диссертация (1169188), страница 37
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A Commentary. Ed.-in-Chief M. Nordquist. V. II. 1993. P. 883.(Italic type is added. – I. Zh.)164abstain from ratifying the UNCLOS, but instead to promote the national legislativeregulation of exploitation of sea subsoil, including at greater depths.In 1980, the US adopted the Deep Seabed Hard Mineral Resources Act184vesting American companies with the right to exploit mineral resources of theseabed beyond the continental shelf of the coastal state, including in the areasbelonging, under the UNCLOS, to the “common heritage of mankind”.
Accordingto H. Collins, irrespective of the US participation in the UNCLOS, the 1980 Actallows American companies to exploit seabed subsoil beyond nationaljurisdiction.185Furthermore, in 2006, an American company incorporated in the State ofCalifornia, United Oil and Gas Consortium Management Corp., sent a letter to theUN General Assembly as well as the governments of Arctic states and the“Peoples of the World” announcing that in order to facilitate peaceful relationsbetween the Arctic States and to provide to the nations of the world oil and gasenergy using environmentally safe techniques, the Consortium notifies of its“exclusive rights” to explore and exploit the mineral resources of the area of the“common heritage of mankind” in the Arctic Ocean.Being free from any obligations to delineate its Arctic shelf under Art.
76 ofthe UNCLOS, the U.S. has, since 2003, been drawing a representative map of theseabed of the Arctic Ocean and the continental shelf beyond its 200-mile EEZ,using, among others, geological and scientific data submitted by Russia in supportof its “application” of 2001.In the U.S. academic doctrine, some scholars have opined that theAmericans have already proven that they can successfully defend their rights andclaims in the Arctic without being party to the UNCLOS. 186 The national interests184Collins, Harry M.
Deep Seabed Hard Mineral Resources Act - Matrix for United States Deep Seabed Mining; 13Nat. Resources Law. 571 (1980-1981).185Ibid.186Ariel Cohen, op. cit.; Steven Groves, “LOST in the Arctic: The U.S. Need Not Ratify the Law of the Sea Treatyto Get a Seat at the Table,” Heritage Foundation WebMemo No. 1957, June 16, 2008, athttp://www.heritage.org/Research/InternationalLaw/wm1957.cfm; U.S.
Department of State, “Defining the Limitsof the U.S. Continental Shelf,” at http://www.state.gov/g/oes/continentalshelf (October 15, 2008).165of the US in the Arctic are better protected, according to such doctrinal views, byway of entering into bilateral agreements as well as promoting the US legal policyin multilateral international fora, such as, for instance, the Ilulissat Conference.187It is unsurprising, then, that the American doctrines, with just a fewexceptions, strongly recommend the US to abstain from ratifying the UNCLOS.Thus, in particular, А. Cohen, senior research fellow with the Center for ForeignPolicy of the Heritage Foundation, gives rather specific recommendations to theUS Administration, reproduced above, “in opposing Russia’s territorial claims inthe Arctic, but… without joining LOST.”188Accordingly, the international legal scenario where the US would not limitits continental shelf in the Arctic under Art.
76 of the UNCLOS, is taken as themost likely one in American political and legal studies. This means that the otherscenario embedded in the Arctic legal position of the Russian Federation in 19972001 (based on the assumption that the US, too, would self-limit its shelf underArt. 76 of the UNCLOS), should be deemed unlikely.§2. The legal practice of Norway and Denmark of making “partialsubmissions” to the Commission on the Limits of the Continental ShelfIn 2001, the Commission on the Limits of the Continental Shelf (the CLCS)did not issue, under Art. 76 of the UNCLOS, a positive recommendation onRussia’s submission. Consequently, an issue arose on the subsequent designationby Russia in its “application” of the area it does not view as its shelf that,nonetheless, is located within its Arctic sector.
The Russian submission of 2001was not partial, that is, Russia did not mention possible future claims to area “A”after additional studies.187Arctic Ocean Conference, “The Ilulissat Declaration,” Ilulissat, Greenland, May 27–29, 2008, at http://arcticcouncil.org/ filearchive/Ilulissat-declaration.pdf188Ariel Cohen, Ph.D. From Russian Competition to Natural Resources Access: Recasting U.S.
