диссертация (1169188), страница 54
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It is understood that these were two essentialrequirements of user States in the negotiation of this provision.”269As evidenced by an analysis of the USSR-US diplomatic correspondence(concerning the passage of the US military ships along the Northeast passage), orthat between Canada and the US (on the passage along the Northwest Passage),neither the US, nor Canada believed that military ships were exempt fromcompliance with the legislative regime of the Northern Sea Route or the NorthwestPassage, respectively. And since Art.
234 of the UNCLOS was viewed as one of268Ibid., P.397.269Ibid.238the grounds underlying their international legal positions on the matter, one canhardly conclude that “warships… do not come within the scope of article 234.”Such a comment might be misleading.At the same time, one has to admit that while the USSR’s international legalposition on the Arctic was clear and was consistently maintained, there is nodocumented data on the Russian Government’s current legal position regarding allaspects of the status of the Arctic Ocean.The English language UNCLOS Commentary also raises questions on theinterpretation of the wording “the best available scientific evidence” used in otherarticles of the UNCLOS, and, for that matter, in other international legaldocuments:“The expression ‘best available scientific evidence’ carries the suggestionthat the scientific studies on which the coastal State bases its laws and regulationsshould be suitable for use in a dispute-settlement proceeding.
A similar expressionappears in article 61, paragraph 2, on the determination of the allowable catch inthe exclusive economic zone. The French and Spanish texts of these twoprovisions (unlike the Russian), however, may not coincide.”270While correctly drawing attention to this issue, the representatives of theAnglo-American doctrine, however, do not offer any solution.They can be commended, nevertheless, for a thoroughly verified statementon the connection between the rights of the coastal state under Art.
234 and itssovereignty over internal waters, the territorial sea, as well as sovereign rights andjurisdiction in the EEZ and the continental shelf in the Arctic:“Article 234 addresses problems of navigation and ecology in ice-coveredareas within the limits of the exclusive economic zones of coastal States, such asthose found in the Arctic. It has no implication for any claims to sovereignty orother aspects of jurisdiction in any of the polar or subpolar regions of the world.
Itspractical impact, however, is that it extends the competence of the coastal Statesover marine pollution from vessels (other than warships) in ice-covered areas up to270Ibid., P. 398.239the outer limit of the exclusive economic zone. Thus it provides the basis forimplementing provisions such as those found in the 1970 Canadian Arctic WatersPollution Prevention Act.”271 Again, one can doubt as to whether the wording“other than warships” in the context of article 234 is correct.Another question is to be raised.
There are no clear formulated doctrinalopinions as to conventional rights of the coastal state aimed at preventingenvironmental harm to the resources of the continental shelf in the Arctic, bothwithin and beyond 200 miles, along the entire length of the shelf, within thecontext of article 234, since the bottom of the EEZ (if it is established by nationallaw of a relevant coastal State) is legally the continental shelf of this State.§ 2.
Status of the Polar Code: doctrinal viewsThe International Code for Ships Operating in Polar Waters (or the “PolarCode” for short) prompted both criticism and acclaim from foreign and Russianinternational law doctrine alike as will be shown below. Of even greaterimportance in theoretical and practical terms are the issues following; whichinterpretation of the Polar Code rules is the correct one? And how the Polar Coderelates to other sources of the international law of the sea, primarily to theUNCLOS? And in this context, without doubt, there is a need to take account ofthe English and American doctrinal views on the Polar Code and commentariesthereto.The Polar Code is a new international legal document that has introducedsubstantive amendments into the legal regime of navigation in the Arctic andAntarctic waters characterized above.
The Polar Code is already effective (from 1January 2017 the Polar Code is in force). To understand its content, it is useful torecall that the very concept and normative substance of the document was being“crafted” from international law doctrines, including those proposed withininternational organisations and at conferences, for over 20 years, while theprojections for its application outlined in foreign legal studies vary. The common271Ibid.240ground between scholars with respect to this document boils down to theproposition that it has had a harmonizing effect on the future international legalregime of navigation in the polar regions, primarily, the Arctic Ocean, especiallyfor the coastal Arctic States, and, first and foremost, for Russia and Canada (stateswith the longest Arctic coasts, along which the Northeast and Northwest Passagesrun, respectively).The feasibility of agreeing internationally on a unified legal documentapplicable to navigation in the polar areas has been noted in the Anglo-Americaninternational law studies largely in view of two factors: а) reduction of the area ofthe perennial (centuries-old) ice in the Arctic Ocean; and b) consequently, theintensification of navigation in the Arctic seas.272 As noted in foreign academicpublications, in the Arctic seas: “Although sea ice in the Arctic Ocean has been inslow retreat since the 1950s at a rate of 2,8-4,3% per decade as measured since1979 from… satellites, the annual – averaged rate speeded up to 10,7% per decadefrom 1996 onwards”.273 The data on the reduction of the area of old ice in theArctic presented in different studies, however, varies.
