диссертация (1169188), страница 46
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1025.201Arctic, a careful interpretation and observance of the UNCLOS “against thebackground of customary international law” (the term of the ICJ), suggestingrespect for the centuries-long practice of Arctic states on the application of theirdomestic laws in the ice-bound, super-glacial, subglacial and water areas of theArctic Ocean contiguous to their coastline. That could as well be the equidistantline.
With such a treaty, performance of Art. 76 of the UNCLOS will not result in aterritorial loss by Russia of its shelf, as it happened under the 2001 “application”.2.When updating the boundaries of Russia’s continental shelf in theArctic, it will need to take account of the already aligned positions of its two Arcticneighbours, namely, Canada and Denmark. Canada and Denmark employ acombination of various natural and distance-related criteria provided by Art.
76 ofthe UNCLOS, that allow them to set the maximum width of their continental shelf.Their sovereign rights to the Arctic Ocean floor may be expanded beyond thelimits of the North Pole, that is, they might “collide” with those of Russia.It would be reasonable for Russia not to copy, when drafting its second Art.76 “application”, the approach of Canada and Denmark (in that case the claims ofthese three Arctic states to continental shelf beyond 200 nm would “overlap”,creating a threat of a legal dispute), but rather prevent a collision, primarily by wayof bilateral agreements on “preliminary” delimitation lines.Based on the study conducted, I have formulated the following summarypropositions on the development of the international law forming the current statusof the Arctic:1.
It is advisable legally to qualify the Arctic Ocean floor, in the interests ofRussia and other Arctic states, whose shores close in around it (Norway, Denmark,Canada, and the US) as the continental shelf of those states, subject to delimitationbetween them in accordance with international law.Given fundamental differences between the Arctic Ocean and the Indian,Pacific, and Atlantic Oceans noted above, the unique legal regime of the Arcticthat has formed historically in the form of customary rules of international law202should be evaluated separately, together with the current legal status of the Arcticcontinental shelf, and on a wide international legal basis at that. It would be wrongto narrow it down or confine it solely to the UNCLOS, and all the more so to justits Art. 76 (on the boundary between the continental shelf and the internationalseabed area – the “common heritage of mankind”).When determining the legal status of the Arctic continental shelf and itsboundaries, one shall be guided, first and foremost, by the general (customary)international law, since:- Art.
76 of the UNCLOS, being in many aspects a political compromise, isnot free of logical and legal contradictions, including in how it works with Art. 83of the same Convention;- not all Arctic states are parties to the UNCLOS;- the US, as evidenced by the materials of the U.S.
Senate which has deniedto the US President ratification of the UNCLOS in 1994, is not going to self-limitits shelf in the Arctic in favour of the “common heritage of mankind”;- the Arctic and Antarctica were not originally viewed as falling under Art.76 of the UNCLOS, as confirmed by the reports on the informal consultationsduring the 3rd UN Conference on the Law of the Sea among “the three” – theUSSR, the US, and Canada, – or in the format of “the five” – that is, in addition tothese three countries, also Denmark and Norway, although the materials of suchconsultations were strictly confidential and the states agreed not to disclose them;- Russia’s hasty announcement in 2001 of a self-restrictive boundary of itsArctic shelf resulted in the serious adverse consequences noted above (the loss ofover 330,000 sq.km of shelf; an “estoppel”; prompting “applications” by Canadaand Denmark conflicting with Russia’s position).In the interests of Russia and other Arctic states, the legal regime of thecontinental shelf in the Arctic should be established based on the combination ofthe following priorities: a wide international legal basis (not just treaty rules, butcustomary rules as well); the special standing of the Arctic states; the uniquecharacteristics of the Arctic region (environmental vulnerability first of all); the203need to prevent and promptly resolve bilateral disputes on maritime boundaries inthe Arctic Ocean; and, active use of the mechanisms of bilateral and regionalcooperation of the Arctic states.The most creative, inventive and flexible interpretation of “Arctic”international law is that by Canada, which applies the rules of multilateralinternational conventions and bilateral treaties so as to take account of its strategicinterests in various spheres (protection of the environment, safety, etc.).
Canada’sArctic legal policy is a thought-through comprehensive approach that comprisesstrengthening and safeguarding sovereignty (including by way of setting definitivemaritime boundaries), social and economic development of the region, protectionof the natural heritage (ensuring the region’s ecological prosperity, its sustainabledevelopment), promoting multilateral cooperation in the Arctic (including by wayof increasing the efficiency of the Arctic Council), using “science diplomacy”, andadvancing its Arctic policy in the doctrine. As correctly already observed byscholars, “Canada’s position corresponds to Russia’s Arctic interests,”233 for whichit would be “feasible to take into account… the Canadian practice of championingits rights to exercising purpose-oriented jurisdiction in the Arctic sector.”234Additional propositions on the legal characteristics of the boundaries ofRussia’s Arctic shelf.Pursuant to Art.
