диссертация (1169188), страница 74
Текст из файла (страница 74)
URL: http://www.kremlin.ru/ref_notes/938.435URL: http://fish.gov.ru/press-tsentr/obzor-smi/7180-mid-otsenil-znachimost-soglasheniya-rf-i-ssha-o-borbe-sbrakonerstvom.326the Federal Customs Service in the Russian Federation; the National Oceanic andAtmospheric Administration and the US Coast Guard in the US.In order to implement the Agreement, the aforementioned competentauthorities of Russia and the US “cooperate in preventing, deterring andeliminating illegal, unreported and unregulated fishing and fishing-relatedactivities, including the import into the territory of one Party’s state of fish thatwere harvested as a result of illegal, unreported and unregulated fishing withinwaters under the jurisdiction of the other Party”; “cooperate in identifying suspectvessels and exchanging information about them, including through thecompilation of a list of suspect vessels”; exchange necessary information;“cooperate to the fullest extent possible in the investigation and adjudication ofcases related to illegal, unreported and unregulated fishing and fishing-relatedactivities”; “take necessary measures, in accordance with the Parties’ legislation,with respect to fish that originate in one Party’s state and that have been unloadedor are to be unloaded in a port of the other Party’s state in cases where there isevidence that such fish were harvested as a result of illegal, unreported orunregulated fishing or fishing-related activities provided by the Party where thefish originated”; “participate in working consultations and other types of jointactivities conducted by the Parties’ competent authorities.”International scientific workgroups have noted that the practicability of the2015 Agreement is not particularly significant, as the fish harvested illegally inthe seas under Russian jurisdiction in practice never reaches US ports and insteadis unloaded in the ports of Japan and other coastal Asian states.
In addition, theusage of terms restricting the subject of the 2015 Agreement is criticized: forexample, the term “fish” instead of the more inclusive term “marine livingresources”. This restriction questions the applicability of the 2015 Agreement tosedentary species illegally harvested on the Russian continental shelf, first andforemost species as valuable as the crab.327Chapter Conclusions.Unlike the term “the Bering Strait”, long known in the theory and practice ofinternational law, the term “the Bering Strait region” is a relatively new one bothfor Anglo-American and Russian international legal doctrines. It is expedient toview the Bering Strait region as a single object of regulation, first and foremostby international environmental law and the law of the sea.
The legalenvironmental issues arising as a result of increasing navigation and growingintensity of other commercial activity in the Arctic (in particular, the powerindustry) are closely interconnected in this region. Considering the preliminaryassessment of potential consequences of such activities for the local population ofthe Arctic states (in particular, their indigenous peoples), it is expedient to lookfor complex approaches with a view to reduce environmental and social riskswhen solving a particular economic or social issue in the Bering Strait region,within the framework of the relevant international law.The Bering Strait is a strategically important region, especially in the longterm, as it is the only strait connecting the Pacific and the Arctic Oceans.
Theprojected increase of navigation through this strait is tied to its status as the solenatural trans-ocean route from the Atlantic ports of Europe and the US to thePacific Ocean, via the Arctic, as well as the convenience of such navigation routefrom the economic standpoint, including lesser time spent on navigation. Theprospect of increasing shipping through the Bering Strait warrants deeper bilateralRussian-American cooperation in this particular area today, including theadoption of mutual or coordinated measures of reducing risks caused by the saidincrease in navigation.
Such measures may include the creation of ship reportingsystems, ship routeing, vessel traffic systems, ice patrol service and theimplementation of other means of increasing safety at sea.Anglo-Americanscholarlyworksofferadditionalmeasuresofenvironmental protection specifically for the Bering Strait region, first andforemost including the following directions: recognizing the Bering Strait regionas a World Heritage Site; designating the Bering Strait as a “special area”;328designating the Bering Strait as a “particularly sensitive sea area.” Most of thesesuggestions are supported by the Russian scientific community. Joint proposals ofRussia and the U.S. to the IMO regarding the aforementioned suggestions wouldbe well-received in the international community, including the IMO.
At the sametime, both Russia and the US hold a realistic view on both the positive and thenegative consequences of the increasing number and growing influence ofinternational organizations and international bureaucracy in the Arctic region,which, apart from presenting an ever-increasing burden upon national budgets,leads to a devaluation of traditional legal mechanisms of bilateral cooperationbetween states. Therefore, experts decline to make a positive prediction on Russiaand the US taking another step towards the internationalization of the BeringStrait region. Objectively, an extensive legal framework is applicable to theBering Strait region: first of all, international agreements (universal, regional andbilateral) as well as some other international legal sources.