It has been noted, forinstance, that in the Arctic Ocean since 1979 in summer period the area covered byice has diminished by 40%.274 Moreover, it is projected that before the middle ofour century or “possibly before 2030” in summer all the ice will retreat in theArctic Ocean.275 Studies point out not only the reduction of the area of ice, but also272Here and further, I am primarily using the materials from the following sources: The Arctic in World Affairs. ANorth Pacific Dialogue on the Future of the Arctic.
Ed. by O. Young, J. Kim, Y. Kim. 2013 North Pacific ArcticConference Proceedings. KMI and East-West Center. Published in December 2013. Honolulu. USA. P.1-80. Reporton the Goals and Objectives for the Arctic Research 2015-2016 for the US Research Program Plan.
Washington,DC. 2015. P.1-29. Policy Brief N 4. Arctic Climate Change. Economy and Society. By L. Brigham. P. 1-4.Environmental Security in the Arctic Ocean. Ed.by Berkman P. A. and Vylegzhanin A. N. Springer. Dordrecht.2013.460 P. Alaska and the New Maritime Arctic. Conference Report. Ed. Brigham L. W. University of AlaskaFairbanks. 2014. P1-25.273Wadhams P.
Diminishing Sea - Ice Extent and Thickness in the Arctic Ocean/ Environmental Security in theArctic Ocean. Ed.by Berkman P. A. and Vylegzhanin A. N. Springer. Dordrecht. 2013. P.16.274Gunnarsson B. The Future of Arctic Marine. Operations and Shipping Logistics. The Arctic in World Affairs.
ANorth Pacific Dialogue on the Future of the Arctic. Ed. by O. Young, J. Kim, Y. Kim. 2013 North Pacific ArcticConference Proceedings. KMI and East-West Center. Published in December 2013. Honolulu. USA. P. 42. Thereview of foreign legal and scientific data on this matter was done in Moscow Journal of International Law. № 4.2015. P. 43-58.275Ibid.241a considerable shrinking of its thickness.276 Accordingly, researchers have alreadyestablished a certain growth in the number of vessels passing through the NortheastPassage: in 2012 its easternmost point – the Bering Strait – was crossed by circa150 northbound vessels and 150 southbound vessels (“southbound transits”); in2013, the same figures increased: 167 northbound transits and 172 southboundones.277 It is observed that in 2013-2014, from late Autumn, throughout Septemberand October, the Northeast Passage is free from ice almost in all its areas, so thevessels passing through it (such as a 300-metre long super-tanker clear water“Vladimir Tikhonov” with the draught of 162,000 tons) could achieve the speed(as if sailing in iceless areas), that is, an average of 14 knots; accordingly, inAugust 2011 the tanker “Vladimir Tikhonov” took only 8 days to cross through thewhole Northeast Passage.278 At the same time, English language international legalstudies also present facts on the advantages of using the Northeast Passage, ascompared to transit through the Suez Canal or the Indian Ocean to carry cargofrom Europe to Japan, South Korea, China or other Asian developing economies orin reverse.
More specifically, the appeal of the Northeast Passage for shipowners isexplained in foreign studies by invoking several factors: а) vessel transit timeeconomy (by 19 days as compared to the Suez Canal in carrying cargo fromMurmansk to Kobe, Japan); b) accordingly, saving the costs of freight, fuel,provisions for the crew, etc.;) the respective reduction in emissions from vesselsinto the atmosphere; d) no risks of pirate attacks along the Northeast Passageroutes unlike transit in the Indian Ocean.279But even given growth of the area and thickness of ice in Antarctica,280 forinstance, a need has been voiced for specifying the safety standards for navigatingthe polar waters of both the Arctic and Antarctic.
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