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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. 162-163.169Voitolovskii G.K. Teoriya i praktika morskoi deyatel’nosti [Theory and Practice of Maritime Activities]. No. 5.Мoscow. 2005. P. 222.170Mezhdunarodnoe pravo i natsional’nye interesy Rossiiskoi Federatsii [International Law and the NationalInterests of the Russian Federation]. Otv. red. Kovalev A.A., Zimnenko B.L. Мoscow. 2008. P. 46-76.Mezhdunarodnye sudy: aktual’nye problemy mezhdunarodnogo prava [International Courts: Current Issues ofInternational Law]. Inter-university Collected Essays. No.
2(6). / chief. ed. Ignatenko G.V., ed. Lazutin L.А.Yekaterinburg: 2010. P. 23-42.152In this context, one has to note specifically the positive reaction to Russia’snew Arctic position (self-limitation of the shelf) from the U.S. and, at the sametime, the explanation why the U.S.
is not following the same self-limitationprocedure with its Arctic shelf under Art. 76 of the 1982 UNCLOS.As already observed in an authoritative American scholarly work, preparedby the US Congressional Research Service, “the United States has potentiallyoverlapping extended continental shelf areas with two countries in the Arctic –Russia and Canada. “The United States and the Soviet Union (now Russia) agreedto a maritime boundary, including in the Arctic, in 1990.
The treaty was approvedby the U.S. Senate in 1991; it has not been approved by Russia’s Duma. Pendingthe treaty’s entry into force, the two countries continue to provisionally apply theterms of the treaty. In determining its extended continental shelf limits, Russia hasrespected this agreement”.
Importantly, the U.S. further underlines, that “Russiahas not asserted an extended continental shelf in any areas that might beconsidered part of the U.S. continental shelf. The Russian submission to thecommission respects the U.S. – Russia maritime boundary.”171At the same time, the U.S. itself already has, as noted quite correctly, rightsto its Arctic shelf beyond 200 nm notwithstanding the UNCLOS, and the exerciseof those rights by the U.S. does not depend on its addressing the CLCS:“The commission is not a claims process, and continental shelf entitlementdoes not depend on going through this procedure.
The mandate of the commissionis instead to make “recommendations” on the “outer limits” of the continentalshelf. The word “claim” does not appear in Article 76, Annex II, or thecommission’s rules. Article 77 (3) and the case law of the International Court ofJustice indicate that continental shelf rights exist as a matter of fact and do notneed to be expressly claimed.”172171Ronald O’Rourke, Coordinator Specialist in Naval Affairs, Changes in the Arctic: Background and Issues forCongress. P. 15.
January 19, 2016. URL: https://www.fas.org/sgp/crs/misc/R41153.pdf172Ibid.153Another negative consequence of Russia’s 2001 “submission” is that it has“prompted” negative response from Canada, Denmark, Norway and especially theU.S. with respect to Russia’s perception of the shelf boundaries in the Arctic.173Thus, Canada’s refusal to support Russia’s submission to the CLCS indiplomatic note No.
0145 of Canada’s Permanent Mission to the UN dated 18January 2002 (the note was addressed to the UN Secretary-General) wassubstantiated as follows:“The Permanent Mission of Canada to the United Nations has the … honourto inform the Secretary-General that Canada is not in a position to determinewhether it agrees with the Russian Federation’s Arctic continental shelf submissionwithout the provision of further supporting data to analyse and that Canada’sinability to comment at this point should not be interpreted as either agreement oracquiescence by Canada to the Russian Federation’s submission.”Hence, before the 2001 submission, and notably in the Soviet period,Canada unequivocally agreed to the limits of the USSR’s Arctic sector; while theUSSR agreed to those of Canada’s Arctic sector.In 2001, by submitting to the Commission and abandoning sectoralboundaries, Russia has delivered a strike to that Soviet-Canadian accordmaintained for decades and reflected in many Canadian and USSR maps.
At that,the strike affected the Arctic interests of both Canada and Russia.Russia’s departure from sectoral boundaries was all the more treacherousback in 2001, as Canada had not yet become a party to the UNCLOS, and,accordingly, at that time it was unable to address the Commission to designate theouter limits of its shelf like Russia.Nevertheless, in the aforementioned diplomatic note, Canada tried to reasonwith the Russian agencies, pushing them to think that it was not the boundary ofthe Arctic shelf they had drawn for the Commission that was key, nor what the173Annex I hereto contains a summary of the official reviews of Canada, Denmark and the U.S.
to Russia’s 2001“submission” (“application”) under Art. 76 of the UNCLOS.154Commission would reply to that; the key was that Canada and Russia woulddelimit Arctic shelf among between themselves:“The Permanent Mission of Canada to the United Nations also wishes tonote that the Russian Federation submission on the limits of its continental shelfbeyond 200 miles to the Commission on the Limits of the Continental Shelf andany recommendations by the Commission in response are without prejudice to thequestion of delimitation of the continental shelf between Canada and RussianFederation.”174That is, the Canadian Government assumes that the “delimitation of thecontinental shelf between Canada and Russian Federation” may be doneimmediately, independent of the Commission.For the same international legal reasons, Russia’s submission to theCommission was left without Denmark’s support as well.
In Denmark’s UNmission’s note of 4 February 2002 addressed to the UN Secretary-General“concerning receipt of the submission made by the Russian Federation to theCommission on the Limits of the Continental Shelf,” it is noted that:“Denmark is not able to form an opinion on the Russian submission. Aqualified assessment would require more specific data. Such absence of opinion atthis moment does not imply Denmark’s agreement or acquiescence to the RussianFederation’s submission.”And further, the document of Denmark (which, just like Canada, had notbeen party to the UNCLOS at the time) also tactfully makes it clear that theprincipal thing was the agreement between Russia and Denmark on thedelimitation of Arctic shelf, rather than the boundary that Russia portrayed in its“submission to the Commission” and not the “actions of the Commission”:“[T]he actions of the Commission shall not prejudice matters relating todetermination of boundaries between States with opposite or adjacent coasts.Consequently, the Russian Federation’s submission and the Commission’s174United Nations.
Canada: Notifications regarding the submission made by the Russian Federation to theCommission on the Limits of the Continental Shelf./CLCS.01.2001.LOS/CAN.26 February 2002.155recommendations are without prejudice to the delimitation of the continental shelfbetween Denmark / Greenland and the Russian Federation.”175It is important to underscore here that Denmark’s international legal positionaccording to that document is that neither “the Russian Federation’s submission”,nor “the Commission’s recommendations” could affect what was key – that is,how “the delimitation of the continental shelf between Denmark / Greenland andthe Russian Federation” would be carried out.Norway, too, did not support Russia’s 2001 submission to the Commission,but agreed to other arguments, defending its national interests: namely, to seekRussia’s agreement to deem the Spitsbergen island Norway’s shelf during thenegotiations on the delimitation of the Barents Sea.
Thus, a note by the PermanentMission of Norway dated 20 December 2001, addressed to the UN SecretaryGeneral, read, “regarding receipt of the submission made by the RussianFederation to the Commission on the Limits of the Continental Shelf, with anExecutive Summary of the Russian submission”, it was noted that Norway’scommentaries related “to the unresolved delimitation issue between Norway andthe Russian Federation with regard to the continental shelf in the Barents Sea.” Thenote then drew a long list of coordinates of the area of the Barents Sea where “theNorwegian and Russian claims cover an overlapping area.”176That the U.S.
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