диссертация (1169188), страница 68
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402Therefore, both Russia and the US are entitled to rely on the norms of theUNCLOS on safety at sea and the regime of straits used for internationalnavigation. In this context, several important factors must be stressed.1. As already noted, even though the U.S. is not party to the UNCLOS, itofficially stated in a number of texts that it treats the UNCLOS provisions onnavigation regimes as international custom and thus considers itself a party to thisconventional regime.2.
UNCLOS Article 234 (on the particularities of the legal regime in icecovered areas) is sometimes treated as “contradictory” in legal literature: on theone hand, as several experts note, the Article implies that coastal states withaccess to ice-covered areas may regulate navigation in the said areas to decreasenegative impact on the environment (to clarify: it refers to the areas within 200miles of the EEZ); on the other hand, experts claim, it contradicts the other part of402For more details see Berkman P., Vylegzhanin A., Young O.
Op. cit. P. 192 et seq.297this Convention – on freedom of navigation within an EEZ. Therefore, as hasbeen noted , allegedly, there is no clear understanding what the delegations of theStates which negotiated this Convention implied by that statement, so thecontemporary international community “must reach the consensus on the issueson navigation in the Arctic seas.”403 This woeful dictum, however, may easily beexplained by the fact that the author, as demonstrated by the text of his paper andthe list of references cited, did not trouble himself to study the voluminousmaterials of the 3rd UN Conference on the Law of the Sea — one of the largestinternational conferences.
It was there that many compromise provisions of theUNCLOS were developed through arduous diplomatic and legal effort, includingArticle 234, which is noted, for example, in the Russian international lawliterature.404 There is no contradiction between Article 234 of the UNCLOS andthe principle of free navigation in the high seas (as applicable to an EEZaccording to UNCLOS Article 58): the relation between the two is that of lexspecialis and lex generalis.
Therefore, currently there are no reasons why Russiaand the US cannot apply Article 234 to the Bering Strait region within theirEEZs. At the same time, as noted, seasonal ice coverage in the region mightdecrease in the future, and therefore the question of Article 234’s applicability tothe Bering Strait region may need to be assessed differently.405The 1946 International Convention for the Regulation of WhalingIt has been noted above that the Bering Strait is a migration corridor forwhale populations, and that the multilateral 1946 Convention applies to theregion. Both the U.S.
and Russia have been parties to this Convention since itcame into force for both states on 10 November 1948. In the USSR, the primaryinstitution representing the state in the International Convention for the403Wanerman R. Freezing out noncompliant ships: why the Arctic Council must enforce the Polar Code // CaseWestern Reserve Journal of International Law.
– 2015. – V. 47. – P. 438.404Ivanov I.S., Vylegzhanin A.N. (Eds.). Arkticheskii region: problemy mezhdunarodnogo sotrudnichestva [TheArctic Region: Issues of International Cooperation]. In 3 vols. Vol. 3. Primenimye pravovye istochniki [ApplicableLaw]. М. 2013. P. 26 et seq.405Paul Arthur Berkman, Alexander N. Vylegzhanin & Oran R. Young. Governing the Bering Strait Region:Current Status, Emerging Issues and Future Options // Ocean Development & International Law. – 2016. – V.
47.No. 2. – P. 194.298Regulation of Whaling was the Ministry of the Fishing Industry; nowadaysRussia is represented by the Ministry of Natural Resources and Environment.406The Convention established the International Whaling Commission — aninternational organization that has the authority to encourage, recommend andorganize (if necessary) research concerning the assessment of whale conservationand regulation of whaling; collect and analyse statistics on the contemporaryconditions of whale migration and subsistence, as well as the influence ofwhaling on those conditions; study, assess and publish data regarding whale stockconservation methods.The mandate of the International Whaling Commission (IWC) includes thedevelopment of corresponding recommendations to member states of the IWCconcerning whale conservation and regulation of whaling. In the Annexes to theInternational Convention for the Regulation of Whaling member states of theIWC agree on quotas for aboriginal subsistence whaling (for the coastalcommunities of indigenous peoples) of bowhead whales in the Bering Sea, theChukchi Sea, and the Beaufort Sea.The 1946 Convention mentions that states may grant special permits to kill,take and treat whales for the purposes of scientific research.