76 of the UNCLOS, in 2001, the Russian Federation made asubmission (termed as an “application” by the Russian MFA) with the Commissionon the Limits of the Continental Shelf to receive the Commission’s positiverecommendation on drawing Russia’s outer limit of its continental shelf, includingin the Arctic (hereinafter, the Application). The Application was drafted between1997 and 2001 against the backdrop of expectations that all five states coastal tothe Arctic Ocean (including the US) would follow the UNCLOS Art.
76limitations of shelf in the Arctic. Moreover, there was the positive factor of aRussian Chair of the Commission at the time.233Moscow Journal of International Law. Nikolaev А.N., Bunik I.V. Op. cit., P. 28.234Ibid.204By now, the situation in political, legal and geostrategic terms hasconsiderably changed.Firstly, the U.S. never acceded to the UNCLOS, since 2001, the year ofexpectations. Thus, the U.S. is at present not bound by conventional obligations todelineate its continental shelf. Moreover, official authorities of the US have madestatements (without any justifications under the UNCLOS) to the effect that thecountry’s continental shelf stretches for 600 miles north of Alaska, and thendeclared that its continental shelf ran for 900 miles.
It should be noted that suchactions by the US correspond to the provisions of the 1958 Convention on theContinental Shelf it is party to, so formally the US is acting within the scope ofinternational law.Secondly, Norway reserved its rights to make future claims to the highlatitude shelf north of the regions for which it has already received a positiverecommendation from the CLCS.Thirdly, an analysis of the available information shows that none of the fiveArctic states (except for Russia) is planning officially to waive claims to Arcticshelf in favour of non-Arctic state parties to the UNCLOS or officially express anintention to create an area of the “common heritage of mankind” in the Arctic.Here, one should consider that:- creation of such an area in the Arctic is not provided for in theFundamentals of the State Policy of the Russian Federation in the Arctic Till 2020and Further dated 18 September 2008;- in the present conditions, it is primarily the US that is interested in theRussian Federation and other Arctic states limiting their shelf under Art.
76 of theUNCLOS, thereby increasing the area of the high seas in the Arctic free foreconomic activities.Fourthly, Canada, which after the Russian “application” of 2001 changed itsposition, ratified the 1982 UNCLOS in 2003 and is selectively fulfilling itsobligations thereunder, relying not only on Art.
76, but also on Art. 83, probing for205the opportunity of drawing some sort of preliminary delimitation lines withneighbouring Arctic states, prior to filing an Art. 76 “application”.Here, Canada takes into account that the Arctic sector of the US does exist: itis formed by meridian (sectoral) lines joining at the North Pole as provided by theRussian-British Treaty of 1825 and the Russian-American Treaty of 1867.At the same time, Canada, having conflicting legal claims to shelf in theU.S. Arctic sector, is mindful of the fact that the US has not mapped its sector andis not relying on it in national legislation. Moreover, in the Agreement between theUSSR and the US on the Maritime Boundary of 1990, that unified delimitation lineextends north “as far as permitted under international law”, but not “due north,without limitation”, as allowed under the 1867 Treaty. Furthermore, the US isobjecting to Canada’s position (“sectoral delimitation”) in the Beaufort Sea; this iswhy there is no delimitation line between the US and Canada in that sea.The text of communications in response to Russia’s 2001 “application” byCanada and Denmark may be understood to mean that those two countries haveindicated their intention and willingness to negotiate with the Russian Federationthe issue of delimitation of Arctic shelf between them and Russia under Art.
83 ofthe UNCLOS.That approach is beneficial for all Arctic states in terms of geostrategy – ascompared to straightforward performance of Art. 76, since in that case the entireArctic shelf would be delimited only among the five Arctic States, and none ofthem would suffer losses in favour of the “common heritage of mankind”.Consequently, this work has shown the need for modernization of the legalposition of the Russian Federation on the Arctic shelf, the turn from preparation ofthe second “application” following the 2001 scenario towards a comprehensive,multi-vector approach: “probing” and then holding official negotiations on thedelimitation of the Arctic shelf with Canada and Denmark under Art. 83.At the same time, Russia is advised against stopping scientific studies andgathering data on the structure of the Arctic Ocean floor, which may be needed forthe purposes of delimitation of the Arctic shelf.206Given that at present the Russian Commission member is no longer itsChair, as well as that back in 2001 that fact did nothing to prevent theCommission’s refusal to issue a positive recommendation on Russia’s“application”, one has to conclude that it is unreasonable to overestimate the“chairmanship” factor.Moreover, this work has shown that foreign states, and primarily the US,may obtain and implement, in the long term, competitive advantages in developingthe area of the Arctic shelf the Russian Federation officially abandoned (under itsApplication) in 2001.
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