диссертация (1169188), страница 45
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121 of the UNCLOS) those drifting ice formations do not juridicallyconstitute islands. That, however, does not mean that the specification proffered bythe Canadians has no prospects.The combination of legal “precision” with inventiveness in substantiatingCanada’s title to the claimed Arctic sector discussed above pre-empts reasonablediplomatic protests.
It is well-known that the concept of acquiescence presupposesthe state’s tacit consent to a certain established situation as compliant withinternational law, and that concept is widely applicable in the resolution ofterritorial disputes. In support of their rights to a certain territory, states often225Neft’, Gaz i Pravo [Oil, Gas, and Law], No. 1, 2006. С.41.226International Law Chiefly as Interpreted and Applied in Canada. Ed. H.M. Kindred. Sixth Ed. Toronto, 2000, P.424-425.197invoke the absence of protests from another respective state:227 by abstaining froma direct declaration of sovereignty, “in many cases silence on the territorial actionsof a foreign state creates a presumption of acquiescence, and the longer it lasts themore that presumption evolves into real recognition. Defining the timing ofacquiescence is a very material issue in a territorial dispute since it creates anestoppel and thereby deprives subsequent protests of one of the parties of theirlegal effect, that is, of the party that acted too late.
… On the whole, acquiescenceoccurs when a long-standing and unopposed practice leads to a belief that thesituation in question accords to the international law.”228Since acquiescence presupposes the consent of the affected state to theestablished order and the state of relations between the two countries involved,including on the specific area, the natural condition of such a consent is the state’sawareness of its rights being actually affected. The need for such knowledgesuggests, in turn, that the actions of the state making the claims should not takeplace “secretly”, that is, should be publicized to an extent. To be definitely known,such actions should either be sufficiently noticeable, including through factualmanifestations, respective legal documents reflected in official publications; forinstance, in the published laws, geographical publications, etc.
Above, I havealready observed that the limits of the Canadian Arctic sector appear on all officialmaps. Moreover, the limits of the sector are also placed on world maps issued bythe UN, including in 1987.229 The tacit acceptance of such maps is yet anothersuccess of Canada’s legal Arctic policy.In 2001, Canada adopted the Marine Liability Act. Together with the 1970Act, it creates areas of state control of navigational safety (to date, over 15 suchareas have been created). Depending on the area, specific requirements are set,such as, for instance, certain safety standards, technical specifications as to the227Klimenko B.M. Mirnoe reshenie territorial'nykh sporov (Peaceful Settlement of the Territorial Disputes).Мoscow, 1982.
P. 166-177. ( in Russian)228Op. cit., P.168.229The International Map of the World (IMW) series according to United Nations specifications. – GeomaticsCanada, Natural Resources Canada; United States Geological Survey (USGS). See, the website of Canada’sGovernment at http//atlas.gc.ca/site/English/maps.198construction features of the vessels sent to Canada’s Arctic sector, requirementsregarding the qualifications of the crew, navigational equipment, vessel pilotingand icebreaker assistance (Art. 11–12).
The Act provides for the possibility ofmaking an exception for foreign vessels if they “meet standards substantiallyequivalent.” That clause is necessary for Canada’s Government not only to protectthe ecosystem of the Arctic, but also to ensure the consistency of its internationallegal position. Thus, even in case of an “unauthorized” entry into Canada’s Arcticsector of an American tanker, Canada’s stance on the exclusive domesticregulation of navigation along the Northwest Passage in such a legal environmentis not “undermined”. In that case, Canada may issue a permit for passage postfactum, relying on the general satisfaction of the domestic requirements by virtueof the American tanker’s conformity to US standards, which are “substantiallyequivalent”. But the domestic legislative regulation remains.In 1972, the following regulations were adopted in furtherance of the ArcticWaters Pollution Prevention Act: Arctic Waters Pollution Prevention Regulations;Arctic Shipping Safety and Pollution Prevention Regulations; Shipping SafetyControl Zones Order.
These legal acts are aimed at ensuring compliance of thevessels sailing in Arctic waters with the pollution prevention requirements.In July 1977, Canada instituted a system of regulating the movement ofvessels in Arctic waters – NORDREG 1977.230 The objectives of NORDREGmonitoring are: first of all, to improve security and efficiency of navigation in thearctic waters by coordinated efforts of the Canadian coast guards and marinetransportation agencies; secondly, to prevent pollution of the arctic waters bymonitoring vessels in order to ensure their compliance with the regulations; setforth by the Arctic Waters Pollution Prevention Act and the Canadian Marine Act;thirdly, for strengthening the sovereignty of Canada over arctic waters. On the onehand, participation in fulfilling the rules of NORDREG is voluntary.
