диссертация (1169188), страница 40

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One state shall not make objections regarding the Commission’sexamination of the other state’s submission and issuing recommendations thereon;2. The recommendations given by the Commission regarding a submissionby one state shall not affect the rights of the other state when the Commissionexamines its respective submission;3. The said recommendations with respect to any of the two states shall notprejudice the delimitation of continental shelf between them.Each party shall rely on this agreement in its submission to the Commissionon the Limits of the Continental Shelf; and shall request that the Commission issueits recommendations subject to this agreement; as well as address the SecretaryGeneral of the United Nations with a request to make this agreement known to theUN member states as well as state parties to the UNCLOS.”203First of all, that “agreement” (as Denmark characterizes it) with Russia wasnever published by the Russian Ministry of Foreign Affairs (MFA).

Both theFederation Council and the State Duma of the Federal Assembly of the Russian203Translated from Danish by Il’ina Daria (Master of Laws). I have been unable to locate the Russian text of thisRussia-Denmark exchange of notes.177Federation learned about it from the Danish document.Secondly, within the meaning of that international agreement (in the form ofan exchange of notes), Russia undertook: а) not to make objections regarding theCommission’s examination of Denmark’s 2014 submission; b) not to makeobjections regarding the Commission’s issuance of recommendations onDenmark’s submission.

Let us emphasize: Russia undertook not to object, eventhough Denmark’s shelf, according to Denmark’s submission, deeply “intrudes”into Russia’s Arctic sector, up to its 200-mile EEZ, running far from Denmark’szone. Given that Denmark’s “most interested” neighbouring state – Russia – is notobjecting to such a submission by Denmark, as follows from the notes exchangedbetween the Russian and Danish MFAs, the CLCS may indeed adopt a positiverecommendation on it; in that case, the limits of shelf set by Denmark based on theCommission’s recommendations, shall become “final and binding” (Art. 76(8) ofthe UNCLOS); that is, to the prejudice of Russia’s national interests and toDenmark’s disproportionate benefit.Russia’s MFA, in its official commentary to Denmark’s submission, statedthat “the potential overlapping areas of shelf of our two countries in the highlatitude Arctic will be delimited bilaterally, through negotiations, based on theinternational law”, but for that, the CLCS “will first need to determine that theseabed areas claimed by Russia and Denmark, and, in the future, Canada,constitute continental shelf proper.”204 However, the Commission has no such rightunder the UNCLOS.

Moreover, “delimitation” of the continental shelf isperformed only with states with opposite or adjacent coasts, without anyinvolvement of the CLCS (Art. 83 of the UNCLOS). The Commission joins inonly when the coastal state is performing the delineation of its shelf from theInternational Seabed Area by geological and distance criteria set forth in Art. 76 ofthe 1982 UNCLOS.

Denmark’s submission notes that the “final delimitations” ofthe continental shelf north of Greenland “will, as appropriate, be determined204MinistryofForeignAffairsoftheRussianhttp://www.mid.ru/brp_4.nsf/newsline/C4533848E85A09A0C3257DB00053569C.Federation.URL:178through bilateral agreements.” We should note that the UNCLOS does not providefor such “final delimitations” after the “delineation” procedures carried out withthe CLCS’ involvement. Here, the Danish document makes a mistake similar to theone already present in the MFA’s statement on that submission. It is positive,however, that here, Denmark, in complying with UNCLOS Art. 76, proceeds fromthe priority of the international law rules on the delimitation of continental shelfbetween neighbouring states.It should be noted that Denmark has built its international legal position onthe Arctic shelf in a legally thought-through way, having aptly used the legal stepsof the Russian MNR and MFA since 1997 that do not correspond to Russia’snational interests; fixed a legally bigger area of its shelf as compared to the area ofits Arctic sector, and agreed on a set of notes with the Russian MFA, according towhich Russia would “not make objections regarding the Commission’sexamination” of Denmark’s submission, or objections regarding the Commission’s“issuing recommendations thereon.”Denmark assumes the priority of the rules of international law on thedelimitation of continental shelf between neighbouring states and clearly indicatesthe need to enter into bilateral agreements on the delimitation of Arctic shelf withCanada and Russia.That Denmark was able to obtain Russia’s “blanket” consent not only to theDanish “submission” to the CLCS, but also to the Commission’s issuance ofrecommendations thereon in the exchange of diplomatic notes is unprecedented.These diplomatic notes should undergo an expert examination at the FederalAssembly of the Russian Federation and the Security Council of the RussianFederation for consistency with Russia’s national interests.179§ 3.

