диссертация (1169188), страница 57
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That is, observing those conventionalprescriptions constitutes performance of the binding components of the PolarCode.The issue of the international legal nature of the Code recommendations is,however, not so simple.English legal literature recalls that the entire Polar Code (and not just itsbinding parts) was adopted by an intergovernmental international organization –the IMO – and as such the Code already has international legal value.306 However,305Gunnarsson B. Op. cit. P. 54.306Deggim H. Op.cit. P. 64 et seq.250documents of international organisations were not named among the “subsidiarymeans for the determination of rules of law” in Art. 38 of the ICJ Statute. Rather,the international legal value of the Code’s “non-binding” provisions should be seenin the context of general (customary) international law and universal law of the seaconventions, primarily, the UNCLOS.
The UNCLOS provides in Art. 194 formeasures “to prevent, reduce and control pollution,” which include, among others,measures designed to minimize to the fullest extent possible: pollution fromvessels; pollution from “installations and devices used in exploration orexploitation of the natural resources of the seabed and subsoil”; measures“ensuring the safety of operations at sea”; and, “regulating the design,construction, equipment, operation and manning of such installation or devices.”Such measures are to be taken by states both “jointly” (as in the case of measuresprovided by the Polar Code) and “individually”.
In both cases such states underUNCLOS in fulfilling their general environmental obligation shall “endeavour toharmonize their policies in this connection” (UNCLOS Art. 194(1)). As noted inthe multi-volume Commentary to the UNCLOS, that obligation “relates both to thesubstantive rules of law and to enforcement of national legislation.”307 Art.
211 ofthe UNCLOS, (“Pollution from vessels”) provides, “States, acting through thecompetent international organization or general diplomatic conference, shallestablish international rules and standards to prevent, reduce and control pollutionof the marine environment from vessels and promote the adoption, in the samemanner, wherever appropriate, of routeing systems designed to minimize the threatof accidents which might cause pollution of the marine environment, including thecoastline, and pollution damage to the related interests of coastal States.”The laws and rules adopted by states to prevent maritime pollution shall,under the UNCLOS, “at least have the same effect as that of generally acceptedinternational rules and standards” (Art.
211(2)). The aforementioned UNCLOSCommentary notes that the words “at least” here mean that the domestic legislation307United Nations Convention on the Law of the Sea. A Commentary. Vol. IV. Ed.-in-Chief M. Nordquist.Dordhecht / Boston / London. 1990. P. 64.251“may be stricter, provided they are nondiscriminatory.” 308 This provision isespecially important in the context of UNCLOS Art. 234 (“Ice-covered areas”).We shall recall that it reads as following: “Coastal States have the right to adoptand enforce non-discriminatory laws and regulations for the prevention, reductionand control of marine pollution from vessels in ice-covered areas within the limitsof the exclusive economic zone, where particularly severe climatic conditions andthe presence of ice covering such areas for most of the year create obstructions orexceptional hazards to navigation, and pollution of the marine environment couldcause major harm to or irreversible disturbance of the ecological balance.
Suchlaws and regulations shall have due regard to navigation and the protection andpreservation of the marine environment based on the best available scientificevidence.”We should also recall that under Art. 211(5), the environmental laws andrules of the coastal state adopted with respect to its 200-mile EEZ shouldcorrespond to the “generally accepted international rules and standards.” Then,clause 6 of the same article provides for the procedure for the coastal state’sinteraction with the competent international organization aimed at ensuring thatconformity.In this context, the commentators of the Polar Code remind that Art. 234 isalso an “emergency clause” where the competent international organization (here,the IMO) and the coastal state fail to come to an agreement as to what thatconformity should be.
Art. 234 “overrides” Art. 211, but only “in the geographicalareas to which it relates”309 (that is, within the ice-covered regions of its EEZ).Does it signify, here, that only the provisions of the Polar Code apply (as lexposterior, the subsequent rule as compared to the UNCLOS rule), while Art. 234of the UNCLOS does not? It appears that this should be answered in the negative.As already noted, not all provisions of the Polar Code are binding (unlike theUNCLOS, with all of its rules being, by nature, treaty rules).308United Nations Convention on the Law of the Sea.
A Commentary. Vol. IV. P. 203.309United Nations Convention on the Law of the Sea. A Commentary. Vol. IV. P. 393.252In theory, one can also ask (this question, however, is not asked in theforeign scholarly works cited above) what applies where a domestic statutory ruleof an Arctic state deviates from the respective Polar Code rule? Strictly underUNCLOS Art. 234, the applicable rule will be that of the domestic legislation ofthe relevant Arctic state.One can also suggest looking at other commentaries to the Polar Coderepresented in the foreign literature on international law.
