диссертация (1169188), страница 38
Текст из файла (страница 38)
It is a legally calculated move:even if some state disagrees with it, there would be no point in reacting to thematerial submitted to a technical body, the CLCS, by way of a diplomatic note. Allthe more so that Norway’s submission is drafted as an overview purely consistingof facts, rather than a legal statement. According to the submission, in the east, thecontinental slope of Norway (including Svalbard) is limited unilaterally by the“conventional” median delimitation line with Russia (at present it is clear that thatline was replaced with a delimitation line set forth by the Russian-NorwegianAgreement of 15 September 2010). In the west, the shelf area claimed by Norwayis outlined by a boundary with Denmark (the island of Greenland) as provided bythe Agreement concerning the Delimitation of the Continental Shelf and theFisheries Zones in the Area between Greenland and Svalbard of 2006.
In the south,by the outer limit of the “200-mile zone” measured from the baselines along themainland coast of Norway; in the north – by the final portion of “the continentalslope of Norway (including Svalbard)”, subject to the location of the “continentalshelf of the Russian Federation (including Franz Josef Land).”Nonetheless, as declared, Norway’s submission to the CLCS was preparedto “fulfil the obligation Norway has under article 76 and article 4 of Annex II ofthe Convention to submit information on the outer limits of its continental shelfbeyond 200 nautical miles from the baselines from which the breadth of theterritorial sea is measured, in respect of areas in the Arctic Ocean, the Barents Seaand the Norwegian Sea.”In fact, the principal aim behind that deliberate legal step was to improveNorway’s legal position as compared to the one it had under the Paris Treaty onSpitsbergen of 1920.
Using throughout the materials of its submission(“application”) the key term “the continental slope of Norway (includingSvalbard)”, Norway diverted attention from the questionable nature of its rights tothe continental shelf within the area falling under the 1920 Spitsbergen Treaty. Adifferent approach begs a logical question: if Norway has no rights under the 1920Treaty to the shelf within the area falling under the Treaty, how can it claim even169more remote shelf – north of that area? It is therefore unsurprising that thesummary of the submission the Norwegian party filed for the information ofinterested states, makes no mention of the 1920 Treaty whatsoever.It seems that, the Western legal studies comment on the Spitsbergen factor inthe Norwegian submission rather incomprehensively:“One of the issues in relation to the Norwegian submission is the status ofthe Svalbard Archipelago.
Norway has sovereignty over the archipelago. This hasbeen recognized through the Spitsbergen Treaty. Apart from recognizing thesovereignty of Norway over the archipelago, the Treaty accords equal rights to thenationals of the other Parties in respect of particular economic activities. Theseprovisions of the Treaty are applicable to the territory of Svalbard, including theterritorial waters (Article 3). Subsequently, the question has arisen if the Treaty hasany implications for the maritime zones beyond the territorial sea, such as thecontinental shelf. Norway has taken the position that the Treaty is not applicable tothe continental shelf and fishery zone of Svalbard, but this view is not generallyaccepted.
Other states in general do seem to accept that the Treaty does not imposeany restrictions on Norway as far as the determination of the extent of maritimezones is concerned. In the executive summary of its submission Norway did notinclude any reference to the Spitsbergen Treaty. This implied that Norway took theview that the implementation of article 76 did not raise any questions in respect ofthe Treaty.”190Thus, Norway’s submission to the Commission was intended, first of all, topresent as legitimate the claims of that state: 1) to the relatively small area ofcontinental shelf around Western Nansen Basin, and 2) to the 200-mile continentalshelf area around Spitsbergen (the “the continental slope of Norway (includingSvalbard)”). To do it by persuading state parties to the 1920 Treaty would bepractically impossible, since that would raise the need to revise the interpretationof the provisions of that Treaty on the “Spitsbergen territorial waters”; meticulous190Ibid.170proof of Norway’s rights to the territorial sea around Spitsbergen based on theacquiescence of the majority of state parties to the Treaty, etc.In light of the above legal situation of the basins of Spitsbergen, it was farmore promising for Norway to address specifically the Commission on the Limitsof the Continental Shelf, that is, a technical body, which, nonetheless, was createdunder a universal treaty – the UN Convention on the Law of the Sea of 1982.
