диссертация (1169188), страница 42

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According to theamendments introduced to the Shelf Act in 1994, the Secretary of the Interior mayagree with the lessees on the use of materials obtained in the course of exploitingthe shelf (e.g., sand, gravel, shells) for measures taken to protect the coastline,amelioration of swamp lands, etc. The Act reserves the key rights, arising in viewof the exploitation of the natural resources of shelf, with the President and otherfederal institutions in cases of emergencies, interests of national security, war.

It isseparately noted that the rights to such substances as helium, uranium, thorium andothers (capable of nuclear fission), are reserved for the federal government.212 Theamendments introduced in the Act in 1978 instruct the Secretary of the Interior toprepare, revise from time to time and implement, on behalf of the state, a plan ofmeasures for the lease of oil and gas for the purposes of performing the Act.

TheSecretary is required to submit the proposed action plan to Congress, the AttorneyGeneral and the governors of the states involved for commentaries, as well aspublish it in the Federal Register. The same procedure is completed annually afterapproving changes in the “plan”, or more frequently if necessary.213 In practice,leasing out shelf is carried out under legal and administrative control.21143 USC – Sec. 1333.212See 43 USC Sec.

1341.213See 43 USC Sec. 1344, 1345.185The Shelf Act contains detailed explanations on the protection of theenvironment and research. The Secretary of the Interior publishes and files withthe U.S. Congress every three years a report on the impact of the operations carriedout under the Shelf Act, on the people and marine environment.214 Enforcement ofthe legislation is entrusted to the Secretary of the Interior, the Coast Guard and theSecretary of the Army (the duties of lease and permit holders to maintain safefacilities and operations, allow onsite inspections and access to records, and directsthe Secretary, the Secretary of the department in which the Coast Guard isoperating, and the Secretary of the Army to enforce safety and environmentalregulations adopted pursuant to the Act).215 Section 1350 provides for liability forviolations of the shelf legislation.

It provides for the possibility of initiating a civilaction to obtain an injunction on activities until the breach of the Act is remedied.Breaches of the Act, subordinate acts or the terms of a lease, license or permit mayentail civil law liability (up to $20,000 per day). International and wilful violationof the shelf laws (including in case of presenting false information and disclosureof confidential information) might entail criminal responsibility (a fine up to$100,000 and/or a prison sentence of up to ten years).As to the procedure for using natural resources of the floor of the territorialsea north of Alaska, the 12-mile territorial sea of the US is established inaccordance with the Proclamations of the US President on the Territorial Sea dated27 December 1988,216 with a reference to the UNCLOS.

The Act provides that theterritorial sea is a maritime space adjacent to the coast or the US internal maritimewaters. This maritime space, the air space above it, as well as its bed and subsoilare under the sovereignty of the United States of America.Pursuant to the US 1978 Amendments to the Ports and Waterways SafetyAct, the competent authorities of that country may “deny entry into the navigablewaters of the United States … to any vessel not in compliance with the provisions214Sec. 1346.215§§ 1347-1348.216Proclamation on the Territorial Sea of the United States of America by the President, 27 December 1989.

Law ofthe Sea Bulletin №12 (Division for Ocean Affairs and the law of the Sea, Office of Legal Affairs, UN). P.18.186of this Act or the regulations issued hereunder” (Sec. 13, “е”). This provision isnot in line with the provisions of the UNCLOS, according to which the laws andregulations of the coastal state on innocent passage “shall not apply to the design,construction, manning or equipment of foreign ships unless they are giving effectto generally accepted international rules or standards” (Art. 21(2)).The US EEZ extends, according to the 1982 US President Proclamation, for200 nautical miles from the baselines used to measure the US territorial sea.217 Inthe EEZ, the US has proclaimed “to the extent permitted by international law, (a)sovereign rights for the purpose of exploring, exploiting, conserving and managingnatural resources, both living and non-living, of the seabed and subsoil and thesuperjacent waters and with regard to other activities for the economic exploitationand exploration of the zone, such as the production of energy from the water,currents and winds; and (b) jurisdiction with regard to the establishment and use ofartificial islands, and installations and structures having economic purposes, andthe protection and preservation of the marine environment.” As one can see fromthe above, the U.S.