States must report allauthorizations it has granted to the IWC.In 1974, the IWC introduced a ban on whaling covering all whale speciesexcept for the five most common ones. 1986 saw the IWC introduce a globalmoratorium on commercial whaling which Japan, Norway and the USSR 407formally objected to (later the USSR joined that general moratorium).In 1977, as a result of the IWC implementing a ban on bowhead whaling thatalso affected indigenous populations, the Inupiat and Siberian Yupik whalersformed an organization alternative to the IWC – the Alaska Eskimo Whaling406From 2 November 2015, Russia has been represented by Ms.
I.B. Fominykh. From 9 September 2014, the U.S.has been represented by Mr. R.F. Smith III. Official website of the International Whaling Commission. URL:https://iwc.int/members.407Brownlie’s Principles of Public International Law. James Crawford, SC, FBA.
8th edition. – Oxford UniversityPress. – 2012. – P. 326 (803).299Commission (the “AEWC”) to advocate traditional subsistence whaling rights ofAlaska’s coastal communities.408The AEWC is still active as a non-profit organization under US laws andperforms the following tasks: conservation of bowhead whales and their habitats;protection of aboriginal whaling by Alaskan indigenous peoples; preservation ofEskimo culture, traditions and industry associated with bowhead whales;promoting research concerning the assessment of bowhead whale stock.409Since 1977, the representatives of AEWC have been present at every annualconference of the IWC.
Their involvement led to the replacement of the total banon harvest of bowhead whales with a very low whaling quota for that species.However, the quota did not satisfy the indigenous peoples’ need for subsistence;the evaluation of their actual needs led to the subsequent increase of the quota.410There are eleven coastal whaling settlements in Alaska: Gambell, Savoonga,Wales, Little Diomede, Kivalina, Pt. Hope, Pt.
Lay, Wainwright, Barrow,Nuiqsut, Kaktovik. Wales and the island of Little Diomede are two of thesettlements that are situated on the Bering Strait coast (in 1992, Little Diomedewas formally recognized as a traditional whaling community).411Since 1981, the AEWC has legally managed the whale subsistence huntthrough a Cooperative Agreement with the National Oceanic and AtmosphericAdministration within the United States Department of Commerce (the“NOAA”).412 In 2013, the parties signed a new agreement valid until 31 March2019. The agreement’s goals are to conserve bowhead whale stocks, preserve theEskimo culture and promote relevant research.
To reach these goals, the NOAAand the AEWC cooperate on bowhead whale conservation. The NOAA isgenerally in charge of state management of marine bioresources, including408Official website of the AEWC. URL: http://www.aewc-alaska.com/About_Us.html.409Official website of the AEWC. URL: http://aewc-alaska.com/Our_Mission.html.410Official website of the AEWC. URL: http://www.aewc-alaska.com/About_Us.html.411Wales and the island of Little Diomede have the same population of around 170 inhabitants. Official website ofthe AEWC. URL: http://aewc–alaska.com/Our_Whaling_Villages.html.412Official website of the AEWC.
URL: http://www.aewc-alaska.com/About_Us.html.300whales. The AEWC, as already noted, is a local association representing theindigenous peoples of Alaska, engaged, among other things, in subsistencewhaling.Consequently, while the NOAA is designed to monitor US whale stocks ingeneral, the AEWC assists such monitoring in Alaska during aboriginalsubsistence whaling. For this purpose, the AEWC provides a relevant report tothe NOAA: within 30 days from the end of the spring whaling season, and within30 days from the end of the autumn whaling season. Among other things, thereport must contain the following information: the date and location of the kill,the length and sex of every killed whale, the length and sex of offspring (if any);the description of the circumstances of the kill.The whale hunting quota is set annually by the NOAA and the AEWC aspart of their conservation plan; whaling is then performed as per this plan.
Inparticular, the plan states that the products obtained as a result of traditionalwhaling must only be used for subsistence of the local indigenous communities.US practice in the area of legal harmonization of the energy industry’sinterests and national environmental interests deserves scholarly attention. Oiland gas industry enterprises and the AEWC make conflict avoidance agreements,as commercial activity and navigation in the region (for example, in the BeaufortSea and the Chukchi Sea) may clash with the whalers’ interests. The Chukchi Seais defined there as all the waters to the north and west of Alaska from Cape Princeof Wales to Point Barrow. Cape Prince of Wales is situated on Alaska’s westerncoast in close proximity to the Bering Strait.
The aforementioned agreementsbetween the AEWC and the petroleum industry set forth communicationprotocols between whaling vessels and oil and gas enterprises, including contactinformation; measures to prevent conflicts of interest; emergency arrangements;and conflict resolution procedures.
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