диссертация (1169188), страница 47
Текст из файла (страница 47)
Since the map indicating the seabed area abandoned byRussia in its Arctic sector has been available on the UN website and has beenwidely publicized, it will be the starting point for all participants of any subsequentdiscussions (both in the Commission and among Arctic states) on the ways tostudy and develop the Arctic continental shelf.Given the foregoing, the work outlines proposals for the urgent revision ofRussia’s position in defining the limits of the continental shelf in the Arctic inorder to adapt it to the current conditions.At present, after Russia’s efforts to perform Art.
76 in the Arctic, there areno precise data on any of the Arctic states striving, following the example ofRussia’s 2001 application, to allow formation of an area of the common heritage ofmankind in the Arctic Ocean. Thus, Canada, for instance, declared that it ispreparing to file an Art. 76 “application”, but subject to consultations on thepreliminary delimitation line. Moreover, both Denmark and Canada are draftingtheir “applications” along the lines of the “maximum” (“aggressive”) option,assuming that the Lomonosov Ridge is the geological continuation of theircoastline.During international scientific conferences, and other international meetings,Canada’s delegates make it clear that Canada was forced to fulfil Art. 76 in theArctic following Russia’s example.
However, the opportune time is now gone. IfRussia now reverted to the position voiced during informal consultations amongthe three or five Arctic states held during the 3rd UN Conference on the Law of the207Sea, Canada would not go back to its pre-2001 position. Consequently, Russia nowhas no legal opportunity to return to the situation prior to its 2001 “application”.It is in these contemporary conditions that one can deem justified thespecific proposals on international legal measures to ensure the economic interestsof the Russian Federation in the Arctic, namely, those aimed at taking account ofthe positions of Canada, Denmark, Norway, and the US with respect to the Arcticshelf, as well as their legislative practice of regulating the respective economicactivities.
In the same context, we have identified key proposals to improve thelegislation of the Russian Federation determining the terms of economic operationsin the Arctic continental shelf. I have formulated suggestions for revising theposition of the Russian Federation in defining the boundaries of the continentalshelf in the Arctic region. I have also demonstrated in detail the feasibility ofharmonizing the regimes of navigation along the Northeast and NorthwestPassages.3. The 1990 Agreement, as it was shown, strategically corresponds toRussia’s interests in the Arctic Ocean, especially provided that the 1990Agreement and the 1867 Treaty are properly interpreted and applied inconjunction. But it does not fully take account of Russia’s interests in the BeringSea.
That territorial loss in that sea could have been avoided if the USSR’sresponses in 1977 and 1990 to the US proposals had been different. Because of itsloss of over 13 thousand sq. miles in the Bering Sea, Russia may, of course,decide to cease performance of the 1990 Agreement based on the international lawof treaties and Russian law. In accordance with Art. 25(2) of the 1969 ViennaConvention on the Law of Treaties and Art.
23(3) of the 1990 Federal Law OnInternational Treaties of the Russian Federation, provisional application byRussia of the 1990 Agreement may be terminated: thus, it is sufficient to notify theUS of Russia’s intention “not to become party” to the 1990 Agreement. No lawneeds to be adopted by Russia for that.However, now, that decision, after 20 years of the Agreement’s provisionalapplication, will not be the optimal legal solution to the issue of the fate of the208limits of sovereignty and jurisdiction of Russia in the Arctic Ocean and BeringSea.- Such termination of the provisional application of the 1990 Agreementwould ignore the international legal rule of “estoppel”. 235 Our country’sprovisional application of the 1990 Agreement has created legal effects in favourof the arrangements reflected therein.
Given the estoppel rule, terminating theprovisional application of the Agreement now will not mean that Russia would goback to the same international legal position with respect to the delimitation line inthe Bering Sea, as those that existed prior to the US and USSR exchange of notesin 1977 and before the execution of the 1990 Agreement.- A decision to terminate provisional application would not take account ofthe abovementioned evaluation by the Soviet leadership in 1977 of the “pros” and“cons” of agreeing with the American suggestion to broadly use the 1867 Treatyline for purposes not provided for in that Treaty.- That decision would not take into account that using the 1867 Treaty linein the Bering sea is more beneficial to the US, but in the Arctic Ocean – to bothneighbouring states.- That decision would expose the inconsistency of Russia’s legal positionand would lead to unpredictable consequences, negative for the legal stability ofRussia-US relations.In the existing circumstances, the delimitation line in the Arctic Ocean andBering Sea defined in the 1867 Treaty and the 1990 Agreement should rather notbe doubted.