On the other,mariners are encouraged to observe the rules by stressing their strategic rationale.230Vessel Traffic Services, Centre Manual, Arctic Canada Traffic System (NORDREG), Element T-2, June 1994.TP 1526, as well as Ship Safety Bulletins, No. 05/1997.199The rules are explicated “Notices to Mariners”.
A trend is emerging for theincreasing role of NORDREG in ensuring compliance with Canada’s Arcticlegislation.All these legislative acts further reinforce the grounds underlying Canada’srights to the shelf within its Arctic sector or other larger limits that will bedesignated by Canada under Art. 76 of the UNCLOS.Canada’s Government repeatedly stressed that Canada’s extension of itsdomestic legislative regulation in the regions of its Arctic sector is due not only toits national interests, but the interests of the entire mankind, which will objectivelybenefit strategically from the preservation of the Arctic ecosystem andenvironment. In his day, the Canadian Prime Minister P. Trudeau made thefollowing statement: “...where no law exists, or where law is clearly insufficient,there is no international common law applying to the Arctic seas; we’re sayingsomebody has to preserve this area for mankind until international lawdevelops.”231 Canada’s legislation on the Arctic sector is objectively preventing thecollapse of the Arctic ecosystem and by and large corresponds to the present-dayinternational law.Canada’s legal Arctic policy does not have an unambiguous answer to thequestion of the current legal regime of the Canadian Arctic sector; it is evolving.Canada has confirmed the formation since 1904 of a wide international consent toits sovereignty over the “land and islands” within Canada’s Arctic sector; Canadais actually regulating navigation along the Northwest Passage; a consensus isforming at the level of international legal understanding among the majority ofworld states (essentially all except the US) with Canada’s exercise of suchregulation.Any analysis of the Canadian legislation should take into account thatCanada’s position corresponds to Russia’s Arctic interests.
In this view, thescholarship has already noted the desirability of greater care on the part of Russia’spower institutions in matters related to the scope of claims to natural resources of231Press conference of Prime Minister Trudeau. April 8, 1970 // 9 INT. LEGAL MATERIALS 601 (1970).200the Arctic states in the Arctic. For instance, Federal Law No. 42-FZ dated 26February 1997 on the Ratification of the Agreement between the Government ofthe Russian Federation and the Government of Canada for the Avoidance ofDouble Taxation contains Russia’s “reservation”: “the Russian Federation declaresthat the Agreement… shall not affect the definition of the coastal state’scompetence within the maritime areas adjacent to its territorial sea that is regulatedin accordance with the United Nations Convention on the Law of the Sea.”232 Thatreservation serves the interests of the US, reflecting the American preference forinternationalizing the Arctic, rather than the historic rights of Russia and Canada inthe Arctic.
Here, contrary to the position of Canada, Russia advocates the artificialexpansion of the restrictive jurisdiction of the coastal state provided in theUNCLOS, in the general existing legal regime of the Arctic. In view of Russia’snational interests in the Arctic, the best decision would be, on the contrary, not tomake a reservation with the Agreement with Canada, but to adhere to Canada’sposition and work out a unified legal platform based on bilateral agreements.It follows from the foregoing that Canada, after Russia’s 2001 “application”(that undermined the previously available model of sectoral division of the Arcticshelf) and given that the geological and distance factors in the high-latitude areasare favourable for Canada, has fundamentally revised the legal platform forpromoting its rights to the Arctic shelf.
More specifically, Canada is combininggeneral international law rules on the delimitation of shelf between states withopposite and adjacent coasts and the provisions of Art. 76 of the UNCLOS (on theboundary between the continental shelf and the “common heritage of mankind”).Thereby Canada: а) unlike Russia, is not abandoning a part of its shelf in its Arcticsector; and b) achieves its maximum accretion.It is proposed, therefore, that:1.It is feasible for Russia and Canada as neighbouring Arctic states tobilaterally agree on a certain “preliminary line” delimiting high-latitude areas oftheir Arctic continental shelf. This would be, in the specific circumstances of the232Russian Federation Code dated 3 March 1997, No. 9, Art.
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