диссертация (1169188), страница 59
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There are no exceptions from theright of transit passage through international straits for vessels that pose a potentialthreat to the environment, including nuclear-powered ones.330 Any research orsurvey activities may be carried out by foreign vessels only with priorauthorization of the states bordering straits (Article 40 of the 1982 UNCLOS).To promote safe navigation, states bordering straits may establish sea lanesand prescribe traffic separation schemes which must follow the generally acceptedinternational rules.Being states bordering the Bering Strait, Russia and the US may adopt lawsand regulations on transit passage. Such matters may include safety of navigation329Oppenheim’s International Law.
V. 1. Peace. Introd. and Part 1 / R. Jennings, A. Watts (Eds.). – 9th ed. –London: Longman, 1996. – P. 634.330Anashkin V.M. Mezhdunarodno–pravovye problemy atomnogo sudokhodstva [International Legal Issues ofNuclear-Powered Navigation]. – L.: Izd–vo Leningr. un–ta, 1987. – P. 92. [in Russian].261and regulation of maritime traffic; pollution (the discharge of oil, oily wastes andother noxious substances); fishing, including requirements to the stowage offishing gear; contravention of customs, fiscal, immigration or sanitary laws andregulations of states bordering straits. At the same time, such laws and regulationsmust not breach or impair the right of transit passage (Article 42 of the UNCLOS).Part III of the UNCLOS (dedicated, once again, to the legal regime of straitsused for international navigation) does not confine submarines to moving on thesurface, as stipulated in Part II of the UNCLOS for transit passage of submarinesthrough straits used for international navigation.As the Arctic Ocean’s accessibility grows, so does the importance of itsPacific entry point — the Bering Strait.In 2011, the Agreement on Cooperation on Aeronautical and MaritimeSearch and Rescue in the Arctic was signed by representatives of the eight Arcticstates at the biennial Arctic Council Ministerial meeting.
The scope of theagreement includes the Bering Strait. In 2013, the Arctic States signed theAgreement on Cooperation on Marine Oil Pollution Preparedness and Response inthe Arctic. In 2017, the Arctic States concluded the Agreement on EnhancingInternational Arctic Scientific Cooperation which is also applicable to the BeringStrait.331Anglo-American legal researchers correctly consider the Bering Strait to beone of the so-called “chokepoints” of navigation. The special significance of theBering Strait for the doctrine is explained by the fact that it connects the Pacificand Arctic Oceans, thus serving as the transportation alternative to the worldwidemaritime routes running through the Suez Canal and the Panama Canal.
AnAustralian professor of law even designates the Bering Strait as “the next Panamachannel”, whereas the six commercial ports in the Bering Strait region (three in the331P.Berkman,A.Vylegzhanin,O.Young.ApplicationandInterpretationoftheAgreement on EnhancingInternational Arctic Scientific Cooperation./ Moscow Journal of International Law.
№ 3. 2017. P. 6-17.262US and three in Russia), according to him, support the potential increase ofcommercial navigation in that Arctic region.332Issues of fact and law are thoroughly discussed in the English-languageinternational legal literature. Indeed, the Bering Strait hosts two islands – the BigDiomede Island (Russia) and the Little Diomede Island (the US) – as well asFairway Rock.Nevertheless, not all Anglo-American researchers of the Bering Strait takeFairway Rock into account, which is not entirely correct from the legal standpoint,as according to Article 121 of the UNCLOS rocks have a territorial sea of theirown.333In greater detail, the legal regime of the Bering Strait described above ischaracterized by the following: 1) Russia has territorial sea adjacent to theChukchi Peninsula and the island of Big Diomede; 2) the US has territorial seaadjacent to the Alaska Peninsula, the island of Little Diomede and Fairway Rock.The distance between the Russian island of Big Diomede and the US island ofLittle Diomede is approximately two nm.