Rephrasing W. Churchill on democracy as a form of government, forRussia today, the 1990 Soviet-US Agreement is the worst, except for destroying it.Based on the above, I would like to formulate the following proposal. Itwould be advisable to condition Russia’s consent to ratifying the 1990 Agreementon a number of terms.235By virtue of this international law rule, “a party that has acquiesced in a particular situation cannot then proceedto challenge it” (M. Shaw. International Law. Cambridge, 2008, P. 102). By virtue of estoppel, 20 years ofprovisional application by the Soviet Union and Russia of the 1990 Agreement mean the loss of the right not toobserve the line provided in the Agreement.209Firstly, the 1990 Agreement should not be construed as a modification of theprovisions of the 1867 Russian-American Treaty (including as worsening them)applicable to the Arctic Ocean.
Both Russia and the U.S. are interested in a clearconfirmation of the 1867 Treaty line as extending to the North Geographic Pole.An agreement on such a confirmation could be executed in an appropriate form.Secondly, it would be feasible to enter into an agreement with the US at theintergovernmental level on the conservation in the Bering Sea area that wasallocated to the US of Russian fisheries in traditional volumes, given that therespective arrangement was indeed voiced at expert level at some point.§4. Denmark’s submission on the continental shelf in the Arctic (issuesof fact and scholarly opinions)The Kingdom of Denmark, in accordance with Royal Decree No.
259 of 7June 1963, announced its sovereign rights to the seabed and subsoil of thesubmarine areas adjacent to the coast but outside the area of the territorial sea, to adepth of 200 metres or, beyond that limit, to where the depth of the superjacentwaters admits of the exploitation of the natural resources of the said areas (hereDenmark used the wording of Art. 1 of the 1958 Convention on the ContinentalShelf). In accordance with the UNCLOS (and Denmark became party to it onlysince 16 December 2004) (subsequently that decision was also confirmed by theParliaments of the Faroe Islands and Greenland), such sovereign rights areexercised: а) 200 nm from the baselines used to measure the breadth of theterritorial sea; or up to the outer submerged edge of the continent, and thatboundary shall be set by the coastal state beyond the 200-mile limit based onconventional geological and other criteria (Art.
76); b) to the lines delimiting shelfareas with neighbouring states (with opposite or adjacent coasts) under agreementswith them (Art. 83).On 15 December 2014, the Kingdom of Denmark filed a submission withthe Commission on the Limits of the Continental Shelf (the Commission, or theCLCS). In some ministerial documents it is mistakenly called the UN Commission.210It should be noted that the UN does not deal with shelf boundaries (according tothe UN Charter, defining the limits of the shelf is not listed among UN purposes).In doctrinal opinion, Denmark followed the Russian submission of 2001, but madeit with better legal policy. Denmark took advantage of legal mistakes made byRussia in 1997-2001 to ignore boundaries of the arctic sectors. So, Denmark choseto rely upon one of the provisions of UNCLOS – according to which data on thelimits of the continental shelf beyond 200 nm from the baselines used to measurethe breadth of the territorial sea “shall be submitted” to CLCS, in accordance withArt.
76 of the UNCLOS. Pursuant to that article, the Commission shall issuerecommendations to coastal states on matters related to establishing the outerlimits of their continental shelf. The boundaries of the shelf drawn by the coastalstate based on such recommendations shall be final and binding. According to theofficial information of the CLCS, the examination of Denmark’s submission (theRussian Ministry of Natural Resources in its materials uses the term “zayavka”(application) instead, which is erroneous both in terms of the legal meaning of thatword and the formal reason that the UNCLOS does not use the word “application”in this context) was included into the agenda of the 38th Session of the Commissionwhich took place in New York in summer and autumn 2015.236 Denmark qualifiedits document as a “partial submission” of that state to the CLCS in furtherance ofits obligations under Art. 76(8) and Art.
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