диссертация (1169188), страница 61
Текст из файла (страница 61)
Moreover, suchstates must notify the vessels or the aircraft of any danger to navigation oroverflight in or over the strait of which they are aware (Article 44). The right oftransit passage through a strait used for international navigation naturally gives avessel flying a foreign flag more privileges than the right of innocent passage.Pursuant to Article 39 of the UNCLOS, while exercising the right of transitpassage, ships and aircraft shall proceed without delay through or over the strait,without any violation of the principles of international law embodied in the UNCharter, including: the principle of sovereign equality of states; abstention fromany threat or use of force against the territorial integrity or political independence345James Crawford, SC, FBA. Brownlie’s Principles of Public International Law.
8th edition. Oxford UniversityPress, 2012. P. 139.269of any state as well as in any other manner incompatible with the goals of theUnited Nations; non-interference in the internal affairs of any state.Ships and aircraft must refrain from “any activities other than thoseincident” to transit passage (Article 39(1)(c)). Moreover, ships must comply withuniversally accepted international rules, procedures and practices for safety at seaas well as those for the prevention, reduction and control of pollution from ships.The legal regime of transit passage through international straits does not providefor exceptions for vessels posing a potential threat to the environment, includingnuclear-powered ships.
Aircraft must observe the Rules of the Air established bythe International Civil Aviation Organization (ICAO) and “at all times monitor theradio frequency assigned by the competent internationally designated air trafficcontrol authority or the appropriate international distress radio frequency” (Article39(3)(b)). During transit passage, foreign ships may not carry out any research orsurvey activities without the prior authorization of the states bordering straits(Article 40).To promote safe navigation, states bordering straits may designate sea lanesand prescribe traffic separation schemes which must “conform to generallyaccepted international regulations” (Article 41). There is a significant clarificationapplicable to the state parties to the 1982 UNCLOS: prior to the introduction ofsuch traffic separation schemes and sea lanes, such states must refer the proposalsto the IMO to have such TSSs and lanes approved.
Other concerned states (notbordering the straits) may also participate in the elaboration of such proposals “inconsultation” with the IMO. Changing existing sea lanes and TSSs also requiresapproval by the IMO; however, the IMO has no right to adopt sea lanes or TSSsthat the state bordering strait does not agree with.
That said, the state borderingstrait must clearly indicate every adopted sea lane and traffic separation scheme onnaval charts “to which due publicity shall be given” (Article 41).States bordering straits may adopt laws and regulations relating to transitpassage (to which due publicity shall be given), such as the safety of navigationand regulation of maritime traffic; prevention of pollution (including the discharge270of oil, oily wastes and other noxious substances); fishing regulations, includingrequirements to the stowage of fishing gear; customs, fiscal, immigration orsanitary laws and regulations. At the same time, such laws and regulations mustnot deny, hamper or impair the right of transit passage (Article 42).The states whose ships pass through the strait, and Russia and the US, as thestates bordering the strait, must cooperate to establish and maintain navigationalequipment and safety aids, and to improve other means promoting internationalnavigation in the strait, as well as the prevention, reduction and control of pollutionfrom ships (Article 43).
In this case, Russia and the US (as states bordering theBering Strait) are entitled, for instance, to initiate an international treatyestablishing an international consortium dedicated to the installation andmaintenance of contemporary navigational safety tools.Part III of the UNCLOS does not oblige submarines to navigate on thesurface during transit passage (unlike Part II of the UNCLOS on innocent passagethrough the territorial sea).The Bering Strait, the southern part of the Chukchi Sea and the northernpart of the Bering Sea which it connects, along with the respective coastalmainland areas of the Chukchi Peninsula (Russia) and the Alaska Peninsula (theU.S.), constitute a geopolitical region whose importance grows as activity in theArctic increases. In the maritime parts of that region, favourable conditions for thedynamic growth of phytoplankton and zooplankton are maintained naturally, andmany species of fish inhabit the area.
The Bering Strait also serves as a migrationcorridor for hundreds of thousands of sea mammals. Of special importance is thefact that the coastal mainland areas bordering the Bering Strait, that is, theChukotka Peninsula (Russia) and the Alaska Peninsula (the U.S.), are inhabited bycoastal communities, some of which represent indigenous peoples whosesubsistence depends on traditional industries including those based on naturalmarine resources.Due to the well-known manifestation of global warming and consequentclimate changes in the Arctic, navigation and other commercial activity in the271Bering Strait region is becoming more accessible.
Analysts note, in particular, thatthe increase of navigation in the region is driven by the commencement ofhydrocarbon exploration in the Chukchi Sea and the Beaufort Sea, as well as theactivity of the Red Dog Mine in the north-west of Alaska, and that these factorsmight already be negatively impacting the region’s flora and fauna.346In the 2009 Arctic Marine Shipping Assessment produced by the ArcticCouncil, a separate section is dedicated to the Bering Strait region.
It describes thedifficulties that the region faces due to the ice, the usage of natural marineresources by the native peoples living on the coast, commercial fishing in theregion, mining for oil, gas and other mineral resources, tourism, maintenance ofnavigation aid, and coastal infrastructure, including charts. The report confirmsthat the Bering Strait, according to the stance of the states bordering it (Russia andthe US), is an international strait connecting the Pacific and Arctic Oceans; that thelatter, due to the sea ice reduction in the summer period, may see a considerableincrease of navigation, including maritime transportation from the oil and gasdeposits in the Chukchi Sea and the Beaufort Sea, as well as from the north-westcoast of Alaska.347 In this context, the report suggests improving the “governance”of the Bering Strait; in particular, it recommends taking preventive measuresagainst harmful impact, including on the environment.An interagency multidisciplinary research on the Bering Strait’s conditions,prepared by the employees of the US Coast Guard, the National Oceanic andAtmospheric Administration, the US National Weather Service and the US Fishand Wildlife Service, states that the Bering Strait is relatively “small in size” but“strategically important.” It is noted that there are approximately 9,000 nativeresidents (nationals of the US and Russia) living in the region; that among themthere are three distinct linguistic and cultural groups of Inuit and Yupik inhabitingAlaska and St.
Lawrence’s Island; that the subsistence of these peoples depends on346Arctic Marine Shipping Assessment 2009 Report. P. 106 //http://www.arctic.noaa.gov/detect/documents/AMSA_2009_Report_2nd_print.pdf.347NOAAURL: http://www.arctic.noaa.gov/detect/documents/AMSA_2009_Report_2nd_print.pdf.[website].URL:272their traditional industry, principally related to such natural marine resources as seamammals, including whales, fish, fowl, algae and shellfish.348In the article published in the Ocean Development and International LawJournal, a group of American specialists states: “The term ‘Bering Strait region’includes the marine area between North America and Asia from roughly 63 and 69north latitude; it extends from St.
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