диссертация (1169188), страница 53
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The Law of the Sea. 3rd edition. Manchester University Press. 1999. P. 106. (494 pp.).233most notably, the product of the consultation efforts of the “Arctic three” at the 3rdUN Conference on the Law of the Sea, namely, Canada, the USSR, and the U.S.:“Article 234 – sometimes called the ‘Arctic article’ is one of the fewprovisions in the Convention the terms of which were negotiated directly betweenthe States concerned – in this case Canada, the USSR and the United States ofAmerica – and incorporated without opposition in the various negotiating texts.”262In general, the following statement found in the Commentary, too, does notcontradict the Russian international law doctrine:“The inclusion of article 234 in the Convention as Part XII, section 8,notwithstanding its geographical scope – limited in reality to the ice-covered polarregions, principally of the Northern Hemi-sphere – emphasize the global characterof the whole Convention, which applies to all the seas and oceans of the world.
Itpicks up the theme of article 194, paragraph 5, with its reference to “rare or fragileecosystem.”263We should remark, however, that not only the “fragile ecosystem” and the“ice” factor explain the special legal regime “of the Northern Hemisphere.” Asrepeatedly emphasized in Russian doctrinal sources, starting from the book byProfessor Lakhtin cited above and up to the current research of the legal regime ofthe Arctic by the Professor of the MGIMO – University A. Vylegzhanin, the statusof the Arctic is also affected by historic title, special geographical factors, thelegislative and treaty practice of Russia and other Arctic states.Extremely important is the “doctrinal consensus” of the Russian doctrinescited above and Anglo-American legal scholars (cited further) to the effect thatArt.
234 confirms the lex specialis on the status of the Arctic:“Article 234 is the only provision in Part XII which accords to a coastalState the right to adopt and enforce within the limits of its exclusive economiczone its own nondiscriminatory laws and regulations for the prevention, reductionand control of marine pollution in the circumstances contemplated by the article.262United Nations…A Commentary.
Volume IV. Dordrecht/Boston/London. 1991. P. 393. 769 pp.263Ibid.234To that extent, it is a lex specialis, particularly in relation to article 211, paragraphs5 and 6 (on special circumstances), which it overrides in the geographical areas towhich it relates. The general objective of the article is to balance the interests ofthe coastal State in ice-covered areas within the limits of its exclusive economiczone with the general interests of international navigation.”264Of utmost importance is the same doctrinal consensus as to the applicabilityof Art.
234 to the legal regime of Arctic straits, even where the legal positions ofrelevant States differ as to whether a strait (passage) in the Arctic is aninternational one or not:“There was a political connection between some aspects of the legal regimeof strait being negotiated in the Second Committee (especially those in polar andice-prone areas, above all in the Northern Hemisphere), and the environmentalprotection measures which States bordering such straits felt they needed to be ableto undertake in order to protect the exceptionally fragile ecosystems in thosewaters, a matter being negotiated in the Third Committee.
The two aspects becameseparated, the straits aspect (article 233) being placed in section 7, on safeguards inrelation to enforcement. Article 234, the only provision in section 8, attempts toachieve a different balance with regard to the enforcement of national laws andregulations concerning marine pollution in ice-covered areas. By its terms, article233 does not apply to section 8.”265That is, as noted in the above UNCLOS Commentary, one has to correctlyassess the applicability of Art. 233 stating that the legal regime of straits used forinternational navigation is not affected by rules relating to prevention, reducingand controlling pollution of the marine environment (Section 5 of Part XII);enforcement (section 6 of Part XII); safeguards (section 7 of Part XII). Art.
233,however, does not apply to the Arctic waters to which Art. 234 applies (“icecovered areas”).264Ibid.265Ibid.235Also congruent with the Russian teachings of international law is the AngloAmerican UNCLOS Commentary’s statements to the effect that Art. 234 isconfined only by the 200-mile limit of the EEZ:“As indicated, in ice-covered areas coastal States may enact their own rulesand regulations applicable within the limits of the exclusive economic zone.