It is there that the state border betweenthe US and the Russian Federation lies which overlaps with the delimitation linedetermined by the 1867 Russo-American Alaska Treaty of Cession and the 1990USSR-US. Maritime Boundary Agreement. The distance between the island ofLittle Diomede and Fairway Rock is 7.8 nm. Due to the existence of the twonamed islands and the rock, there are actually four geographical sea passages(“channels”), together forming the legal notion of the “Bering Strait”: 1) betweenmainland Russia and the island of Big Diomede; 2) between the island of BigDiomede and the island of Little Diomede; 3) between the island of Little Diomedeand Fairway Rock; 4) between Fairway Rock and the mainland US. It should be332Rothwell D. R.
International Straits and Trans–Arctic Navigation // Ocean Development & International Law. –2012. – № 43 – P. 272.333For more details see Berkman P. A., Vylegzhanin A. N., Young O. R. Governing the Bering Strait Region:Current Status, Emerging Issues and Future // Ocean Development & International Law. – 2016. – V.
47. No. 2. – P.189.263noted in this context that the influential Dutch lawyer’s description of the BeringStrait as “three navigational channels” (instead of four) is thus erroneous.334It was noted earlier that the unique political, legal, and geographicalsignificance of the Bering Strait makes it the only natural passage between theArctic and the Pacific Oceans and in the opposite direction. The Bering Strait isused by vessels taking the Northeast Passage – along the coast of Russia – as wellas those taking the Northwest Passage – along the Canadian Arctic archipelago, i.e.the two principal sea routes connecting the Atlantic and the Pacific Oceans via theArctic.The Bering Strait connects the Arctic Region with the growing Asianmarket, including the economic infrastructure of China, Japan, and South Korea.335The route from the port of Rotterdam (the Netherlands) to the port of Yokohama(Japan) via the Northeast Passage, with the Bering Strait as its easternmost point, is4,500 nautical miles shorter than the route via the Suez Canal, the Gulf of Aden, orthe Strait of Malacca.336As already observed, the hypothetical closure of the Bering Strait by thestates bordering it (Russia and the US) would also mean the cessation of vesselpassage from the Bering Sea into the Arctic Ocean.
The legal grounds for suchclosure, as noted, may only lie in the area of international environmental law, asaccording to WWF, the Bering Strait is characterized by “high risks of navigation(due to its narrowness and complicated ice conditions), as well as theenvironmentally vulnerable natural area that is highly sensitive to negative334The Law of the Sea and the Polar Regions. Interactions between Global and Regional Regimes. Ed. by Erik J.Molenaar, A.G.
Oude Elferink and D.R. Rothwell. Martinus Nijhoff Publishers. Leiden. Boston. 2013. P. 384–385.The same mistake is made by another authoritative Australian lawyer: “In the middle of the Strait are two Islands –Big Diomede (Russia) and Little Diomede (USA).), effectively creating three navigational channels.” Donald R.Rothwell. The United States and Arctic Straits. The Northwest Passage and the Bering Strait. International Law andPolicies of the Arctic Ocean. Essays in Honour of D. Pharand. Leiden. 2015. P.
174.335Rothwell D. R. International Straits and Trans–Arctic Navigation // Ocean Development & International Law.2012. – 43 – P. 272.336Wanerman R. Freezing out noncompliant ships: why the Arctic Council must enforce the Polar Code // WesternReserve Journal of International Law. 2015. V. 47. P. 435.264impact.” 337 Together, these factors justify the need to take steps to minimizenavigational risks and clarify its international legal regime.338The border between the territory of Russia and the territory of the US wasdefined according to the Convention between the United States of America and HisMajesty the Emperor of Russia, for the Cession of the Russian Possessions inNorth America to the United States, Concluded at Washington, March 30, 1867(short title — the Convention of the Cession of Alaska).
The border runs across theBering Strait. According to the 1867 Convention: “The western limit within whichthe territories and dominion conveyed are contained passes through a point inBehring's Straits on the parallel of sixty-five degrees thirty minutes north latitude,at its intersection by the meridian which passes midway between the islands ofKrusenstern… and the island of Ratmanoff… and proceeds due north withoutlimitation, into the same Frozen Ocean.” I should stress: within the meaning of the1867 Convention, Russia was ceding to the U.S.
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