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P. 122.). Let us specify: international law is, ofcourse, “fully” applicable to the Arctic. One can only object against artificially narrowing it down, confining itexclusively to the 1982 UNCLOS, simultaneous with “emphasizing” Art. 76 of that Convention; against theallegation that Russia under that Article must self-limit its shelf, irrespective of whether other Arctic states do thesame.158“The Commission shall consist of 21 members who shall be experts in the field of geology, geophysics orhydrography” - Art. 2 of Annex II to the 1982 UNCLOS. For more details, see: Kovalev А.A.
Sovremennoemezhdunarodnoe morskoe pravo i praktika ego primeneniya [Contemporary International Law of the Sea and thePractice of Its Implementation]. Мoscow. 2003. P. 222.147that part of the ocean floor of Russia’s Arctic sector could no longer be used byRussian nationals based on Russia’s legislation on the subsoil and continental shelf;those resources could be disposed of only in accordance with the “the rules,regulations and procedures” of the International Seabed Authority (Art. 137 of theUNCLOS). Fortunately for Russia, no positive recommendation of the Commissionwas adopted for its 2001 “submission”. As noted by Professor S.A.
Gureev in theFederation Council, that technical disruption delayed Russia’s losing over 330,000sq.m. in its Arctic sector.159 However, Russia’s 2001 “submission” (“Submission”)still had adverse consequences: the 2001 self-restrictive boundary of the Arctic shelfdrawn by Russian agencies has been publicized and is still featured on the CLCS’sofficial website, which is relevant for the future application of the “estoppel” ruleagainst Russia.The second doctrinal stance reflects the “classic”, “old” approach – that ofthe Russian Empire and the Soviet Union. According to that conceptual approach,the Arctic was the subject of traditional legal regulation by Arctic states; theArctic was not the subject of special attention at the 3rd Conference on the Law ofthe Sea; instead, its legal regime had emerged long before the adoption of theUNCLOS, and the key about that regime was not the UNCLOS, but rather theapplicable customary international law, historic title, which takes account of therole of the Arctic states’ domestic legislation.
That is, the high-latitude Arctic isthe subject matter of both the domestic law of the Arctic states and internationallaw, without the latter being confined to the UNCLOS. Let alone to one of itsarticles – Art. 76, since the provisions of that article (on the boundary between thecontinental shelf and “the common heritage of mankind”), just like the entire PartXI (on the “Area” as “the common heritage of mankind”), at present, are notcustomary.159Gureev S.A. and Bunik I.V.
O neobkhodimosti podtverzhdeniya i pravovogo zakrepleniya isklyuchitel’nykh pravRossii v Arktike [On the Need to Confirm and Legally Fix Russia’s Exclusive Rights in the Arctic]. – Morskayadeyatel’nost’ Rossiiskoi Federatsii: sostoyanie i problemy zakonodatel’nogo obespecheniya [Maritime Activities of theRussian Federation: State and Issues of Legislative Implementation]. Ed by.
V.A. Popov. Мoscow. 2005. P. 162-163.148In line with the first (“new”) position, the paragraph on the “Arctic”sometimes comes not in the chapter on territory (which is more frequent inRussian160 and foreign161 international law textbooks), but in the chapter on theinternational law of the sea. 162 Authors of such books suggest applying theUNCLOS to the ice-bound northern regions, as well as the subglacial areas of theocean floor. At that, they emphasize the importance of Art. 234 of the UNCLOSfor the protection of the interests of the Arctic states.163 Indeed, according to thatarticle, the coastal state may adopt rules to protect the environment in such “icecovered areas”, as well as “enforce” such rules; the scope of Art. 234, however, islimited only to the 200-mile EEZ.
Beyond the 200-mile limit in the Arctic, thatarticle does not safeguard Russia’s interests with respect to its Arctic shelf.This is how the essence of Russia’s new Arctic position was showcased:“There is an international legal basis to solve the Arctic problems – the UNConvention on the Law of the Sea, 1982. The Convention defines the act of stateswishing to expand the boundaries of their continental shelf: thus, pursuant toArticle 76, a state should file an application (a submission) with the UNCommission on the Limits of the Continental Shelf, which was what Russia did in2001.”164Let us note the evident inaccuracies.
It is impossible to “expand theboundaries of the shelf”; boundaries are lines; one can only specify, or change thelocation of the boundary. If the author meant “expanding the area of thecontinental shelf”, that, too, is legally incorrect. A state cannot “expand” its160It is correct, in my opinion, that status of the Arctic is not discussed in the chapter (section) on the InternationalLaw of the Sea by most Russian textbook authors, e.g.: Mezhdunarodnoe pravo [International Law].
Chief ed.Kolosov Yu.M., Krivchikova E.S. Мoscow. 2005; Mezhdunarodnoe pravo [International Law]. Ed. by А.А.Kovaleva, S.V. Chernichenko. Мoscow. 2006; Mezhdunarodnoe pravo [International Law]. Chief ed. IgnatenkoG.V., Tiunov O.I. Мoscow. 2006, etc.161Shaw M.N. International Law. 4th Ed. Cambridge University Press. 1977. P. 363-364.162Kolodkin А.L. The Arctic. – In: International Law / chief ed. V.I.
Kuznetsov, B.R. Tuzmukhamedov. Мosco.2007. СP. 609-612.163“In accordance with Art. 234 of the Convention on the Law of the Sea of 1982 … Russia may adopt laws andregulations in this region providing for stricter measures than those enacted internationally, for instance, by theIMO.” – Kolodkin А.L. Op. cit. С.
