диссертация (1169188), страница 75
Текст из файла (страница 75)
We are aware that fish stocks in the Arctic Oceanmay occur both within areas under the fisheries jurisdiction of the coastal Statesand in the high seas portion of the central Arctic Ocean, including straddling fishstocks.”Thus, the document initially underlines the key role of the coastal Arcticstates in preventing unregulated fishing in the high seas enclave in the ArcticOcean.The Preamble of the document concludes:“We therefore intend to implement, in the single high seas portion of thecentral Arctic Ocean that is entirely surrounded by waters under the fisheriesjurisdiction of Canada, the Kingdom of Denmark, the Kingdom of Norway, theRussian Federation and the United States of America, the following interimmeasures:“We will authorize our vessels to conduct commercial fishing in the highseas area only pursuant to one or more regional or subregional fisheriesmanagement organizations or arrangements that are or may be established tomanage such fishing in accordance with recognized international standards.“We will establish a joint program of scientific research with the aim ofimproving understanding of the ecosystems of this area and promote cooperationwith relevant scientific bodies, including but not limited to the InternationalCouncil for the Exploration of the Sea (ICES) and the North Pacific MarineScience Organization (PICES).“We will promote compliance with these interim measures and with therelevant international law, including by coordinating our monitoring, control andsurveillance activities in this area.“We will ensure that any non-commercial fishing in this area does notundermine the purpose of the interim measures, is based on scientific advice and ismonitored, and that data obtained through any such fishing is shared.”332Especially important is that the five coastal Arctic States repeated wordsfrom their 2008 Ilulissat Declaration “that an extensive international legalframework applies to the Arctic Ocean.”While not describing this “extensive” legal framework, the document refersto such legal instruments as the 1985 United Nations Agreement Relating to theImplementation of the Provisions of the United Nations Convention on the Law ofthe Sea of 10 December 1982 relating to the Conservation and Management ofStraddling Fish Stocks and Highly Migratory Fish Stocks.In October 2018, in Ilulissat (Greenland), based on that Declaration, a newAgreement to Prevent Unregulated Fishing in the Central Arctic Ocean was signed,but this time, by “5 + 5” states: five Arctic coastal states plus another five stateswith special interests in the region.Accordingly, these documents should be construed in the general context ofthe legal regime of marine living resources.In international law scholarship, the general international legal regime ofmarine natural resources, the latter including fish and other living resources israther thoroughly studied, especially as regards the global level of regulation.437Many academic works are also dedicated to the analysis of the legal regime ofenvironmental protection of such living resources in the Arctic Region both on theuniversal and regional levels, including environmental protective measures setforth by the Arctic Council.438This Chapter of the Dissertation discusses the Anglo-American doctrineswhich are relevant to research of conservation, use and rational management of437See Ocean Yearbook.
Ed. E. M. Borgese and N. Ginsburg. Chicago and London. 1978. P. 38-113. (xvii+890).Brown E.D. The International Law of the Sea. Vol. I. Dartmouth. 1994. P. 140-154. See, e.g., Vylegzhanin A.N.Morskie prirodnye resursy (mezhdunarodno-pravovoi rezhim) [Marine Natural Resources (International LegalRegime)]. М.: Introduction by Academician of the Russian Academy of Sciences A.G. Granberg, 2001. P. 16-85.Vylegzhanin A.N., Zilanov V.K. Mezhdunarodno-pravovye osnovy upravleniya morskimi zhivymi resursami.Teoriya i dokumenty [International Legal Grounds for Managing Marine Living Resources.
Theory andDocuments]. М. 2000. P. 9-82.438See The Arctic in World Affairs. Ed. O.R. Young, J.D. Kim, Y.H. Kim. Honolulu, Hawaii, USA. 2014. P. 225250. Vylegzhanin A.N. Utochnenie predelov yurisdiktsii Rossii v Arktike na osnove obshchego mezhdunarodnogoprava [Specifying the Scope of Russia’s Jurisdiction in the Arctic Based on General International Law]//Mezhdunarodnye sudy: aktual’nye problemy mezhdunarodnogo prava: Mezhvuzovskii sbornik nauchnykh trudov[International Courts: Current Issues of International Law: Interuniversity Collected Works].
