диссертация (1169188), страница 60
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the whole of Alaska, whichincluded both mainland and maritime domain; i.e., both states assumed Russia tohave title over the entire territory it was ceding, including the territorial sea.According to the 1867 Convention, the inhabitants of the ceded Alaska had anoption to choose their nationality, which had to be exercised within three yearsfrom the Convention’s entry into force; Russia also handed over to the US allmilitary fortifications in the ceded territory of Alaska. It was due to the 1867Convention that the U.S. became a state bordering the Bering Strait. Prior to the1867 Convention, the coasts of the strait were subjected to the sovereignty of onlyone state, Russia.Later, in 1990, the USSR and the US signed the Maritime BoundaryAgreement.
Article 7 of the Agreement provides that it is “subject to ratificationand shall enter into force on the date of exchange of instruments of ratification.”The Agreement was ratified by the U.S. only, but the U.S. and the USSR agreed to337Scientific Report “Problems of Environmental Safety in Expanding Navigation in the Bering Strait” // WWF:[website]. URL: http://www.wwf.ru/about/what_we_do/seas/shipping/doc3361/page1.338Owens J. The Legal regime of the Bering Strait // China Oceans Law Review. 2011. No. 2.
P. 85–86.265undertake to provisionally apply it until it enters into force, starting from 15 June1990 (which is permitted under Article 25 of the 1969 Vienna Convention on theLaw of Treaties). The parties to the 1990 Agreement, having accepted the “westernlimit” described in the 1867 Convention as “the maritime boundary between theUnited States and the Soviet Union”, defined the location of that boundary in acoordinated fashion.
It was affirmed that the boundary passes through the BeringStrait: “From the initial point, 65° 30’ N., 168° 58’ 37” W., the maritime boundaryextends north along the 168° 58’ 37” W. meridian through the Bering Strait andChukchi Sea into the Arctic Ocean as far as permitted under international law.”The last phrase is not legally synonymous to the statement of the 1867 AlaskaTreaty of Cession: “proceeds due north without limitation.” According to someanalysts, this deviation from the 1867 Convention’s wording must be interpreted tomean that both parties of the Agreement assumed that international law did notpermit a boundary line between two states in the Arctic Ocean to proceed “withoutlimitation” past the North Pole.
However, there is no written confirmation of suchan interpretation. It can be suggested, by way of doctrinal assumption, that in 1867,the Russian Empire and the U.S. conceded that the “Frozen Ocean” boundarydetermined by the 1867 Convention might extend towards the geographical NorthPole, as it was the point of intersection of the sectoral boundaries determined bythe 1825 Anglo-Russian Convention on Borders and the 1867 Russo-AmericanConvention.339At present, the Bering Strait, which is the easternmost point of the NortheastPassage, the “national transportation thoroughfare of Russia” (according toRussian legislation), could hardly be said to be located along a “worldwide searoute.” A reminder of the applicable definitions is in order here.339Criticism of the 1990 Agreement in the State Duma of the Russian Federation was due to the way continentalshelf in the Bering Sea is delimited, instead of how the delimitation line runs either in the Bering Strait or north ofthe same.
For more details see Vylegzhanin A.N. 20 let “vremennogo primeneniya” Soglasheniya mezhdu SSSR iSShA o linii razgranicheniya morskikh prostranstv 1990 goda [20 Years of “Provisional Application” of the 1990USSR-U.S. Maritime Delimitation Agreement] // Vestnik MGIMO–Universiteta [MGIMO University Review].
No.1 (10). 2010. P. 104–113.266The term “international strait” is widely used in legal literature and in courtjudgments, but the generic term used in the 1982 UNCLOS is “a strait used forinternational navigation”.The Bering Strait connects the Bering Sea and the Chukchi Sea, whichcontain parts of the high seas and an EEZ. The freedom of navigation principleapplies in those areas. The Bering Strait has never been considered as a part ofhistoric (i.e. internal maritime) waters of Russia or the U.S.340 According to theofficial legal position, both states bordering the Bering Strait consider it to beinternational.Although the total number of vessels passing through the Bering Straitannually is fewer than the number of vessels that used the Corfu Channel in 1949,both Russia and the U.S.
consistently assume that the Bering Strait is and has beenused for international navigation.341 Moreover, the intensity of navigation in theBering Strait region is increasing as more vessels are involved in the commercialdevelopment of the Beaufort Sea and the Chukchi Sea shelf. It is projected that“due to the increasing intensity of navigation in the Northeast Passage, the numberof vessels going through the Bering Strait will reach 1,000 per year by 2017, andincrease to 2,000 per year by 2021.”342 The above confirms that the special legalregime of straits used for international navigation, envisaged in Part III of theUNCLOS, is applicable to the Bering Strait.340The Anglo-American and Russian doctrines characterize the institution of historic waters in international lawwithout material differences: Vylegzhanin A.N., Matishov G.G., Morgunov B.A., Sokolova E.L.