Arctic Policy, June15, 2010 http://www.heritage.org/research/reports/2010/06/from-russian-competition-to-natural-resources-accessrecasting-us-arctic-policy#_ftn57166That shortcoming in Russia’s 2001 position was noted by Norway. In 2006,Norway, being a state party to the UNCLOS, also addressed the CLCS with a“submission” (an “application”). That prompted authors of English language legalstudies to assert that the right way that would be followed by all other Arctic stateswas only to submit data to the Commission under Art. 76 of the UNCLOS.A study concerning the limits of continental shelf in polar regions by DeputyDirector at the Netherlands Institute for the Law of the Sea Professor ElferinkA.G.O.
notes inter alia:“Norway made a submission in relation to the Norwegian Sea, Barents Seaand Arctic Ocean in 2006…“The recommendations of the CLCS on a number of points diverge to someextent from Norway’s submission. For instance, the subcommission dealing withthe Norwegian submission had indicated that the data provided by Norway in theArctic Ocean in one case did not sufficiently prove the location of the foot of thecontinental slope and recommended Norway to employ a more landward point.Norway subsequently submitted additional information, which resulted in a moreseaward foot of slope point. This new point also led to a more seaward location ofthe outer limit of the continental shelf.
The summary of the recommendations ofthe Commission indicates that the Commission will in principle work towardsrecommendations through a dialogue with the submitting state. Norway hasamended or supplemented the original submission on more than one occasion orproposed different points. Norway has indicated that it will comply with therecommendations of the Commission. The Norwegian Minister of Foreign Affairshas declared that the recommendations provide a basis on which Norway canestablish the limits of its continental shelf in the High North.”189At the same time, an analysis of Norway’s experience of exercising its Art.76 rights shows that the principal objective for Norway was to protect its nationalinterests in the north, rather than the ridiculous performance of an obligation under189Elferink A.G.O.
The outer limits of the Continental shelf in the Polar region./ The Law of the Sea and PolarRegions. Eds. E. J. Molenar, A.G.O. Elferink and D.R. Rothwell. Leiden. Boston. 2013. P. 77-79.167Art. 76 of the UNCLOS. Firstly, unlike Russia in its 2001 submission, Norway didnot abandon a single metre of the shelf within its eventual Arctic sector, havinglegally crafted a “partial” submission. Secondly, as shown by the subsequentevents, with its Art. 76 submission, Norway was pursuing a completely differentpriority – to reinforce its rights to the continental shelf of Spitsbergen, given itsdifferences on this issue with the EU states.In the materials submitted to the CLCS, Norway declares its rights to thecontinental shelf in the Arctic Ocean beyond the 1920 Treaty, primarily, in the arealabelled, for those purposes, the “Western Nansen Basin in the Arctic Ocean.”Here, Norway also officially asserts the existence in that area of “the continentalslope of Norway (including Svalbard)”, a “200-mile zone” around Spitsbergen andeven a “boundary” between that zone and “Norway’s 200-mile zone.”It should be noted that Norway’s assertion on the existence of “thecontinental shelf of Norway (including Svalbard)” as well as Norway’s “200-milezone” around Spitsbergen contradicts the positions of several other countries onthe status of the maritime areas around Spitsbergen – for example, that of Iceland.Norway’s legal casuistry, however, is prudent and thought-through: on the onehand, the “Spitsbergen factor” seems to be taken into account in Norway’sposition, so now Norway has something to put against Russia and the EU countries– the CLCS, as a sort of international body, albeit not authorized to resolve legalissues, did not question that the shelf around and north of Spitsbergen belonged tonone other than Norway.
At the same time, Norway was not stopped by the factthat the CLCS, under the UNCLOS, was equally not entitled to point out toNorway its legal inaccuracy – that the CLCS, according to the UNCLOS, does notdeal with legal issues.The CLCS was presented with a map depicting the area of continental shelffor examination and discussion. That area, as Norway asserts, is located beyond200 miles of “the continental slope of Norway (including Svalbard)”. Thus, boththe CLCS and those representatives of the state parties to the UNCLOS thatbelieved it necessary to read Norway’s submission, are taught to think that168Norway’s shelf includes the shelf of Spitsbergen.
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