диссертация (1169188), страница 43
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In other words, it is expected thatthe additional material and information should not amount to a revision of theoriginal submission.”220Notably, the text of Art. 76 of the UNCLOS does not mention such terms as“original submission” or “additional material” at all.Despite that, the Legal Opinion states:“It appears, however, that there is nothing in the Convention in the course ofits examination of the submission of that State that further analysis of the scientificand technical data originally presented to the Commission in support of particularsof the limits of its continental shelf or substantial part thereof has brought this State219Commission on the Limits of the Continental Shelf.
Distr.: General. 7 September 2005. P. 1.220Ibid., P. 6.189to a conclusion that some of these particulars were not correct and therefore theouter limits of the continental shelf need to be adjusted.“Likewise, it appears that there is nothing in the Convention that prevents acoastal State from submitting to the Commission, in the course of the examinationby the Commission of its original information, new particulars of the limits of itscontinental shelf or substantial part thereof if in the view of the coastal Stateconcerned it is justified by additional scientific and technical data obtained byit.”221Here, it is correctly noted that:“The travaux preparatoires of the Convention (Official Records of the ThirdUnited Nations Conference on the Law of the Sea, Vols.
I-XVII) show thatdelegations did not discuss the modalities through which a coastal State wouldprovide the Commission with the particulars of the limits of its continental shelfand the supporting scientific and technical data. Consequently, the fact that theConvention does not expressly permit the coastal State to submit new particularsduring the course of the examination of the original submission by the Conventioncannot be interpreted to imply that State cannot do so.”222By way of scholarly criticism of the document, one can note that theconclusions of the Under-Secretary-General of the UN here could be supplementedby a reference to Art.
76(8): only those limits of the shelf, which are established bya coastal State on the basis of the recommendations of the Commission, “shall befinal and binding.” No Commission recommendations – no binding lines.Consequently, the lines initially binding for the coastal state could be changed by itsubsequently – but prior to the issuance of the Commission recommendation.In legal terms, it was correctly observed that the UNCLOS does notauthorize the CLCS to adopt the Rules of Procedure (unlike the InternationalSeabed Authority; plus the UNCLOS expressis verbis authorizes the Assembly todo that under Art.
159(4)):221Ibid.222Ibid.190“Unlike the case of the International Seabed Authority (see article 149, para.4), the Convention does not contain any article providing the Commission with thepower to adopt its own rules and procedure. The Commission, therefore, can do soonly by exercising a power which is conferred upon it by necessary implication asbeing essential to the performance of its duties.”223Another drawback for the Russian submission – that is, the first submissionamong all states – is noted in the Legal Opinion thus:“It should be observed that the analysis of State practice which hasdeveloped following the circulation of the executive summary of the firstsubmission shows that sometimes other States find it necessary to providecomments on particular aspects of the executive summary by sending notesverbales to the Secretary-General with a request that those comments be brought tothe attention of the Commission and be circulated to all States Members of theUnited Nations.
The Commission may wish to consider whether this emergingpractice should be taken into account and a time frame be established giving Statesan opportunity to provide comments on the addendum to the executive summerycontaining the new particulars of the limits of the continental shelf or substantialpart thereof of the coastal State concerned.”Tellingly, the UN Under-Secretary-General has not posed the question ofwhether such practice is in line with the 1982 UNCLOS.It follows that the states, not being party to the UNCLOS and not performingconventional obligations, nonetheless participate on equal terms in examining thesubmissions of state parties.
The Legal Opinion does not discuss that issue at all.On the contrary, the Commission is advised to consider the practice already“developed”.Based on the results of the above analysis of the position of the US on theArctic shelf, it is proposed to:1.Assume that it is in Russia’s interest to prioritize negotiating a223Ibid. P. 7. Here, the English text of the Legal Opinion contains a technical mistake. It should in fact refer to Art.159 rather than Art.
149 of UNCLOS.191preliminary line with the U.S. delimiting high-latitude areas of the continental shelfof the two neighbouring states (north of the point indicated in the Soviet-AmericanAgreement of 1990), before the US agrees on a similar preliminary line withCanada delimiting the continental shelf of the U.S.
and Canada in the Arctic.2.Assume the feasibility of reaching an informal modus vivendi with theUS to the effect that before Russia and the US agree on a preliminary delimitationline referred to in para. 1 above, the competent authorities of the two states wouldnot issue any licenses or permits for research, exploration and exploitation ofmineral resources in the high-latitude shelf where that delimitation line may bedrawn.3.Aim at elaborating an Annex to the 1990 Soviet-American Agreementby analogy with the Annex to the 2010 Russian-Norwegian Treaty (ontransnational natural resources, both fisheries and hydrocarbons).The Russian Federation is advised to take into account the followinginternational legal policy considerations for regulating activities in the Arcticcontinental shelf:1.
To take into account that the strongest aspect of the US legal policy onthis matter is the sound interconnection, inter-relatedness and inter-dependence ofthe international legal policy and national interests of the US in the Arctic. Suchinter-dependence is confirmed by the thoroughly elaborated domestic law of the US. Forinstance, the developed policy of moratoriums has been reflected in the annual statutoryrestrictions in managing budget funds, and elaborated in the US President Orders dated26 June 1990 and 12 June 1998. Any further changes of the energy policy in favour ofselective waivers of moratoriums (due to the objective need to replenish the US oil andgas reserves), as well as the possibility of ensuring the protection of the marineenvironment through means other than moratoriums (for instance, using renewableenergy sources) has also affected the applicable legislation of the US (for instance, theExecutive Order of the US President dated 14 July 2008 described above).
Developmentof the legislative regulation in that field allows the legislator, the US, smartly to influencethe adjustment of the direction in evolution of the energy policy, including in the Arctic.192For instance, the existence of moratoriums on exploiting mineral resources in thecontinental shelf north of Alaska, founding more marine preserves, has focused the U.S.President’s policy on preventing and controlling pollution of the marine environment (asa result of operations for the development of oil and gas) in vast maritime areas.
Thatlegal practice of the US has practical relevance for Russia, too: at present, the connectionbetween the energy policy of any state and the applicable law is so close, the internationallegal environment so manifold and at times very strict, that it is more economicallybeneficial for the coastal state not only formally to bring its domestic law to correspondto the applicable international law rules, but also to build its long-term legal policy insuch a way, so as to rule out the very possibility of “stupid”, prospectless rules appearingin its legislation purely under pressure from the oil companies’ lobbyist efforts, especiallythose contrary to international environmental law.2. It is recommended to take account of the legislative approach of the US, interms of selective compliance, with the applicable international law rules in the Arcticregion.
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