диссертация (1169188), страница 58
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From the 21st century on, the Bering Strait willserve as a vital economic artery between the growing economies of Asia (mostnotably, China, Japan, South Korea, and Singapore) and the states bordering on theBering Sea (Russia and the US), between those states and the Western Europeaneconomic region.316 The route from Rotterdam to Yokohama via the NortheastPassage is 4,500 nautical miles shorter than that via the Suez Canal, the Gulf ofAden, and the Strait of Malacca,317 which considerably decreases time and otherexpenses.The Bering Strait is the passage point for vessels travelling via the NortheastPassage and the Northwest Passage alike – the two principal sea routes connectingthe Pacific and the Atlantic Oceans via the Arctic.The closure of the Strait would make it impossible for vessels to enter theArctic Ocean through the Bering Sea.
Similar to the Strait of Malacca in thesouthern Pacific, the Bering Strait is a narrow passage characterized by “highrisks” during navigation (due to narrow waters and complicated ice conditions) aswell as the environmentally vulnerable natural territories and basins that are highlysensitive to negative impact.318 As foreign specialists note, this combination of316For more details see Rothwell D. R. International Straits and Trans-Arctic Navigation // Ocean Development &International Law. – 2012. – 43 – P.
272. Politiko–pravovoi styk Arktiki i Tikhogo okeana: mezhdistsiplinarnoeissledovanie statusa regiona Beringova proliva [Where Politics and Law Meet in the Arctic and the Pacific: AnInterdisciplinary Study of the Bering Strait Region]. M. IMI MGIMO MID Rossii. 2017. 127 pp.317Wanerman R. Freezing out noncompliant ships: why the Arctic Council must enforce the Polar Code // CaseWestern Reserve Journal of International Law.
– 2015. – V. 47. – P. 435.318Scientific Report “Problems of Environmental Safety in Expanding Navigation in the Bering Strait”// WWF:[website]. URL: http://www.wwf.ru/about/what_we_do/seas/shipping/doc3361/page1.256factors demands the clarification of the Bering Strait’s international legal regime toprevent regional conflicts and minimize navigational risks.319In legal literature (including English-language texts), it is suggested that thelegal norms currently regulating the activity and conduct of legal actors in theBering Strait region must be investigated closer both on national and internationallevels. Some sources call for further international cooperation with a view toclarify the Being Strait’s legal regime in the context of global warming (moreprecisely, in the context of the climatic trends in the Arctic leading toenvironmental changes and changes in navigational conditions in the Arcticpassages, including the Bering Strait); the convenience of a potential trilateralagreement on the Arctic straits (including the Bering Strait) between the US,Russia, and Canada is also discussed.320§1.
The definition of “Bering Strait”A strait is a sea passage that separates parts of mainland and connectsmaritime areas; an international strait is a strait between one part of the high seasor an EEZ and another part of the high seas or an EEZ, which is used forinternational navigation; international straits are worldwide sea routes open for freeor unimpeded navigation of vessels and overflight of aircraft of every state underinternational customs and international treaties. Both Russian and Englishlanguage international legal doctrines supply examples of such straits: the EnglishChannel, the Strait of Dover, the Strait of Gibraltar, the Singapore Strait, the Straitof Malacca, the Bab-el-Mandeb, the Strait of Hormuz, etc.321 The term “a straitused for international navigation” is not defined in the 1982 UNCLOS, but wasinterpreted by the International Court of Justice (ICJ) in the 1949 Corfu Channel319Owens J.
The Legal regime of the Bering Strait // China Oceans Law Review. – 2011. – No. 2. – P. 85–86.320Byers M. International Law and the Arctic. – Cambridge University Press, 2013. – P. 157.321Churchill R.R. Lowe A.V. The Law of the Sea. Manchester University Press. 1999. P. 102, 114–115.Mezhdunarodnoe pravo: uchebnik [International Law: A Textbook] / Vylegzhanin A.N. (Ed.-in-Chief) – 3rd rev.ed.– M.: Yurait, 2006.
– P. 199–202.257judgment in a dispute between the UK and Albania.322 In that judgment, the ICJproffered two criteria for classifying a strait as an international one. Thegeographical criterion mandates that the strait must connect two parts of the highseas; and the functional, that takes into consideration the intensity of navigationthrough the strait. The second criterion is not without doubt, as the ICJ questionedin its reasoning whether the intensity of navigation may serve as a criterion forclassifying a strait as a strait used for international navigation. In the UK-Albaniadispute, the ICJ took into consideration that the total number of vessels whichpassed through the strait and entered the port of Corfu in the period between April1, 1936, and December 31, 1937 was 2,884 vessels,323 flying the flags of differentstates: Albania, the UK, Greece, Italy, Romania, France, and Yugoslavia.
At thesame time, the British Navy “has regularly used this Channel for eighty years ormore, and that it has also been used by the navies of other States.”324 In view of theaforementioned factors, the ICJ concluded that the Corfu Channel “should beconsidered as belonging to the class of international highways through whichpassage cannot be prohibited by a coastal State in time of peace.”325 Englishlanguage international legal doctrine draws attention to this important statement ofthe Court:“As far as the rights of the coastal State and of third States in the CorfuChannel were concerned, the International Court held that, although the highdegree of tension in Greco-Albanian relations (Greece considered itself technicallyat war with Albania) would have justified the regulation of the passage of warshipsfor security reasons, passage through the strait could not actually be prohibited.Thus, either of the coastal States could, for example, have limited the number offoreign ships traversing its waters within the strait at any one time, or haveprohibited passage during hours of darkness, had such measures been necessary for322See Vylegzhanin A.N.