Thattechnical body, by its functions, was perfect implicitly to confirm Norway’sclaims, since it deals with considering the data and other material submitted bycoastal States concerning the outer limits of the continental shelf in areas wherethose limits extend beyond 200 nautical miles, and making recommendations,using the terms provided in Art. 3 of Annex II to the UNCLOS.Norway apparently initially expected that if it elected approaching theCLCS, for various reasons the parties to the 1920 Treaty (that are also parties tothe UNCLOS) would not object to Norway complying with its obligations underthe UNCLOS, even if Norway introduced a favourable legal fiction for that – thenotion of “the continental slope of Norway (including Svalbard).” Thereby theCommission – whose mandate does not allow it to analyse the 1920 Treaty –seemingly approved the outer limits of Norway’s continental shelf north of itsmainland coast, including also the shelf in the area falling under the 1920 Treaty.Moreover, with the majority of state parties to the 1920 Treaty acquiescing,Norway would be able to rely on an estoppel – thereby adding another ground toits claims to the maritime basins within the scope of the 1920 Treaty.The international legal construct of Norway worked brilliantly, and all ofNorway’s expectations came true.Only four diplomatic notes were sent in response to Norway’s submission –by Russia, Spain, Iceland, and Denmark, and only two of them – those by Russiaand Spain – specifically noted those states’ rights under the Spitsbergen Treaty.Thus, Spain stated, that “Spain wishes to reiterate that… principles of liberty ofaccess and non-discrimination are applicable to any maritime zone that might bedefined from Svalbard, including, as appropriate, the continental shelf, both within171and beyond a distance of 200 nautical miles from the baselines from which thebreath of the territorial sea is measured.” And further: “Inasmuch as the continentalshelf extension submitted by Norway is intended to be effected from Svalbardtowards the north – in the Western Nansen Basin region – and towards the east – inthe region called the Loop Hole – Spain considers that the Paris Treaty fullyapplies to those regions and reserves its rights to the resources of the continentalshelf that may be defined around Svalbard, including the extension thereof.”191Russia’s diplomatic note by its legal contents is considerably more modest:it notes that “the Commission’s recommendations with respect to the submissionmade by Norway should not prejudice the provisions of the 1920 SpitsbergenTreaty, and, consequently, the regime of the maritime areas adjacent toSpitsbergen.”192Other state parties to the 1920 Treaty and the UNCLOS that could have hadan interest in preventing such an expansion of Norway’s rights to the shelf withinthe scope of the 1920 Treaty either entirely abstained from voicing an officialposition via the UN Secretary-General, or voiced it but without expressly referringto Spitsbergen.
Thus, for instance, the note by Denmark stated that “the submissionmade by Norway and actions of the Commission shall not prejudice mattersrelating to delimitation of boundaries between States with opposite or adjacentcoasts.”193That is, by its submission to the CLCS, Norway strengthened itsinternational legal position on the shelf adjacent to Spitsbergen: Norway receivedno negative responses from the majority of state parties to the 1920 Paris Treaty(except for the clearly put positions of Russia and Spain).
Norway’s claims to thecontinental shelf also within the scope of the Spitsbergen Treaty, north of it, havebecome more legitimate after the Commission supported Norway. Given thatNorway’s position with respect to enlarging its rights under the 1920 Treaty is not191Note verbale. Madrid, 2nd March 2007, Ministerio de Asuntos exteriors y de Cooperation.192Permanent Mission of the Russian Federation to the United Nations.
No. 82. New York, February 21, 2007.193Permanent Mission of Denmark to the United Nations. Ref. № 119. No. 8. New York, 24. January 2007.172consistently challenged by the majority of its participants, foreign analysts projectthat with time, understanding of the regime of continental shelf within the scope ofthe Spitsbergen Treaty could become predominant: for the majority of states, it ismore important to keep Spitsbergen demilitarized and neutral, and Norway isminutely abiding by that component of the 1920 Paris Treaty.
194 Thus, theacquiescence of the majority of states of Norway’s Art. 76 submission thatimplicitly reinforces its rights as compared to the Spitsbergen Treaty, has becomethe vital stage of confirming Norway’s jurisdiction over the continental shelf northof Spitsbergen.The Kingdom of Denmark, in accordance with Royal Decree No. 259 of 7June 1963, announced its sovereign rights to the seabed and subsoil of thesubmarine areas adjacent to the coast but outside the area of the territorial sea, to adepth of 200 metres or, beyond that limit, to where the depth of the superjacentwaters admits of the exploitation of the natural resources of the said areas (hereDenmark used the wording of Art.
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