диссертация (1169188), страница 52
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It was stated that the delimitation line would constitute the westernboundary of the continental shelf of the Russian Federation, as well as the easternboundary of the continental shelf of the Kingdom of Norway beyond 200 nm in theBarents Sea, and that the Commission’s recommendations do not predetermine thefinal bilateral delimitation.In the above communication dated 20 March 2002 (notificationCLCS.01.2001.LOS/NOR), the Kingdom of Norway characterized the easternportion of the Western Nansen Basin as yet another subject matter of the abovebilateral negotiations with the Russian Federation aimed at executing an agreementon the maritime boundary between the two states.The issue of delimitation of maritime areas in the Barents Sea and ArcticOcean between the Russian Federation and the Kingdom of Norway was settledafter 7 July 2011, the effective date of the Treaty between the Russian Federationand the Kingdom of Norway concerning Maritime Delimitation and Cooperation inthe Barents Sea and the Arctic Ocean dated 15 September 2010.By the Agreement between the USSR and the U.S.
dated 1 June 1990, theparties have delimited their territorial sea, EEZs and continental shelf in theChukchi and Bering Seas, as well as in the Arctic and Pacific Oceans. The U.S. hasratified that treaty, while the Russian Federation is provisionally applying it fromits signing to date.The Russian Federation and Denmark achieved an agreement on theprocedures to follow when each of them submits data to the Commission on theLimits of the Continental Shelf already described above.The Russian Federation and Canada have held consultations and reached anunderstanding that, “When one state submits data to the Commission on the Limitsof the Continental Shelf, the other shall immediately send to the UN SecretaryGeneral a diplomatic note.”229The submission also states that, “Final delimitation of the continental shelfof the Russian Federation in the Arctic Ocean with the Kingdom ofDenmark/Greenland, Canada, the Kingdom of Norway, and the United States ofAmerica will be carried out in accordance with Article 83 of the Convention (afterthe Commission adopts recommendations on the Application of the RussianFederation for the Determination of the Outer Limits of the Continental Shelf inthe Arctic Ocean).”In the Commission’s recommendations on Russia’s first submission, keycommentaries essentially related to the Lomonosov and Mendeleev Ridges viewedas submarine ridges under Art.
76(6) of the UNCLOS that constitute naturalcomponents of the continental margin. In their regard, the CLCS decided that theLomonosov Ridge could not be viewed as a submarine ridge under the UNCLOS.It also concluded that given the current state of scientific knowledge, the AlphaMendeleev Ridge System cannot be deemed a submarine ridge under theConvention.It is asserted in this respect that “the implementation of article 76 [ofUNCLOS] has mostly led to cooperation between coastal states on a bilateralbasis”.256That assertion is not based on analysis of the relation between article 76 (acoastal State – Commission on the Limits of the Continental Shelf) and article 83(one coastal State – a neighbouring coastal State), in the context of the analysis ofthis relation made earlier.Interestingly enough the author recognizes as legitimate that “the RussianFederation and the United State delimited their continental shelf boundary beyond200 nautical miles through an agreement from 1990”.
257 This Agreement wasconcluded without any involvement of the Commission on the Limits of theContinental Shelf. This might make the author support the legal position describedabove according to which delimitation of the Continental Shelf according to article256ElferinkA.TheOuterLimitsoftheContinentalShelfinthePolarRegions./TheLawoftheSeaandthePolarRegions.Eds.E.Molenaar,A.ElferinkandD.Rothwell.Leiden.Boston.2013.P.68[432pp.].257Ibid.P.73.23083 does not depend on delineation according to article 76.
Instead, the author triesto show that the legal basis for the U.S. – Russia 1990 Agreement is the fact thatRussia “has applied this boundary in defining the outer limits of its continentalshelf in its 2001 submission” to the Commission.258 Which is a lapsus jure, takinginto account the US and Russia’s rights on the continental shelf as they areprovided in the 1990 Agreement cannot depend on Russia’s application to theCLCS.The 1990 Agreement (and the boundaries provided by it) is a part ofinternational law independently of the Russian submissions to the Commission – in2001 or in 2015.258Ibid.P.73.231CHAPTER 4.
