadopted by the ILC on the substance and elaborated further. Subsequently, thatapproach (this time, as interpreted by the ILC) was taken into account by the statesparticipating in the 1st UN Conference on the Law of the Sea in 1958 and reflectedin the official text of the 1958 Convention on the Territorial Sea and ContiguousZone.10.As to the economic grounds in support of the legality of drawingstraight baselines, the ICJ proceeded to assess the economic importance ofdelimitation of maritime areas for the local population.
As regards the topic ofstraight baselines Russia may draw, it would be legally relevant that Russians have“from time immemorial” carried out economic activities in the sea areas adjacentto Russia’s territory, and those were crucial for the local economy. Portions of thesea in that case are defined by drawing straight lines between the selected points ofdesirable sites. All that, being extremely important for the locals, including thelow-numbered indigenous peoples of the Russian North, was continuing for a longtime, having formed a sort of “a long usage” that should be duly taken into accountfrom the legal standpoint.11.The international legal substantiation of the new (re-defined) straightbaselines in this dissertation demonstrates that Russia’s application of the straightbaselines method for its entire Arctic coast is warranted by special weather,geographic, economic and historic considerations, is confirmed by long, constant141and consistent use, the lack of objections from other states, and should thus bedeemed lawful as such.
The very method of drawing such more “ambitious”baselines focuses on general international law and is oriented at certain principlesthat are legally calculated, founded on fact, balanced, and far from isolated fromthe current international life. They are shared in the Russian and Anglo-Americaninternational law doctrines.12.It is not realistic, in the current legal environment, to implement theSoviet doctrine of including all Arctic seas in the state’s Arctic sector into historicwaters and, accordingly, to measure the Russian State’s territorial sea from thestraight lines closing those seas.13.At the same time, the other extreme is also unacceptable – a flat-outrefusal of expanding the country’s sovereignty to most areas of those Arctic seasby drawing excessively “modest” straight baselines as per the perestroika 1985Resolution of the Council of Ministers of the USSR.14.The new system of straight baselines along the present-day Russia’sArctic coast, being the middle ground between these “marginal” legal approaches,thoroughly takes account of the legislative practices of other Arctic states ondrawing straight baselines, including in combining that international legalinstitution with treaty provisions on historic title.15.At that, Russia does not have to seek anyone’s approval of themaximum length of its straight baselines, given that in practice states draw straightbaselines of varying length, including up to 220 nm.
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