123 / 532
107
WHAT IS THE LEGAL REGIME OF THE ARCTIC?
Conference on the Law of the Sea.
47
The question of whether the straits which form
the Northwest Passage are used for international navigation and whether the right of
transit passage refers to them, however,
raises doubts.
48
A similar question rises in relation to the Northeast Passage in northern Russia. It
is a question whether these straits are straits for international navigation and whether
the right of transit passage refers to them.
49
3.3 Claims to the continental shelf in the Arctic
The term c
ontinental shelf
50
has appeared in international relations since the
beginning of the 20
th
century. As far as the Arctic is concerned, Russia claimed their
right for some islands in the Arctic Ocean already in 1916, claiming that these islands
are a continuation of the
Siberian continental platform.
51
The importance of the continental shelf lies in the fact it is not part of the territory
of a coastal state; the coastal state exercises its
sovereignty
for the purpose of exploration
and exploitation of natural resources. This means that the
coastal state has sovereign
rights
and nobody else can perform these activities without the expressed consent of the
coastal state. The rights of the coastal state over the continental shelf do not depend
on occupation, effective or notional, or on any express proclamation. These regulations
are contained in Article 2 of the Convention on the Continental Shelf of 1958. The
International Court of Justice ruled in the North Sea Continental Shelf case in 1969
and defined the regulation as a
demonstration
of
customary international law.
52
Practically
the same regulation is contained in Article 77 of the UN Convention on the Law of
the Sea of 1982. The exploitation of the continental shelf can have great importance
in the Arctic Ocean considering its extensive mineral resources (see above), while the
possibilities of exploitation are increasing due to the melting of Arctic glaciers.
The basic definition of the continental shelf is contained in Article 76, paragraph 1
of the UN Convention on the Law of the Sea, according to which “the continental
shelf of a coastal state comprises the seabed and subsoil of the submarine areas that
extend beyond its territorial sea
throughout the natural prolongation of its land territory
to the outer edge of the continental margin”.
This definition was already contained in the judgment of the International
Court of Justice in the
North Sea Continental Shelf
cases
53
of 1969. According to this
judgment the continental shelf is
the natural prolongation
of the land domain into
and under the sea. The International Court of Justice judgment of 1969, however,
47
Churchill, R. R. and Lowe, A. V.,
op. cit.
, p. 109.
48
Ibid.
, p. 106.
49
Ibid.
50
Molodcov, S. V.
Meždunarodnoje morskoje pravo
. [International law of the sea] Moskva: Meždunarodnyje
otnošenija, 1987, p. 117.
51
Ibid.
52
Evans, M. D. (editor)
International Law
. Second edition. Oxford: Oxford University Press, 2006, p. 641.
53
Ibid
., p. 642.