диссертация (1169188), страница 63
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The clarification of the Bering Strait region’s legalregime means, first of all, doing it in the context of the increasing navigationcaused by environmental changes and the growth of commercial activity in theArctic. The Bering Strait, having an exceptional status as the “monopolist”connection between the Pacific and the Arctic Oceans, also provides an option fortrans-ocean shipping of goods and passengers alternative to travelling via the SuezCanal and the Panama Canal.357Both the Anglo-American and Russian doctrines classify the Bering Strait asan “Arctic strait”; but the former do not support the Russian lawyers’ propositionto the effect that “it is improper to routinely apply to the Arctic straits everyprovision of international law pertaining to other international straits.
There arepeculiarities of Arctic straits which demand specific approaches to the matters oftheir use.”358 Even though the stance of Russian lawyers is justified in the contextof Article 234 of the UNCLOS and the current ecological situation in the Arctic,outside of this context it is presumably correct to discuss the standalone legalregime of each specific Arctic strait (rather than of all “Arctic straits” takentogether).357Rothwell D. R. International Straits and Trans–Arctic Navigation // Ocean Development & International Law. –2012. – No.
43 – P. 272.358Maleev Yu.N., Sokirkin V.A. Arkticheskie prolivy kak vid mezhdunarodnykh prolivov sui generis [Arctic Straitsas Sui Generis International Straits] // Moscow Journal of International Law. – 2000. – No. 4. – P. 239.277As briefly discussed above, there are two islands in the Bering Strait region:the Big Diomede (Russia) and the Little Diomede (the US), as well as FairwayRock. That means that the term “the Bering Strait” constitutes four geographicallyexisting sea passages: 1) between mainland Russia and the island of Big Diomede;2) between the island of Big Diomede and the island of Little Diomede; 3) betweenthe island of Little Diomede and Fairway Rock; 4) between Fairway Rock andmainland USA.
Not all researchers of the Bering Strait take Fairway Rock intoaccount, which is not entirely correct from the legal standpoint; according toArticle 121 of the UNCLOS, rocks have a territorial sea of their own even thoughthey have no EEZ or continental shelf.359 Thus, the Australian lawyer D. Rothwellonly mentions three channels in his work:360 1) between mainland Russia and theisland of Big Diomede; 2) between mainland US and the island of Little Diomede;3) between the islands of Little Diomede and Big Diomede (about 2.5 nauticalmiles wide).
Here, that author mentions that the third channel is not wide enoughand therefore it is not used for international navigation. Accordingly, Rothwellconsiders only two channels of the strait to be intended for internationalnavigation.361 The width of each of these two passages (“channels”) is less than 24nm, meaning that the Bering Strait basin is blocked by inland sea areas and theterritorial seas of Russia and the US at the strait’s narrowest point.The term “Beringia” is defined in a number of international legal texts.According to the 26 May 2011 Joint Statement of the President of the United Statesof America and the President of the Russian Federation on Cooperation in theBering Strait Region, the parties “declare an intention to deepen cooperationbetween the United States of America and the Russian Federation in the cross359Berkman P.
A., Vylegzhanin A. N., Young O. R. Governing the Bering Strait Region: Current Status, EmergingIssues and Future // Ocean Development & International Law. – 2016. – V. 47. No. 2. – P. 189.360Three channels are also referred to in a rather authoritative international legal study The Law of the Sea and thePolar Regions Edited by Erik J. Molenaar, Alex G. Oude Elferink, and Donald R. Rothwell Leiden/Boston:Martinus Nijhoff, 2013.361Rothwell D. R.
International Straits and Trans–Arctic Navigation // Ocean Development & International Law. –2012. – № 43. – P. 273.278boundary Bering Strait region, including the expansion of interaction between thenational agencies that are responsible for the specially protected naturalterritories/areas of both countries in the State of Alaska and the ChukotkaAutonomous District, including their commitment to developing a dialogue withnative peoples to help determine the specific goals and methods for suchcooperation.”362In the 8 September 2012 Joint Statement of Foreign Minister Sergey Lavrovand Secretary of State Hillary Clinton on Cooperation in the Bering Strait Regionit is noted that the Bering Strait region is “an area of present-day cooperationbetween Russians and Americans” and that the rights of indigenous peoplesinhabiting the territories of Chukotka and Alaska require protection.363 Pursuant tothe Statement, the Minister and the Secretary of State agreed to continue workingon the creation of a “Transboundary Area of specially protected Beringian naturalterritory, in consultation with local and tribal governments, linking the proposedBeringia National Park in Chukotka with the Bering Land Bridge NationalPreserve and Cape Krusenstern National Monument in Alaska.” The agreement onthe proposed Transboundary Area of specially protected Beringian natural territorywas due to be concluded by 31 December 2012.