Most of them areexamined in legal scholarship.One of the important issues for Russia and the US is whether or not they areallowed to exercise their rights according to UNCLOS Article 234 (on regulatingnavigation in ice-covered areas within the limits of the exclusive economic zone)while following the Polar Code, as the Bering Strait belongs to the jurisdiction ofthe Polar Code. In this context, the present work argues that Russia and the USretain their right, both under UNCLOS Article 234 and on historic legal grounds,to adopt national legislative measures of preventing marine pollution by vesselsgoing through the Bering Strait. In the context of the present research, it isconcluded that the 2008 Ilulissat Declaration signed by the five Arctic states maybe interpreted to mean that there is no present need to introduce a multilateralconvention governing the Bering Strait.
Regarding the 1990 USSR-US MaritimeBoundary Agreement which provides for delimitation of the longest maritimeboundary in the world, its ratification by Russia depends on the positiveconclusion of the Russian-American negotiations on fishing in the area. To offera legal projection, it is expected that the 1990 Agreement will eventually be329ratified by Russia for the following reasons: 1) both Russia and the US areinterested in clearly confirming the boundary line delineated in the 1867Convention; 2) the boundary line stipulated in the 1990 Agreement has beenhonoured by both neighbouring states for more than 25 years, which has hadcertain legal consequences.The idea of introducing a specialized Russian-American authority regulatingnavigation and environmental protection in the Bering Strait is unlikely to berealized in the nearest future.
Nevertheless, in the long term the idea is notconsidered as a legal utopia, considering the successful experience of SovietAmerican collaboration on banning the unregulated harvest of anadromousspecies in the high seas of North Pacific, on creating a legal framework to preventblast fishing in the high seas enclave surrounded by 200-mile EEZs of the USSRand the US in the Bering sea, as well as the positive experience of establishingand implementing the 1989 Bering Straits Regional Commission.If Russia and the US, as international legal actors, great powers, World WarII Allies who were leaders, together with Great Britain, in defining the UNCharter as the basis of contemporary international law, are able to separate theirbilateral connections on the exploration and development of the Arctic, includingthe Bering Strait region, from the competitive and problematic political relationsin other regions, it is realistic to expect a demand for many legal frameworks ofcooperation in the Bering Strait region listed in the present work, as the regionserves as the uniquely important link between the Arctic and the Pacific Oceans,between Eurasia and North America.330CHAPTER 6.
FOREIGN AND RUSSIAN DOCTRINAL VIEWS ON THELEGAL REGIME OF CONSERVATION AND RATIONALMANAGEMENT OF MARINE LIVING RESOURCES IN THE ARCTICOCEANThe topic that serves as a heading for this Chapter, has become especiallyrelevant after 16 July 2015, when the five Arctic states adopted an important legaldocument, namely, the Declaration Concerning the Prevention of UnregulatedHigh Seas Fishing in the Central Arctic Ocean. According to this document, it wasadopted after a meeting in Oslo, where Canada, the Kingdom of Denmark, theKingdom of Norway, the Russian Federation and the United States of Americacontinued discussions with a view to implement interim measures to preventunregulated fishing in the high seas portion of the central Arctic Ocean.The five Arctic coastal states into account that until recently ice hasgenerally covered a significant part of the Arctic Ocean waters both within andbeyond national jurisdiction.
So, the accent of the “Arctic-5” on measures toprevent unregulated fishing in the high seas of the Central Arctic Ocean isunderstandable: conservation measures – first; and management measures (whichimplies fishing) – only after the conservation regime is agreed upon.In this light it is strange that an English-speaking researcher’s chapter istitled “Arctic Fisheries Management”.436Dr. Molenaar’s emphasis not on conservation, but on management of arcticfisheries is not in harmony with the document agreed upon on 16 July 2015between the “Arctic 5”, which provides in particular:“We acknowledge that, due to climate change resulting in changes in icedistribution and related environmental phenomena, the marine ecosystems of theArctic Ocean are evolving and that the effects of these changes are poorlyunderstood. We note that the Arctic Ocean ecosystems until now have beenrelatively unexposed to human activities.436E.Molenaar.ArcticFisheriesManagement./TheLawoftheSeaandPolarRegions…P.243.331“We recognize the crucial role of healthy marine ecosystems and sustainablefisheries for food and nutrition.
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