Vklad Mezhdunarodnogo Suda OON v progressivnoe razvitie morskogo prava (1949–1990) [The ICJ’s Contribution to the Progressive Development of the Law of the Sea (1949–1990)] // Stat’i pamyatiA.L. Kolodkina [Articles in Memoriam of A.L. Kolodkin]. М. 2013. – P.45–46.323Disregarding vessels that passed through the strait without entering the Corfu port.324ICJ Reports 1949. — P. 29.325Ibid.258the protection of its security in the prevailing circumstances. But neither State wasentitled to suspend passage through the strait completely, or to deny the existenceof the right of passage by subjecting it to a requirement of special authorization.The Corfu Channel case itself established that, as a matter of customary law,warships (and hence, a fortiori, merchant ships) had a right of innocent passagethrough international straits which could not be suspended by the coastal State.”326BothAnglo-AmericanandRussianinternationallegaldoctrinesunanimously stress the special role that Part III of the UNCLOS plays in thecontemporary legal regime of international straits.
Above all, it is noted that thelegal regime of straits used for international navigation is broadly defined by theUNCLOS (Part III), but it does not cover straits whose legal regime is regulated byspecial international conventions.In addition to that, Anglo-American doctrines draw attention to certainissues of interpretation and performance of the relevant international treaties on theregime of particular straits:“The Law of the Sea Convention rules on transit passage do not oust therules applicable under long-standing international conventions which regulatepassage through particular straits in whole or in part (LOSC, art. 35)).
Though thisprinciple is simply stated, the implications of its application are more complicated.For example, a treaty made in 1881 between Argentina and Chile provides that“the Straits of Magellan are neutralized forever, and free navigation is guaranteedto the flags of all nations”, but does not elaborate upon the nature of this right of“free navigation”. Similarly, the 1904 Anglo-French Declaration respecting Egyptand Morocco speaks of the securing of the “free passage of the Straits of Gibraltar”– although that declaration is arguably concerned only with the neutralization ofthe shore, and not with the regime of passage at all. Since “free navigation” and“free passage” were not terms of art clearly distinguished from, for example, nonsuspendable innocent passage, it seems that the best interpretation of the Law ofthe Sea Convention is that its straits regime would apply to these straits, there326Churchill R.R.
Lowe A.V. Op. cit. P. 103.259being no special rules on passage to oust it but that the neutrality obligations underthe special conventions would survive.“More difficult are conventions such as the 1857 Treaty of Copenhagen,stated by Sweden to fall within the scope of article 35 (c). That Treaty includes inrelation to the Baltic the provision that “No vessel shall henceforth, under anypretext whatsoever, be subjected, in its passage of the Sound or Belts, to anydetention or hindrance”.
Here the right of passage appears to be supplemented byimmunity from coastal State enforcement jurisdiction. In this case the effect wouldseem to be that rules in the Law of the Sea Convention dealing with, for example,the scope of coastal States’ legislative competence would be applicable, but thatthe rules on enforcement jurisdiction would not.”327There is no such special treaty with respect to the Bering Strait.
It isregulated by the general regime set forth by Part III of the UNCLOS.Does the Bering Strait fall under Article 36 of the UNCLOS, which statesthat the Convention does not apply to a strait used for international navigation ifthere exists an alternative route of similar convenience through the high seas or anEEZ? The legal implications of the existence of two islands and a rock in theBering Strait are discussed below.Article 37 of the UNCLOS determines the scope of the Transit Passagesection. A strait must be used for international navigation and be situated betweenone part of the high seas or an EEZ and another part of the high seas or an EEZ.Article 38 determines what constitutes transit passage.
Transit passage means apassage “for the purpose of continuous and expeditious transit of the strait betweenone part of the high seas or an EEZ and another part of the high seas or an EEZ.”Transit passage refers to the movement of foreign vessels through an internationalstrait with intent to enter the high seas or an EEZ. 328 States bordering on the straitare not allowed to impede transit passage. Moreover, such states must notify327Churchill R.R. Lowe A.V.
Op. cit. P. 114.328Brownlie’s Principles of Public International Law. James Crawford, SC, FBA. – 8th edition. – Oxford UniversityPress, 2012. – P. 139.260vessels or aircraft of any danger to navigation or overflight in or over the strait ofwhich they have knowledge (Article 44). In the English-language internationallegal doctrines the right of passage through a strait used for internationalnavigation has long been recognized as broader than that through a state’sterritorial waters.329Consequently, neither the Anglo-American legal teachings nor Russianinternational legal doctrines doubt the applicability of Part III of the UNCLOS,including its provisions on transit passage, to the Bering Strait. It should berecalled, in this context that during transit passage vessels and aircraft, accordingto article 38 of UNCLOS, must move expeditiously and observe international lawprinciples envisaged in the UN Charter.
I might add that international lawprinciples embodied in the Charter of the UN, are in any case obligatory as juscogens principles, independently of UNCLOS.Additionally, vessels and aircraft must refrain from any activity which is notcharacteristic of transit passage. Exceptions are allowed in cases of distress orforce majeure. Vessels must comply with the generally accepted internationalrules, procedures and practices related to safety at sea and for the prevention,reduction and control of pollution from ships.
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