No. 2 (6). Ed.-in-ChiefG.V. Ignatenko, L.A. Lazutin. Yekaterinburg, 2010. P. 23-42.333bioresources in the high-latitude Arctic region beyond the 200-mile EEZs of thefive states whose coast opens to the Arctic Ocean, in the general context of thecurrent law of the sea and environmental law.439 This challenging and relativelynew topic calls for an extensive general theoretic part dedicated to the basicpremises of contemporary legal scholarship – on the notion of “management ofmarine living resources”; interpretation of the 1995 UN Fish Stocks Agreement; on“enclaves” of the high seas; on managing marine ecosystems; and on theprecautionary approach as it is applied to marine living resources.§ 1. Applicable general theoryAs was noted in the legal literature, under the influence of ideas synthesizingthe achievements of marine biology, mathematics and marine technology, in theearly 20th century, a Russian scientist F.I. Baranov developed the firstmathematical dependence model between fish stocks and fishing pressure.Subsequently, the mode of stock management proposed by F.I.
Baranov, wasmodified, including by the “biology” school (primarily by another Russianscientist, N.M. Knipovich).440 In its most simplified form, the management modelboils down to the following. Without fishing pressure on the stocks, in isolationfrom many natural factors (including fluctuations in the number of stocks due tosun, electromagnetic conditions, impact on the water environment), with thefeeding opportunities in the specified habitat, the stocks recover at an acceleratedpace at an early stage.
After they reach the maximum pace, the stocks keep439These five states are Russia, the U.S., Denmark (Greenland), and Norway. All of them have national legislationapplicable to their Arctic territories. Thus, for instance, the Fundamentals of State Policy of the Russian Federationin the Arctic until 2020 and further provide for the notion of the “Arctic Zone of the Russian Federation”, meaningthe part of the Arctic fully or partially covering the territories of the Republic of Sakha (Yakutia), the Murmanskand Arkhangelsk Regions, the Krasnoyarsk Krai, the Nenets, Yamalo-Nenets and Chukotka Autonomous Districts,defined by the decision of the State Commission with the Council of Ministers of the USSR for Arctic Affairs of 22April 1989, as well as the lands and islands referred to in the Resolution of the Presidium of the Central ExecutiveCommittee of the USSR dated 15 April 1926 “Declaring Lands and Islands in the Arctic Ocean: the Territory of theUSSR”, together with the adjacent internal sea waters, territorial sea, exclusive economic zone and continental shelfof the Russian Federation, where Russia exercises sovereign rights and jurisdiction in accordance with internationallaw.
On the interpretation of this notion see, e.g., Rossiiskaya Arktika. Spravochnik dlya gosudarstvennykhsluzhashchikh [The Russian Arctic: Manual for Civil Servants]. - М.: Drofa, 2001. P.13 et seq.440For more details, see Vylegzhanin A.N., Zilanov V.K. Mezhdunarodno-pravovye osnovy upravleniya morskimizhivymi resursami. Teoriya i dokumenty [International Legal Grounds for Managing Marine Living Resources.Theory and Documents]. М. 2000. P. 55-77.334growing, but the pace slows down, which is explained by the lack of feedingopportunities in the specified habitat. The optimal fishing theory put forward byF.I. Baranov, is based on regulated fishing of the stocks in the interval of growth ofthe stock replenishment nearing the “maximum stocks replenishment pace,” whichwould produce the maximum economic benefit. F.I. Baranov’s idea, laterdeveloped by many Russian and foreign scientists, was to manage stocks based onthe foregoing model, that is, to organize, by way of legal prescriptions, fishingefforts that would ensure maximum benefit.The first example of international legal approbation of the model ofmanagement of marine living resources justly drawn in the foreign legal literatureis the US and Canada’s 1923 Convention for the Preservation of the HalibutFishery of the Northern Pacific Ocean and Bering Sea.
The term “Conventionwaters” covered both the territorial waters of the US and Canada, and the high seashalibut habitat. Nationals and residents of the two countries were prohibited to fishhalibut in Convention waters, except as prescribed by the International PacificHalibut Commission in regulations designed to develop the stocks of halibut in theConvention waters “to those levels which will permit the maximum sustained yieldand to maintain the stocks at those levels pursuant to Article III of thisConvention.” The Commission, in line with those purposes, was obligated to“make such investigations as are necessary into the life history of the halibut in theConvention waters and shall publish a report of its activities and investigationsfrom time to time”, as well as implement, based on the results of its investigations,regulation of fishing, including to divide the Convention waters into areas;establish one or more open or closed seasons, as to each area; limit the size of thefish and the quantity of the catch to be taken from each area, as well as regulate theminimal size of the fish taken and the character of fishing appliances; set forth therules for issuance of fishing licenses, collection of statistical data, prohibitions ofdeparture of vessels from any port or place, to any area for halibut fishing, afterany date when in the judgment of the Commission the vessels which have departed335for that area prior to that date or which are known to be fishing in that area shallsuffice to catch the limit which shall have been set for that area (Art.
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