диссертация (1169188), страница 36
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Secondly, the U.S. would be interested in an even greater selflimitation by Russia under Art. 76 of the 1982 UNCLOS of its shelf in the Arctic –as compared to area “A” which Russia already abandoned in its 2001“submission”. In that way, an even bigger portion of the seabed in Russia’s Arcticsector would become high seas seabed for the U.S. (that is, an area free forexploiting natural resources for western marine subsoil users).In that context, that is, the strategic inexpedience of the 2001 “submission”both for Russia and the Western Arctic states, and the world, the opinion in foreignscholarship that Russia’s hasty 2001 submission to the CLCS is “surprising”,179appears to be fair.In Russian publications, the employees of the Legal Department of theRussian Ministry of Foreign Affairs claimed that the governmental decisions of178The author does not mention the Geneva Maritime Convention on the Law of the Sea 1958.
– Cohen A. FromRussian Competition to Natural resources access: Recasting US Arctic Policy. June 15. 2010. P.11.179Elferink A.G.O. The Outer Continental Shelf in the Arctic: the Application of art. 76 of the LOS Convention in aRegional Context / The Law of the Sea and Polar Maritime Delimitation and Jurisdiction. P. 153.1611997 – 2001 are not a mistake; that at that time, there existed real expectations thatthe US, too, would shortly self-limit their shelf north of Alaska; that Russia had tofulfil Art.
76 of the UNCLOS specifically in the Arctic.180 But even assuming thatthere was no mistake, one has to admit that none of the other Arctic coastal stateshas, since 2001, self-limited its shelf like Russia in its Arctic sector under Art. 76of the UNCLOS, that is, none of them has abandoned a single square kilometre inits Arctic sector. Furthermore, the avenue outlined in the “submission” made bythe Russian MFA in 2001, ended in a deadlock:- Russia’s Art.
76 “submission” of 2001 (an “application” using the term ofthe Russian authorities) has not received the Commission’s consent, but the line,self-limiting the Russian shelf under that “submission” has already been publicizedon the UN website, in Anglo-American doctrines, on maps and charts, and isperceived as Russia’s official waiver of over 330 thousand sq.km of its Arcticshelf;- the Commission on the Limits of the Continental Shelf (CLCS), createdunder the UNCLOS, as well as the states which received the Russian “submission”from the Commission, including non-parties to the UNCLOS (primarily the U.S.)demand more and more new scientific data from Russia;- the outer limit of the Russian shelf claimed in its “submission” infurtherance of Art. 76 of the UNCLOS, that coincides with the boundary under the1867 Russian-American Treaty, cannot be supported by the geological criteria,envisaged in Art.
76 of the UNCLOS; seeing that, any thinking lawyer wouldcondemn Russia of bad faith observance of Art. 76.Moreover, with the existing objections from Arctic states to Russia’ssubmission, especially on the part of the U.S., that submission in the legal conceptof 2001 has no real prospects of gaining the Commission’s support, even if Russiagratuitously hands over to it all the data on the Arctic Ocean floor it has.181180For a more detailed summary of these publications see Alexander N. Vylegzhanin, Elena S.
Molodtsova, Inna P.Dudykina Foreign Research of the Law Applicable to Delineation and Delimitation of the Arctic Shelf.181Deputy Chairman of the Scientific and Expert Council at the Maritime Collegium under the Government of theRussian Federation has correctly concluded that “the path the Russian Federation chose in 1997 – 2001 not only162There are also theoretical objections against the new Arctic position leadingto Russia’s loss of area “A” claimed in the 2001 “submission” (and repeated in the2015 “submission” as will be noted below). This new position rests on Russia’sobligation under Art.
76 of the UNCLOS. However, Art. 76 does not make part ofthe international customary law applicable to the Arctic as was noted above.We should also note the correlation between Art. 76 and Art. 83 of theUNCLOS. Even if Russia indeed had been obliged to perform Art. 76 in the Arctic(given that not only the U.S., but also Canada and Denmark had no such obligationat that time), even in that case Russia would have had to take account of clause 10of Art.
76, “The provisions of this article are without prejudice to the question ofdelimitation of the continental shelf between States with opposite or adjacentcoasts.” The latter question is decided based on Art. 83 of the UNCLOS. Thepriority of Art. 83 (on the delimitation of shelf between neighbouring states) overArt.
76 (on the boundary between the shelf and the “common heritage ofmankind”) is also underscored by Art. 9 of Annex II to the UNCLOS – to theeffect that the actions of the CLCS “shall not prejudice matters relating todelimitation of boundaries between States with opposite or adjacent coasts.” Thispriority, also confirmed by Art. 134(4) of the UNCLOS,182 is equally noted in themulti-volume commentary thereto, “Paragraph 10 is a saving provision for allquestions regarding the delimitation of overlapping claims between States tocontinental shelf. It provides that the determination of the outer limits of thecontinental is “without prejudice” to the delimitation of the continental shelfbetween States with opposite or adjacent coasts.
This provision emphasizes thatarticle 76 prescribes the method of determining the outer limits of the continentalshelf; it does not address in any way the question of delimitation of the continentalshelf between opposite or adjacent States which is addressed exclusively in articleoffers no economic benefit, but also opens up no prospects from the legal standpoint. The more geological dataRussia submits to the Commission, the more new issues will arise. At that, obtaining such data costs millions ofdollars” (Voitolovskii G.K. Vzglyad na sistemnoe morepol’zovanie [A View on Systemic Use of the Sea].
Мoscow: KRAFT+. 2009. P. 426).182On the scope of Part IX (on the international seabed area): “Nothing in this article affects… the validity ofagreements relating to delimitation between States with opposite or adjacent coasts.”16383. This distinction is reinforced by Annex II, article 9, which provides that theactions of the Commission on the Limits of the Continental Shelf in making itsrecommendations on the basis of data and other material submitted by the coastalState does not in any way affect “matters relating to delimitation of boundariesbetween States with opposite or adjacent coasts.” The distinction is furtherreinforced by article 134, paragraph 4, which provides that nothing in Part XI“affects the establishment of the outer limits of the continental shelf … or thevalidity of agreement relating to delimitation between States with opposite oradjacent coasts.”183That is, by virtue of Art.
76(10), Russia was entitled to fulfil Art. 83 – inregard to agreeing on the line delimiting its shelf with Canada, Denmark as Arcticstate parties to the UNCLOS with coastlines opposite to Russia. With the US andNorway, as noted, Russia had already delimited the shelf.That Russia’s submission is “surprising” (in the words of the DutchProfessor Elferink cited above), is confirmed by other considerations as well.Above, I have provided the foreign doctrinal projections, and it is far from a solidfact that the US will accede to the UNCLOS at all, given that it had not done so for30 years since its signing. But even if the U.S. does become party to the UNCLOS,with respect to its Arctic shelf, it will not observe Art.
76 (on the boundarybetween the shelf of the coastal state and the “common heritage of mankind”), butrather it will observe Art. 83 (on the boundaries between the shelf of the US and aneighbouring state with an adjacent or opposite coast). The fundamental rejectionby the U.S. of the very idea of limiting national rights to sea subsoil in favour ofthe “common heritage of mankind” is clearly confirmed by official documents ofthe US Senate.The intent of the US is not to assume financially burdensome mechanisms ofthe “common heritage of mankind”, disadvantageous for American investors, to183UN Convention on the Law of the Sea 1982.
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