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Summary of Working Paper No. 37-1996

IV.3.1, The Legal Status of the Russian Baselines in the Arctic.

By R. Douglas Brubaker, The Fridtjof Nansen Institute, Norway.

In this Working Paper the validity under international law of the straight baselines the Soviet Union established in the Arctic and which Russia maintained will be examined. Rather large discrepancies exist relative to the traditional criteria for establishing straight baselines for various sections of the Russian Arctic coast. These include basepoints established on sand, which may be drying, without installations, on drying rocks without installations, possibly at sea, and on single or a few islands or rocks far to sea and at large angles to the general direction of the coast. These latter would have doubtful international recognition due to their anonymity. Straight baselines are established along relatively smooth coasts not deeply indented or cut into, or if so, by only one indentation or on one or a few more small islands doubtfully fringing.

Looking at the bays, large shallow bays are enclosed by closing lines greater than 24 miles, and if the length is 24 miles or less, the areas are less than the semicircle of the length of the closing line. In spite of this there exist large sections of the Russian coastline in complete compliance. These include using the low water line as a normal baseline for smooth coasts; various sections on which straight baselines are established are deeply indented and cut into; there are fringing islands along the coast in the immediate vicinity which appear to form a unity with the mainland or form a screen which masks a large proportion of the coast from the sea; some straight baselines do run in the general direction of the coast; not a few of the fjords would also qualify as bays; small deep bays amply meet the bay requirements of closing length and area; and straight baselines established around several of the deltas would arguably qualify both under the fringing islands as well as the delta regime. In short the straight baselines and closing lines established along segments of the Russian Arctic coast exhibit most "pathologies" and at the same time in other segments exhibit complete compliance with the traditional criteria.

More importantly, however, Russia has moderate support in State practising these discrepancies contrary to the traditional criteria. Briefly some twelve States have enclosed failed bays and some fourteen States have located basepoints at sea. With regard to the latter the Russian practice may in fact be rather conservative since the Russian basepoints are located on drying rocks, albeit without installations, and very few at sea. Under this reasoning the use of sand for basepoints as long as it is drying seems also justifiable. The use of ice for establishing a basepoint is controversial, however seems at least as justifiable as placing them at sea. Some twelve States have established straight baselines at great angles of deviation from the coast. Some thirtyfive States have established baselines along all or sections of their coastlines which are smooth or using islands doubtfully considered fringing. Even where liberal application has occurred for enclosing deltas, such as using non-fringing islands and rocks on which to establish the basepoints, basepoints at sea have not been utilized as in the case of Bangladesh.

Although the total number of claims at variance with the traditional criteria in themselves may be not considerable when seen in terms of a total of fortyfive to eighty States establishing straight baselines, they have been largely unopposed. This applies also to the Russian Arctic straight baselines in that it appears it is only the U.S. which has protested. Thus, though many of these enclosures by straight baselines and closing lines certainly fail the traditional criteria for establishing straight baselines and basepoints as well as the traditional criteria for enclosing bays, due to the moderate State practice which is largely unopposed by other States, Russian practice with regard to the establishment of straight baselines and closing lines in the Arctic, opposed only by the U.S., cannot be said to be inconsistent with international law.