611.164Izvestiya, 16 April 2009.149continental shelf. As noted by the ICJ, a state possesses the continental shelf thatalready is “the natural prolongation or continuation” of its territory underwater.Defining the limits of the shelf is “not apportionment” of the shelf. “What confersthe ipso jure title which international law attributes to the coastal State in respectof its continental shelf, is the fact that the submarine areas concerned may bedeemed to be actually part of the territory over which the coastal State already hasdominion.”165The same position was expressed by the representative of the RussianMinistry of Foreign Affairs, Ambassador A.V. Vasiliyev: “We have filed theSubmission to expand the limits of our shelf, primarily in the Arctic Ocean, withthe UN Commission on the Limits of the Continental Shelf, back in 2001.”166Here, the employee of the Russian MFA (Ministry of Foreign Affairs)commits the following errors on top of the ones noted above: there is no such thingas the “UN Commission on the Limits of the Continental Shelf” he refers to; thephrase “expand the limits of our shelf” is legally incorrect.
The main defect of suchan approach is that the champions of the new Arctic position are misrepresentinglegal qualifications, claiming that: 1) Russia must observe Art. 76 of the UNCLOSin the Arctic (that is, designate a border between the Russian shelf and theInternational Seabed Area) – and, therefore, must lose at least 300,000 sq.
m. ofshelf in its sector; 2) other than Art. 76 of the UNCLOS, there is no legal basis toprotect Russia’s rights to its shelf in the Arctic.This approach is incorrect both from the standpoint of international lawtheory and practice.The main flaw of the “new” Arctic position is that it leads to a loss of spacefor Russia (loss of the originally presumed Russian shelf – area “A” exceeding330,000 sq. m.).
This does not, first of all, take into account the legally relevantfactor of acquiescence by the majority of states in the world of Russia’s, Canada’s165I.C.J. Reports 1969. P. 22-31.166Vasil’ev А.V./ Arktika: novyi vektor razvitiya [The Arctic: A New Vector for Development] //Arktika.Ekologiya i ekonomika [The Arctic. Ecology and Economy]. No.
1. 2011. P. 22.150and other Arctic states’ historic titles in the Arctic, the regional legal regime thatcame into being in that region long before the UNCLOS that accounts for thegeographic, climate and other unique characteristics of the Arctic region.Stating that such characteristics are present, the French lawyer F.
deHartingh in his books sets out the scheme of high-latitude Arctic divided bysectoral boundaries (as per the Treaties of 1825 and 1867, and the Canadian andSoviet legislation) and notes that the USSR admirably used (“sait admirablementutiliser”) natural factors and the international political environment (“laconjuncture politique international”), for expanding its state sovereignty in theArctic and for imposing on other states the evidence of its penetration (“temoins sapenetration”) into that region.”167We should, however, observe here that, at the moment, sectoral delimitation ofthe Arctic shelf is not viewed by legal scholars as the principal option acceptable forall Arctic states.
Maps are frequently published that delimit the Arctic shelf along theequidistance line.The criticism of Russia’s new policy expressed by governmental agencies in1997 – 2001 (that is, of the position where area “A” no longer constituted Russia’sshelf) has been voiced by the legislative authorities. At a 2005 round table held byRussia’s Federation Council, it was demonstrated that that governmental approachmeant – for the first time in the country’s history – abandoning a part of the seabed inRussia’s Arctic sector; without the consent of the legislative power.
The FederationCouncil’s materials stated, as part of such criticism:“The Ministry of Natural Resources of Russia has spent considerable financialfunds to organize and conduct studies of the configuration of the Arctic Ocean floor,where part of the results of such studies have been submitted to the Commission onthe Limits of the Continental Shelf”; that “the approach that the then leaders of theMNR (Ministry of Natural Resources) and MFA opted for in 2001, was not legallyoptimal, and was wrong from the standpoint of Russia’s strategic interests in theArctic. The reason why it was not optimal is that it had an inherent risk of putting167F. de Hartingh.
Les conceptions sovietiques du droit de la mer. Preface par A. Gros. Paris. 1960. P. 38.151before a rather recently formed Commission the historically established and vastnational interests of the Russian State in the Arctic. And it is wrong for the followingreasons: firstly, in 2011, the Russian Federation had no obligation to submit anapplication to the CLCS and reveal to the Commission the respective naturalscientific data on the Arctic Ocean floor. Secondly, by submitting such anapplication, Russia has for the first time, officially and internationally, limited itsrights in the Arctic sector, whose limits are set forth in the effective legislation,namely, the Resolution of the Presidium of the CEC of USSR dated 15 April1926… Thirdly, Russia has, for the first time, expressed its willingness to extendthe International Seabed Authority’s jurisdiction to the Arctic seabed (whichclearly does not correspond to Russia’s long-term interests).
Fourthly, other Arcticstates, and, first and foremost, the U.S. (not party to the UNCLOS) and Canada (isparty to the UNCLOS) have not limited their continental shelf in the Arcticaccording to the procedures set forth by the 1982 UNCLOS.”168This criticism of the Russian Government’s new position was also supportedby the Deputy Chairman of the Scientific and Expert Council of the MaritimeCollegium with the Government of the Russian Federation:“The Russian Federation has voluntarily self-limited the scope of its claims tonatural resources in the Arctic (Izvestiya, 17 April 2002), having short-sightedlydenounced Russia’s reserve.”169 From the perspective of general theory that criticismwas, as already noted by scholars, endorsed by inter-university and universitystudies.170168Gureev S.A.
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