Mezhdunarodno–pravovaya kvalifikatsiya morskikh raionov v kachestve istoricheskikh vod [International Legal Qualification ofMaritime Areas as Historic Waters]. M. MGIMO University. 2012. 112 pp. See also, e.g., Brown E.D. TheInternational Law of the Sea. Vol. I. Dartmouth Publishing Company. 1994. P. 31 et seq.341According to UK data on the number of vessels passing through the Strait of Corfu: “During the period of oneyear nine months, the total number of ships was 2,884.” – I.C.J. Reports 1949.
P. 29. According to the NortheastPassage Administration, the total ships, including foreign ships, that passed through the Russian Bering Strait waterswas: in 2010–2012, no more than 40 ships annually; in 2013 – 71 ships. Foreign legal literature supplies differentdata, referring to the data of the state of Alaska: in 2006 around 6,000 ships sailed in the Arctic; in 2011 – around7,000 ships; in 2009, 277 ships passed through the Bering Strait; in 2010 – 513 ships. See E.B. Ristroph.
LooseningLips to Avoid Sinking Ships: Designing a Ship Communications System for the Bering Strait Region. / IndianaInternational & Comparative Law Review. Vol. 24. No3. 2014. P. 582 et seq.342Workshop to identify several viable options for the protection of Ecologically and Biologically Significant Areas(EBSAs) from the possible negative effects of shipping and other maritime activities in the Bering Strait Region.WorkshopReport,26–28June2012.Nome,Alaska,USA.URL:http://cmsdata.iucn.org/downloads/iucn_beringworkshopi2012_russian_2.pdf.267One of the states bordering the Bering Strait (the US) is not a party to theUNCLOS.
After the conclusion of the 3rd UN Conference on the Law of the Sea,the US refused to treat Part XI of the adopted 1982 Convention (on the “Area” asthe common heritage of mankind) as jus cogens, or a peremptory norm ofinternational law from which no derogation is permitted (Article 53 of the 1969Vienna Convention on the Law of Treaties), regardless of whether or not the statein question took part in the specific international agreement providing for the saidnorm.
According to the international legal stance of the US, “the definition of thecommon heritage of mankind included in the 1982 Convention is not a jus cogensnorm.” Therefore, neither are the provisions of Article 76 of the UNCLOS that arecompletely new for the law of sea: they define the geological, geomorphologicaland distance criteria for the delineation of a coastal state’s continental shelf fromthe Area extending beyond 200 nm from the baselines. As noted by the US, thetext of the 1982 Convention and transcripts of the 3rd UN Conference on the Lawof the Sea bear witness that the suggestions of some delegations to include thestatements on “Area” within the body of jus cogens norms were declined.343 Withthe exception of the abovementioned novelties for the law of the sea that werelisted in the UNCLOS, virtually every other norm (including those absent from the1958 Geneva Convention on the Law of the Sea – for example, that on EEZs) isrecognized by the US as rules reflecting customary international law.
Accordingly,such other norms of the UNCLOS are currently also deemed binding on the U.S.344Such norms include Part III of the UNCLOS (Straits used for internationalnavigation). Based on the above, it may be concluded that both states bordering theBering Strait – the Russian Federation and the US – consider Part III of theUNCLOS applicable to the Bering Strait.343Third United Nations Conference on the Law of the Sea. Doc.A/CONF.62/WS/37; Add.1–2. P. 243.344R. Armando. United States Policy in the Arctic / Environmental Security in the Arctic Ocean // Ed.
by P.A.Berkman and A.N. Vylegzhanin. P. 86.268According to the UNCLOS, to qualify for a special legal regime a straitmust: 1) be used for international navigation; 2) be situated between one part of thehigh seas or an EEZ and another part of the high seas or an EEZ (Article 37).Should Russia and the US develop a special international agreement on theregime of the Bering Strait, one of the issues will be whether or not to introduce adifferentiated military vessel passage regime for states bordering and states notbordering the Bering Sea. The issue, however, was not examined in AngloAmerican doctrines.Article 37 of the UNCLOS defines the scope of the regime of transit passagethrough straits. Such straits must be used for international navigation between onepart of the high seas or an EEZ and another part of the high seas or an EEZ.
Giventhe political and legal geography of the Bering Strait, Russia and the US specifytogether, which of the four channels of the strait fall under that article.Article 38 of the UNCLOS defines the legal regime of transit passage,namely “for the purpose of continuous and expeditious transit of the strait betweenone part of the high seas or an exclusive economic zone and another part of thehigh seas or an exclusive economic zone.” Transit passage refers to the navigationof foreign vessels through international straits with intent to enter high seas or anEEZ.345 States bordering the strait may not impede transit passage.
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