THE POLAR CODE AS THE NEW COMPONENT IN THEREGIME OF NAVIGATION IN THE ARCTIC§ 1. General characteristics of the legal regime of navigation in theArctic according to Anglo-American doctrine. Article 234 of UNCLOS.One can note the existing differences between the way the Russian doctrinedescribes the legal regime of navigation in the Arctic Ocean seas and how thatissue is discussed, for instance, by the representatives of the international lawdoctrine of the UK and the U.S.In Russia, the most frequently cited chapter on the issue authored byProfessors A.N.
Vylegzhanin, A.L. Kolodkin and Ph.D I.N. Mikhina and publishedunder the editorship of Academician of the Russian Academy of Sciences A.G.Granberg, focuses, first and foremost, on the fact that the regime of navigation inthe Arctic is an integral part of the legal regime of the Arctic region itself andshould be characterized in that context; that under Art. 234 of UNCLOS, the Statescoastal to the Arctic seas may adopt special legal measures to prevent pollution ofthe marine environment from vessels; these States, according to article 234 ofUNCLOS, may also enforce such legal rules.
It is also asserted in Russian legaldoctrine that the Soviet/Russian practice of national legal regulation of transit inthe Northern Sea Route remained unchallenged by the majority of states fordecades (references are also made to Canada’s analogous practice of regulatingnavigation along the Northwest Passage). Russian scholars also assert that there arefundamental international legal grounds supporting Russian law’s qualification ofthe Northern Sea Route as Russia’s “national transportation communication route”in the Arctic.259 In fact, even the latest revision of the Russian laws on the NorthernSea Route reflect such a legal approach.260259Vylegzhanin A.N., Kolodkin A.L., Mikhina I.N. Pravovoi rezhim sudokhodstv v Arktike [The Legal Regime ofNavigation in the Arctic] / Problemy Severnogo morskogo puti [Problems of the Northeast Passage].
Ed.-in-chiefAcademician with the Russian Academy of Sciences A.G. Granberg, V.I. Peresypkin. M. Nauka. 2006. P. 482-501,583.260RIACworkingpaperNVI.2013.Ed.I.Ivanov(inRussian).P.39.232These legal data and relevant doctrinal findings are not even mentioned inthe widely cited treatise on the law of the sea published by Manchester University.The authors describe well-known provisions of the UNCLOS on the legal regimeof navigation in the maritime areas subject to the coastal state’s sovereignty and,separately, beyond such regions – in the EEZ and the high seas. The legal specificsof navigation in the Arctic, however, are confined to a rather curt statement:“In some cases there may be real doubt as to whether or not a strait is a‘transit passage’ strait. The Northwest Passage through the Canadian archipelago,for example, is considered by Canada to fall within its internal waters (Canadahaving drawn straight baselines around its Arctic archipelago in 1985) and to besubject to no rights of passage whatever, whereas the United States considers thePassage to be subject to a right of transit passage.
That dispute was circumventedin 1988 by means of the bilateral Agreement on Arctic Co-operation which obligesthe United States to obtain Canadian consent for voyages of U.S. ice-breakersthrough the Passage while expressly preserving the views and rights of both partieson the question. Somewhat similar doubts arise in relation to the Northeast Passagebeing enclosed by straight baselines drawn in 1985, there are doubts as to whetherthe straits can be said to be 'used for international navigation', and thus attract aright of transit passage, in the light of the handful of sailings through the (often icebound) straits that have actually taken place.”261I can’t agree with these wording, because special characteristics of the legalregime of the Arctic Ocean described above are totally ignored by the authors andalso because UNCLOS Art.
234 is not even mentioned.Unlike the cited Manchester University book, the authoritative multi-volumeCommentary to the 1982 UNCLOS published in English in the Netherlands, in theU.S. and in the UK, is rather thorough in its analysis of Art. 234 of the UNCLOSas applicable primarily to the legal regulation of navigation in the Arctic. Thatfundamental doctrinal source correctly observes that the UNCLOS Art. 234 is,261Churchill R.R., Lowe A.V.
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