Proposals for the Russian Federation to take account of thepositions of other Arctic states as well as the foreign international legaldoctrine for improving the legal policy with respect to Arctic shelfIn the context of the results of the legal research as described above Isuggest that Russia is to take account of the Arctic legal policy (its treaty andlegislative components) primarily of those Arctic states it shares state borders within the Arctic (as well as other boundaries, including between areas of continentalshelf). These are Norway (in the west) and the US (in the east).

But apart fromthese two Arctic states, it would be feasible for Russia thoroughly to consider thelegal positions and the applicable Arctic legislation of the other two Arctic states:Canada and Denmark. Above, we have discussed the recommendations for takinginto account the position of Denmark. The Canadian legal practice is of interest forRussia mainly for two reasons: 1) the length of the Arctic coastlines of Canada andRussia together is several times the total length of the Arctic coastline of the otherthree states coasting on the Arctic Ocean, that is, the US, Norway, and Denmark;2) Canada’s legal position in the Arctic is traditionally the closest to that of Russia;3) given two “applications” by Russia (filed in 2001 and 2015 in furtherance ofArt.

76 of the UNCLOS that have not resulted in a positive recommendation by theCLCS). Canada is perfecting its Arctic position, supplementing and revising itstraditional components: reliance on customary international law; historic title;support of sectoral boundaries outlined by the early Canadian laws for the purposesof environmental jurisdiction. That novelty in Canada’s legal policy meets itsnational interests: they are more efficiently protected when using the combinedrules of the 1982 UNCLOS on the limits of the continental shelf laid down in Art.76 and Art. 83; they also take into account that the US is likely to keep out of theobligations under Art.

76 of the UNCLOS; and that it is impermissible to create anarea of the “common heritage of mankind” in Canada’s Arctic sector.Initially, the U.S., following Canada’s example, officially made its claims tothe Arctic sector north of Alaska. The US Secretary of the Navy, speaking in 1924in the House of Representatives (the lower chamber of the American Congress),180noted that the US owns all uninhabited territories north of Alaska, which wassupported in the American international legal doctrine. American legal scholar, D.Miller, in an article published in 1925, demonstrated why it was practicallyexpedient and legally sound to divide the Arctic spaces by sectors between thestates opening to the Arctic Ocean, including the US In his view, the legal basis forestablishing the US Arctic sector consisted in the Russian-British Treaty of 1825and the Russian-American Treaty of 1867, which designate the sectoral boundariesin the Arctic.205 Another American lawyer, Ch.

Hyde, stressed the possibility ofapplying the sectoral principle to the Arctic. The scholar writes that in the Arcticregions, the sovereign of the adjacent territory, which goes far to the North beyondthe Polar circle, is in relatively favorable conditions in order to give a feeling ofsupremacy within the vast, but not yet occupied space. Such opportunities,according to the author, due largely to geographical circumstance, strengthenpossibilities to apply a system of sectors in areas around the North Pole.206The issue of the US making claims to the Arctic sector has once againbecome urgent when, in 1968, oil deposits were discovered in the area of thePrudhoe Bay (Alaska).

Nevertheless, subsequently the US has both officially(primarily in opposition to Canada in the exercise of the latter’s rights in the Arcticsector) and at the level of doctrine of international law demonstrated itsdisagreement with applying the sectoral principle in the Arctic. It would seem thatthe US position was affected by comparison of the opportunities for claims tonatural and economic resources of that state in the Arctic, namely, by the facts: a)of a far smaller shelf area within the sector as compared to Russia and Canada incase of applying the sectoral principle; and, b) that, in case of internationalizationof the Arctic Ocean floor beyond the 200-mile EEZs of the Arctic states, Americancompanies would get access to the resources of Arctic shelf within the areasignificantly exceeding the area of shelf in the American Arctic sector.

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