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A certain proof of the fact that the seabed under the Arctic Ocean does not fall
under appropriation is the Russian request for
extension of the continental shelf
beyond
the 200 nautical miles limit, which Russia filed within the intent of Article 76,
paragraph 8 of the United Nations Convention on the Law of the Sea of 1982 with
the Commission on the Limits of the Continental Shelf in 2001. According to some
authors Russia behaved in conformance to the Convention on the Law of the Sea
of 1982 for claiming its demands for parts of the seabed.
11
According to Article 77,
paragraph 3 of the UN Convention on the Law of the Sea of 1982, however, the
rights of the coastal State
over the continental shelf do not depend on
occupation,
effective or notional
, or on any
express proclamation
. A similar regulation can be found
also in the Convention on the Continental Shelf of 1958 in Article 2, paragraph 3.
The continental shelf is not
an
object of appropriation
from the side of the coastal
states. The concept of the continental shelf as
res nullius,
on the basis of which the
continental shelf could be object of appropriation, is therefore excluded.
12
The legal
regime of the continental shelf as expressed in the Convention on the Continental
Shelf of 1958 was already described as an expression of customary international law
in the judgment of the International Court of Justice in the North Sea Continental
Shelf Cases of 1969.
The exclusion of applications of territorial claims
towards the Arctic was also expressed
in the European Commission communication
13
to the European Parliament of 2008.
According to this document, „No country or group of countries have sovereignty over
the North Pole or the Arctic Ocean around it“. Concerning the territorial claims,
Wolfrum states that, unlike in the case of Antarctica, where seven states had raised
their claims for territory in the past, there is
currently no territorial claim towards
the Arctic.
14
In the past such claims were raised by Imperial Russia, the USSR and
Canada. With the exception of the islands in the Arctic region it is difficult to claim
sovereignty over the Arctic.
2. International law norms applicable in the Arctic
Provided there is no special regime the issue of legal regime in the Arctic arises.
The Arctic is a specific region – on one hand, it is in fact the sea; on the other, it is
to a great extent frozen sea. This leads to possible questions concerning the specific
regime of this region.
Ilulissat, Greenland (9-10 September 2008) in :
Zeitschrift fur auslandisches offentliches Recht und
Volkerrecht
, 2009, 69/3, p. 752.
11
Posner, E. A. and Sykes, A. O. Economic Foundations of the Law of the Sea.
American Journal of
International Law
, 2010, Vol 104, No 4, p.586.
12
Kolodkin, A. L. Mirovoj okean. [Oceans] Moskva: Meždunarodnyje otnošenija, 1973, p. 98.
13
Commission of the European Communities, Communication from the Commision to the European
Parliament and the Council – The European Union and the Arctic Region, COM (2008) 763 final
(20 November 2008).
14
Wolfrum, R. The Arctic in the Context of International Law.
Zeitschrift fur auslandisches offentliches
Recht und Volkerrecht
, 2009, 69/3, p. 534.