In his work “The Futureof Arctic Marine Operations and Shipping Logistics”, B. Gunnarson points out thatthe Polar Code will “be used to guide polar states in developing legislation on thesafety of ships in ice and polar navigation, training of seafarers, requirements forship construction and polar classification as well as mandatory environmentalstandards for shipping.”310In view of the elaboration and adoption of the Polar Code, foreign scholarsmore broadly identify the issues of internationally coordinated regulation ofnavigation in the Arctic Ocean. Here, they focus on the “key” statement that the“Arctic maritime infrastructure is lacking in most of the region.”311 In support ofthis assertion, the author relies on two studies: the 2007 Canadian Arctic ShippingAssessment; and the already mentioned 2009 Arctic Council’s Arctic MarineShipping Assessment.
More specifically, foreign studies indicate the followingdeficiencies in the “maritime infrastructure” of the Arctic region.Firstly, it is the “inaccessibility and poor conditions of existing Arctic ports.”Special attention is drawn to the limited industrial and social infrastructure in theNorth-West part of Alaska.312 Secondly, studies note that such deficiencies arecharacteristic of the Russian Arctic coast as well, only the “deep-water port ofMurmansk” allows for adequate port services. One of the authors notes: “Someother ports in satisfactory condition are located in the Kara Sea, including the portof Dudinka”.
Let us note that the Dudinka port is not situated in the Kara Sea, nor310Gunnarsson B. Op. cit. P. 54.311Conference Report. Anchorage, Alaska. November 6-7, 2013. Ed. Brigham L.W. P. 3.312Gunnarsson B. Op.cit. P. 38-42.253on the Arctic Ocean coast, but on the Yenisei River and the entry of ships into thatport means losing time in transiting the Northeast Passage; there are no Russianports with developed port infrastructure which are situated further to the east, onthe coasts of the Laptev sea, the East Siberian Sea, the Chukchi Sea and the BeringSea, as the author correctly stated.313However, as noted, even if Russian ports along the Arctic coast had“provided better port services and equipment, still limitations as to the depths inthese ports would make these ports inaccessible for larger cargo ships sailing onthe NSR.”314 This drawback in the port infrastructure of the Russian Arctic coast isespecially evident, the analyst opines, against the backdrop of the appeal of usingthe Northeast Passage today given the melting of ice in its basins.
As the authornotes, the summer navigational period in the Northern Sea Route is now fivemonths, from July till November; and “it would be odd not to benefit from this forthe economic development of the Passage infrastructure, in the context of the legalpossibilities, including the ones reflected in the Polar Code”.315Based on this Chapter, I would like to proffer the following interimconclusions. Although the legal regime of the Polar regions – the Arctic andAntarctic – is traditionally viewed in Russian legal teachings in the context of theinternational law relating to territory rather than the international law of the sea,nevertheless, in light of the legal regime of navigation in the Arctic Ocean icywaters, the Polar Code adopted by the IMO is correctly qualified in the AngloAmerican doctrines as a source of the international law of the sea.
Its rules specifythe group of legal norms regulating relations between states and other internationallegal actors arising from navigation in the polar waters. The Polar Code offersinternational legal means of reacting to the key risks of navigation in the Polarwaters, from the standpoint of the structural safety of the vessel allowed by its stateof registration to sail in such waters, and in terms of providing for a complex of313Gunnarsson B. Op.cit. P.
49-50.314Ibid.315Ibid., P. 45.254measures to protect the maritime environment in such ecologically vulnerableareas. From 1 January 2017, both the Polar Code provisions and Art. 234 of theUNCLOS (on the special rights of the coastal state for regulating navigation in theice-covered areas of its EEZ) apply here. In that sense, Russia and Canada asStates with the longest Arctic coastline retain the right, based on that article ofUNCLOS, to regulate navigation in such areas, respectively, in the basins of theNorthern Sea Route and Northwest Passages. With such an important conceptual“reservation” I agree that the Polar Code’s positive effect is correctly seen byEnglish-language legal scholars primarily in the harmonization of rules onmaritime safety and environmental protection in navigating in marine areas in bothPolar regions.
Such an approach suggested in English language legal doctrinesobjectively corresponds to the long-term interests of all states in developing Arcticshipping, not just the interests of the Arctic ones.255CHAPTER 5. THE LEGAL REGIME OF THE BERING STRAIT (ASINTERPRETED BY RUSSIAN AND FOREIGN EXPERTS)Both Russian and English-language legal studies note the geopolitical andstrategic importance of the Bering Strait as the only natural passage from thePacific to the Arctic Ocean, as well as the Northern Atlantic and the northernPacific via the Northeast Passage.
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