диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 5

At thesame time, it would be reasonable to dismiss the prevailing Anglo-Americandoctrinal ideas of borrowing regulation from other parts of the World Oceanreflected in treaty and non-treaty rules that might not serve as an adequate legalframework to solve the abovementioned issues in the unique conditions of theArctic, since they emerged in different political, legal, geographical, climatic,social and cultural circumstances.10.The most sought-after and fairly efficient legal mechanism forreconciling economic, social and ecological interests with economic activitiesavailable thus far, namely, the environmental impact assessment (EIA) procedure,as it exists for the regions of the Indian, Pacific, and Atlantic Oceans, cannot beautomatically transplanted to the Arctic legal regime.

The nature of the Arcticremains understudied, and in light of the ongoing rapid climate change, there isessentially no representative scientific data for assessment, projections and analysisof the potential consequences of any major economic project for the environment,as required for an EIA. Another serious impediment for conducting EIA in theArctic is the requirement to involve the local population, which is a key componentof the procedure itself. In that context, the Western lawyers’ suggestions on a panArctic impact assessment procedure based on the mechanisms used in otherregions, appear untenable. It is necessary to substantially revise the legal content ofthat procedure, including the methods of monitoring; to adapt them to the specificconditions of the Arctic; and, most importantly, to replace the traditional EIA thatfocuses on one particular object, with a strategic ecological assessment of multiobject and space-specific nature.11.A study of a wide selection of treaty and non-treaty sources ofinternational law, cases and scholarly publications by Western lawyers indicates22the need for wider application in regulating any activity in the Arctic, includingnavigation, fishing, production of oil and gas, tourism, of the precautionaryprinciple (or the precautionary approach), whose key premises are found in theUNCLOS, the Biodiversity Convention, and the guidelines of the Arctic Council.Where climate change unravels at a quick pace, and its social and economiceffects, including on the global scale, remain unpredictable, it becomes all themore urgent to develop an international legal mechanism of implementing thisprinciple specifically in the Arctic Region.12.The optimal way to preserve the nature of the Arctic, to rationallymanage natural resources in the Arctic Region and to unwind rational economicactivity in the Arctic, is to regulate it within the ecosystem-based approach.

TheAnglo-American doctrine of international law has no unequivocal perception of thelegal meaning of the international legal rules on the ecosystem-based approach. Itappears that the most promising concept is that developed by Professor O.R.Young, consisting in a new social and ecological paradigm, “the world ofecosystems dominated by man”; that in the Arctic, we are dealing precisely with aspecial “social and ecological system”, whose dynamics are defined both bybiophysical and social processes, including law-making and law enforcement.Consequently, it is reasonable to steer the Arctic Council towards elaborating acomprehensive legal model of regional ecosystem management of the Arctic,where man and his activity would be a harmoniously integrated part of theecosystem, while its sustainable use, along with preserving its valuable qualitiesand functions, would be placed at the centre of the internationally negotiatedregime of managing the Arctic environment.23CHAPTER 1.

GENERAL THEORETICAL AND PRACTICAL ISSUES OFTHE STATUS OF THE ARCTIC OCEAN (ACCORDING TO THEINTERNATIONAL LAW DOCTRINES)§ 1. The notions of “doctrines in international law” and “the teachingsof the most highly qualified publicists of the various nations”The English authentic text of the UN Charter, that is Art. 38 of the Statute ofthe International Court of Justice (the Statute «forms an integral part» of the UNCharter, according to Art.

92 of the Charter) instructs the Court to apply amongother sources of International law «the teachings of the most qualified publicists ofthe various nations». Though this source of international law is not legally equal tothe main sources such as «international conventions» and «international customs»and «the general principles of law recognized by civilized nations», it is verysignificant especially in areas where the existence of relevant international customsis unclear or is disputed. That is the case of the Arctic Ocean the legal regime ofwhich was considered as historically established for centuries but is nowquestioned in new environmental environment.What are relevant “teachings of the most highly qualified publicists” for thelegal regime of the Arctic Ocean? Are the papers presented, for example, in theArctic Circle Assemblies in Reykjavik “subsidiary means for the determination ofrules of law” which are applicable for determination of the legal regime of theArctic Ocean?The number of such international conferences on the Arctic is huge, asdemonstrated, for example, in U.S.

legal literature:-The 11th Arctic Frontiers conference, which was held in Tromso,Norway from January 22-27, 2017;-The Fourth Arctic Encounter Symposium, which was held in Seattlefrom April 13:14, 2017;24-The Ecosystem Studies of Sub-Arctic Seas (ESSAS) – AnnualScience Meeting Symposium, which was held in Tromso, Norway from June 1115, 2017;-The 2017 Arctic Circle Assembly, that was convened from October13-15, 2017 in Reykjavik;-The 2017 Arctic Energy Summit which was held in Helsinki, Finlandfrom September 18-20;-The Tenth Polar Law Symposium, which was held in Rovaniemi,Finland from November 13-14, 2017;-The annual Northern Premiers Forum, which held in US in August2017, etc.10On Russia the most significant international conferences on the Arctic arecalled “Arctic as a territory of a dialogue”, the latest took place in April 2019 inSankt-Petersburg.In this context we are to consider what is the meaning of the term “thedoctrines” in theoretical publications.Back in the 19th century, Professor N.M.

Korkunov defined internationallegal science as a “teaching on the complicated form of protection of legalrelations by the joint operation of several sovereign powers”.11 In a famous treatiseon the history of the literature of international law in Russia, Professor V.E.Grabar’ noted that “today’s discipline of the international law emerged in WesternEurope”.

At the same time, Professor Grabar’ shows what eminence the Russianinternational legal thought had reached in the 17th through 20th centuries.12 As earlyas in the Soviet period, Professor F.I. Kozhevnikov characterized the level ofinternational law rules in Russia thus: “Russian literature on the International Law,10ArcticLawandPolicyYearinReview:2017./WashingtonJournalofInternationalLawandPolicy.2018.PP.260-262.11Korkunov N.M.

Mezhdunarodnoe pravo. Lektsii, chitaemye v voenno-yuridicheskoi akademii [International Law.Lectures for the Military and Law Academy]. St.-Petersburg. 1886. P. 10.12Grabar’ V.E. Materialy k istorii literatury mezhdunarodnogo prava v Rossii (1647-1917) [Materials to the Historyof Literature on International Law in Russia (1647-1917)]. Reprinted. Zerkalo. М. 2005. (344 P.) P. 1 (XL +847 P.).25by the abundance of its ideas, by the depth of its scholarly analysis, by the breadthof political and legal material covered, by its progress, by the force of its scientificforesight, by its humanity, and, lastly, by the elegance of its literary form is notonly far from being inferior to the best Western European specimen in this area ofthe Law, but, in some respects, decidedly surpasses them.”13Professor G.I.