диссертация (1169188), страница 41
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The US205Miller D.H. Political Rights in the Arctic. Foreign Affairs, 1925, V. 4, No 1, P 54 et seq.206Hyde Ch. International Law as it is interpreted and applied by the United States of America (Mezhdunarodnoyepravo, ego ponimaniye i primeneniye Soedinenimi Shtatami Ameriki). Moscow. Inostrannaya literature, 1951,P.336 (tr. from English).181documents here reiterate the data on the enormous potential for exploiting themineral resources of the Arctic: “These resources include an estimated 13 percentof the world’s undiscovered oil, 30 percent of undiscovered gas, and some onetrillion dollars worth of minerals including gold, zink, palladium, nickel, platinum,lead, rare-earth minerals, and gem-quality diamonds.”207Despite all of the above, I conclude basing on the results of the researchpresented above that: 1) from the legal standpoint, the US Arctic sector and the USshelf boundaries are, in the east of Alaska, outlined by the 1825 Russian-BritishTreaty and the legislation of Canada; to the west of Alaska, by the 1867 RussianAmerican Treaty and the 1990 Soviet-American Agreement; 2) at present, the USdoes not face a single objection to its legal claims to the Arctic sector north ofAlaska (beyond the 200-mile limit), and that fact is of great legal relevance; 3) notbeing party to the UNCLOS, the US is not obliged to restrict its rights to thecontinental shelf and its natural resources north of Alaska by the limits set forth inthe UNCLOS: 200 miles; 350 nautical miles; or other.
Being party to the 1958Convention on the Continental Shelf, the US is entitled to exercise sovereign rightsover such shelf for the purposes of exploration and exploitation of its naturalwealth much further – “to where the depth of the superjacent waters admits of theexploitation of the natural resources of the said areas” (Art.
1), that is, potentially,up to the North Pole; 4) for the US, it is very advantageous that other Arctic stateswould strictly observe the UNCLOS, including its limitations of the continentalshelf under Art. 76; encouraging their commitment to that conventional obligation,the US is thus, on the one hand, promoting expanding the area of the Arctic Oceanfloor left to the respective Arctic states formally for the “common heritage ofmankind”, but in reality – as an area not constituting the state’s continental shelf,and, consequently, free for the exploitation of natural resources by Americancompanies; 5) the United States encouraging commitment of the other four Arcticcoasted States to art. 76 of the UNCLOS, on the one hand, contribute to the207United States Coast Guard. Arctic Strategy. May 2013.
Washington, D.C. P. 7 (48 pp.). See also about similarestimations in: Security Challenges and Stewardship Opportunities. Environmental Security in the Arctic Ocean.Eds. P.Berkman and A. Vylegzhanin N. Spriger, 2013, P. 32.182increase in the area of the floor of the Arctic ocean, left by a relevant Arctic stateformally for the “common heritage of mankind”, but in practical terms – as a seabed Arctic area, which is free for natural resource activities of US companies; 6) inits Arctic policy the US is also indirectly trying to delay the process of the finaldetermination of boundaries of the Arctic continental shelf, since certainty as tosuch boundaries leaves less space for manoeuvres for American policy andbusinesses in the Arctic region in the future.Within such US legal approach it seems that the exploitation of naturalresources in the Arctic Ocean is governed, first and foremost, by U.S.
maritimelaws, starting from the Outer Continental Shelf Lands Act and the statutes on theterritorial sea.The Outer Continental Shelf Lands Act (hereinafter, the Shelf Act) wasadopted in the US on 7 August 1953.208 Amendments to the Act were introduced ata rather quick pace as the practice of regulating activities on the shelf accumulated:in 1975, 1978, 1984, 1986, 1987, 1990, 1992, 1994, and 1995. The Shelf Actcontains a definition of “outer continental shelf”, an indication that the shelf flooris under US jurisdiction and control.209 At the same time, the Shelf Act should beinterpreted in conjunction with the 1953 Submerged Lands Act.
There aresuggestions for the Russian legislator to borrow some of the mechanisms providedby those acts.The Shelf Act authorizes the Secretary of the Interior to adopt regulatoryacts to prevent irrational use, as well as to preserve the natural resources of theshelf. The Outer Continental Shelf Lands Act Amendments of 1978 provide for thepossibility of the Department’s termination of contracts for the lease of continentalshelf plots and revocation of permits to exploit them in cases where the continuedoperations may cause significant harm to the life including marine flora and fauna.The 1978 Amendments also mandate taking account of the economic, social and20843 U.S.C. §§ 1331-1356, August 7, 1953.209The term “outer Continental Shelf” means all submerged lands lying seaward and outside of the area of landsbeneath navigable waters as defined in the Submerged Lands Act (43 section 1301), and of which the subsoil andseabed appertain to the United States and are subject to its jurisdiction and control – 43 USC Sec.
1331.183environmental aspects when using continental shelf. Management of theexploitation area is carried out by using lessee plans for researching mineralresources, including exploration plans and development and production plans.The legal policy of the US is based on the status of natural resources of thecontinental shelf as falling within federal competence (unlike the territorial seabedthat falls within the competence of the respective US state).
The Shelf Act providesfor federal competence over the US shelf, including federal control over theexploitation of the natural resources of the shelf, and other federal powers,including a monopoly (without the state’s involvement) of using the naturalresources of the shelf. The Act defines the continental shelf as a vital nationalnatural treasure, and provides that exploiting deposits should meet the highstandards of environmental protection, subject to the principle of competitionamong bidders.Given that exploration, exploitation and extraction of mineral resources ofthe shelf may materially affect the coastal states of the US, Congress announcedthat such states and their governments may have a need to assist in the protectionof the coastal areas.
Allocation of a portion of income from leasing out shelf plotsbetween states would allow the local authorities the funds that may be directedtowards mitigating the negative impact on the environment. The main principle ofoperations on the continental shelf is prevention or mitigation of any risks (loss ofcontrol, fire, waste escape, any accidents that may cause harm to the environment,property, and human life and health). The Shelf Act may be construed to read thatthe waters over the outer shelf qualify as the high seas for navigation purposes, andnavigation rights there are thus unaffected (Section 1332(2)).Federal jurisdiction covers the “outer” continental shelf, all artificial islandsand other installations within the US shelf, permanently fixed to the seabed.210 TheShelf Act allows – insofar as it is not inconsistent with federal laws – each coastal210For a review of the foreign and Russian doctrine on the status of artificial islands and other installations, see:Soons A.
1974. Artificial islands and Installations in International Law. Occasional Paper №22. Law of the SeaInstitute: University of Rhode Island. 43 pp.; Vylegzhanin A., Krimskaya K. Legal Regime of Artificial Islands andother permanent structures at Sea. Moscow Journal of International Law. No. 2. 2018, P. 44-57.184state’s legislation to extend to the shelf space that, “if a State’s boundaries wereextended seaward to the outer margin of the outer Continental Shelf”, would bewithin its borders.
However, the American legislator stresses that the articlewording can under no circumstances be interpreted as a basis for claiming interestin or jurisdiction on behalf of the state for any purpose over the seabed and subsoilof the OCS.211The US Secretary of the Interior may lease out plots of shelf for the purposesof extracting oil and gas to the “most responsible and qualified” candidates after abidding process. The Shelf Act contains detailed prescriptions on the procedure ofarranging the bidding for executing lease agreements, the duration and terms ofsuch agreements, as well as the prohibition of monopolies.
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