Theyremain bound by international rules or standards as a minimum, but may imposemore stringent requirements unilaterally. The specific conditions are that the lawsand regulations of the coastal State are nondiscriminatory; that they have dueregard to navigation and to the protection and preservation of the marineenvironment based on the best available scientific evidence; and that they relate toareas within the limits of the exclusive economic zone which are covered by ice formost of the year, where particularly severe climatic conditions create obstructionsor exceptional hazards to navigation, and where pollution of the marineenvironment could cause major harm to or irreversible disturbance of theecological balance.”266Nor are there any substantial contradictions with Russian doctrinalstatements in the following propositions of the Anglo-American collective of legalscholars:“The condition of non-discrimination, also an essential requirement of theuser States, is commonplace in this Convention (see para.
227.1 above). In thecontext of article 234, and in light of article 227, it would appear to embrace notonly the absence of discrimination between foreign vessels of differentnationalities, but also discrimination between foreign vessels and vessels of thenationality of the coastal State concerned…There is no definition in the Convention of “ice” or “ice-covered areas”(“zones recouvertes par les glaces”; “pokritye l dom raiony”; “zonas cubiertas dehielo”). The World Meteorological Organization (WMO) maintains a standardizedclassification of sea-ice terminology and ice reporting codes, including an266Ibid., P. 396.236illustrated glossary of sea-ice conditions.
The article is not limited to ice whichoriginates at sea – it relates to all ice encountered at sea.The limitation of article 234 to ice-covered areas “within the limits of theexclusive economic zone” is deliberate. It indicates that for those who negotiatedarticle 234, the remaining provisions of the Convention, taken as a whole, wereseen to be adequate to the coastal State.”267It is regrettable, however, that the authors have not given any specificattention to the issue of special rights of the States coastal to an ice-bound area, notin the EEZ, but within their territorial sea, where a geographic strait is constitutedby the waters of the territorial sea of only one coastal State and that coastal Statedoes not qualify this strait as an international one. After all, this is the issue wherethe international legal positions of the U.S. and Canada sharply diverge, as shownabove in the Chapter on the baselines in the Arctic.At the same time, it is comforting that the authors of the English UNCLOSCommentary are very balanced and careful in their statements on other issues ofinterpretation of Art.
234:“There are several special conditions for this exceptional power of thecoastal State to adopt and enforce its additional non-discriminatory laws andregulations for the prevention, reduction and control of marine pollution fromvessels in those ice-covered areas. Each part of the sea to which this article appliesmust be a zone in which particularly severe climatic conditions exist and where thepresence of ice covering such area for most of the year creates obstructions orexceptional hazards to navigation. In addition, pollution of the marine environmentof ice-covered areas could cause major harm to or irreversible disturbance of theirecological balance. As a safeguard for freedom of navigation, the coastal Stateenacting such additional laws and regulations must have due regard to navigationand the protection and preservation of the marine environment, and base itself onthe best available scientific evidence.267Ibid.237“There is no published material on the record to explain the expression“most of the year”.
As a practical matter, local ice conditions will vary from yearto year, and clearly it is the general characteristic of the climate and its relationboth to the ecology and to navigation in the region concerned that should be bornin mind.”268The latter belief, however, could be objected to since the rather clear text ofthe UNCLOS is thus diluted, resulting in uncertainty. Following the rules ofinterpretation of the 1969 Vienna Convention on the Law of Treaties, one has toassume, it appears, a different understanding of “most of the year” contained in theUNCLOS Art. 234.
A year is 12 months; consequently, 6 months plus 1 dayalready makes “most of the year.” Otherwise, the uncertainty in the construction ofthat wording may lead to disputes between the coastal and other states.We do not think, however, that interpretation of the expression “most of theyear” is a problem. Again, 5 months are obviously not “most of the year”, while 7months and more might already constitute “most of the year”.But even greater criticism is possible for the following statement by therepresentatives of Anglo-American doctrines:“By article 236, warships and other vessels entitled to sovereign immunitydo not come within the scope of article 234; on the other hand, Part XV, on thesettlement of disputes, is fully applicable to disputes concerning the interpretationor application of article 234.
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