However, it failed to materialize.On 28 October 2013 the Draft Memorandum of Understanding between theGovernment of the United States of America and the Government of the RussianFederation Symbolically Linking National Parks in the Bering Strait Region (the“Draft Memorandum”) was prepared.364According to the Draft Memorandum, the governments of the twoneighbouring states call for protection of the cultural heritage of Chukotka andAlaska, and recognize the significance of the Bering Strait region; they note that362URL:http://iipdigital.usembassy.gov/st/russian/article/2011/05/20110526155335x0.5310894.html#axzz24MDX6CU7.(last accessed on: 4 October 2015).363URL: http://www.mid.ru/web/guest/maps/us/-/asset_publisher/unVXBbj4Z6e8/content/id/144298. (last accessedon: 4 October 2015).364URL: http://www.legis.state.ak.us/basis/get_documents.asp?session=28&docid=18090.
(last accessed on: 4October 2015).279the Bering Strait region is important to the economies of the U.S. and Russia,confirm the mutual interest of the two states in deepening the cooperation,particularly in the Bering Strait region; recognize the success of joint cooperationon preserving the cultural heritage of the indigenous population of the region;highlight the importance of protecting the rights of indigenous and other localinhabitants in Chukotka and Alaska and ensuring their access to natural resourcesin accordance with each state’s law; highlight the significance of the uniqueecosystems of Chukotka and Alaska in the Bering Strait region.
It is noted that thegovernments are conscious of the effects of human activities, climate change, andother environmental factors on the natural resources and cultural heritage of theBering Strait region.The Draft Memorandum defines the national authorities coordinating thecooperation of the neighbouring states in the aforementioned area: the U.S.National Park Service and the Ministry of Natural Resources and Environment ofthe Russian Federation.The geographical scope of cooperation within the Draft Memorandum isdefined as the Bering Strait region, which includes: the Beringia National Parklocated in the Russian Federation; the Bering Land Bridge National Preserve andCape Krusenstern National Monument located in the U.S.
Either government maychange the boundaries of the national parks, including their geographicalcoordinates. In case of such changes, a notification should be sent to the otherparty.The Draft Memorandum also stipulates the development of a joint actionplan that will be revised and updated as necessary. Each party intends to appointcoordinators to develop and coordinate the joint action plan, who should cooperatewith one another and promote interaction between the parties. Joint activities of theparties include exchanges of information and technical expertise concerningnatural and cultural resources, including study tours, internships, training courses,workshops, symposia, and joint research projects.280The document indicates that the governments take considerable interest inthe creation of an international park.
Earlier, in a 1990 report of a Soviet-Americanresearch group, there was a recommendation to create “an international parkconsisting of protected areas on both sides of the Bering Strait, in the USA and theUSSR. The group suggested that one of the options might be to form a singleinternational park. Such a specific legal model might contribute to sustainability ofthe life-being of indigenous peoples in Alaska and Chukotka.” 365 However, thissuggestion was not supported at treaty level.An alternative legal model – “the Beringia region” – was created within theShared Beringian Heritage Program, which is a part of the implementation of the1972 USSR-US Agreement on Cooperation in the Field of EnvironmentalProtection.
The program has been active since 1991. The program states thatBeringia is “the land and maritime area bounded on the west by the Lena River inRussia; on the east by the Mackenzie River in Canada; on the north by 72 degreesnorth latitude in the Chukchi Sea; and on the south by the tip of the KamchatkaPeninsula.”366 In this instance, the term “Beringia” is not dissimilar to the term “theBering Strait region.” It is noted that the region is renowned for its rich history andis considered to be cultural and natural heritage, which “provides unparalleledopportunities for a complex study of both earth and human history.” 367 Thedeclared goals of the program are as follows: “1.
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