here practically entirely reproduced the wording of Art. 56 ofthe UNCLOS. At the same time, the President’s Statement on Ocean Policy whichaccompanied the 1983 Proclamation noted that the US does not reserve the right toexercise jurisdiction with respect to marine scientific research within its EEZ,“because of the United States interest in encouraging marine scientific researchand avoiding any unnecessary burdens.” Nevertheless, it will, as referred to in thestatement, recognize other coastal states’ rights to establish such jurisdiction, “ifthat jurisdiction is exercised reasonably in a manner consistent with internationallaw.”The US Oil Terminal and Tanker Environmental Oversight and MonitoringAct of 1990 applies to maritime areas defined there as the navigable waters of the217Sbornik regional’nykh soglashenii i zakonodatel’nykh aktov zarubezhnykh stran po voprosam moreplavaniya[Collection of Regional Agreements and Legislative Acts of Foreign States on Issues of Navigation].

Vol. IV, 1984,P. 263.187United States, including the territorial sea.218 That wording, just as the entirecontext of the Act, is not fully clear, since it prompts the question as to how farinto the sea the navigable waters of the United States extend, together with therelated limit of U.S. national jurisdiction. Furthermore, according to the provisionsof the Act, any vessels using the waters of the US EEZ have to have the respectivecertificate of financial responsibility for pollution. Any vessel lacking such acertificate may be prohibited entry into US waters, detained in any place, as well asconfiscated.

Interestingly, US doctrine does not view the provision as contradictingfreedom of navigation in the EEZ formulated in the UNCLOS. The same holdstrue for the doctrinal opinion of the Act provisions to the effect that thequalifications of the crew and standards for vessels should meet American laws orthe same international standards adopted in the US Failure to meet this requirementis a statutory impediment for entering “US waters” including those overlying theUS continental shelf in the Arctic.Hence, US legislative practice shows that even without being party to theUNCLOS, the US has international legal grounds to protect its national interests inthe American shelf beyond 200 nm from the baselines.Conversely, no such grounds are available for Russia that has, by the 1997Resolution, placed its analogous national interests at the discretion of the technicalCommission created under the UNCLOS.

We may recall that the CLCS has so farnot issued a positive recommendation on Russia’s submission, be it the one filed in2001, or in 2015.An additional complication was created by the Russian agencies through theinconsistency of their position: thus, in 2001, according to the submission, Russiawaived, as already noted, its claims to the area of around 330 thousand sq.km in itsArctic sector, while in 2015 it abandoned a somewhat smaller area, havingsubmitted additional material and information relating to its continental shelf.218Oil Terminal and Oil Tanker Environmental Oversight and Monitoring Act (Monitoring Act), August 18, 1990.See also Federal Water Pollution Control Act (FWPCA), June 30, 1948, as amended on June 20, 1961, October 18,1972 and October 19, 1999; Alaska National Interest Lands Conservation Act, December 2, 1980.188Concerning the right of the coastal state to change its legal position initiallysubmitted to the CLCS, there is a Legal opinion of the Under-Secretary-General ofthe UN for Legal Affairs dated 25 August 2005.The document bears a rather long title: “Legal opinion on whether it ispermissible, under United Nations Convention on the Law of the Sea and rules ofprocedure of the Commission, for a coastal State, which has made a submission tothe Commission in accordance with article 76 of the Convention, to provide to theCommission in the course of the examination by it of the submission, additionalmaterial and information relating to the limits of its continental shelf or substantialpart thereof, which constitute a significant departure from the original limits andformulae lines that were given due publicity by the Secretary-General of theUnited Nations in accordance with rule 50 of the rules of procedure of theCommission.”219The Legal Opinion notes, first of all, that the additional data a coastal statesubmits to the Commission, should not amount to a revision of the originalsubmission of that coastal State:“It may be assumed that since additional data is presented by a coastal Statein support of the particulars of the limits of the continental shelf submitted by it tothe Commission, it should not contradict them.

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