диссертация (1169188), страница 76
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III(2)).The Convention was highly appreciated at the International TechnicalConference on the Conservation of the Living Resources of the Sea in 1955.441Thus, in the report of G.A. Danlon on the management of halibut resources in theNortheast Pacific, American and Canadian cooperation under the Convention wascalled “successful” and even “a model for management of coastal fisheries.” Thereport described the regulatory mechanisms provided by the US-CanadianConvention: comparison of statistical data on takes with the results of biologicalmonitoring (including observation of the migratory routes of halibut populations,assessment of their adult composition, the food chain, projections of changes of thebiomass), creation of an institutional mechanism (International HalibutCommission), adoption and enforcement of measures for monitoring stocks basedon the results of their biological monitoring, including annual closings of fishingseasons corresponding to the breeding period and area.442 The text of the finalreport adopted by the Conference, in setting out the positive aspects of theAmerican-Canadian legal practice, named the following: the science personnel ofthe Commission created according to the 1923 Convention, carried out research ofhalibut stocks and information on its fishing; the Commission was granted the rightto adopt regulatory measures on the basis of data collected and the final goal of theCommission’s measures was defined as reaching “the maximum sustainableyield.”443The final report of the 1955 International Technical Conference formulatedsome of the components of management of marine living resources: the obligationof states engaged in marine fisheries, to collect scientific data on the state ofbiological resources, statistical information on the fishing effort and volume of441Official Records of the UN General Assembly.
Ninth Session. Supplement No. 21 А(2890). P. 55 et seq.442See Materials of the International Conference for the Protection of Fish Stocks and Other Marine Animals. Vol.II М. 1957. P. 59.443Materials of the International Conference for the Protection of Fish Stocks and Other Marine Animals. Vol. II. P.129.336take; to conduct marine scientific studies, including to maintain an appropriatelevel of stable restoration of the stock; to overview and search for an adequatesolution to maritime problems due to the non-coinciding boundaries of the habitatsof large fishing stocks and the boundaries of the convention areas, etc.444The Report and other results of the Conference’s work influences the ILC’ssteps to codify the law of the sea.
At its 7th Session (in 1955), the ILC, as noted inits subsequent Report to the UN General Assembly, “took note of the report of theConference with great interest.”445Deputy ILC Chair, Garcia Amador (who acted as Deputy Conference Chairwhile being a representative of the Government of Cuba at the InternationalTechnical Conference in Rome), in light of the Conference Report, submitted thenew ILC Draft Articles on the Law of the Sea to replace those approved by the ILCin 1953. After a few amendments to G.
Amador’s draft, the ILC deemed itacceptable. I should note, first, that the ILC Report representatively quoted theReport of the 1955 International Technical Conference. Secondly, the ILC Reportused, for the first time, the term “management” with respect to marine livingresources.446 The ILC recognized, in particular, that the proposal on “building upor restoration of the productivity of resources” “may reflect problems and interestswhich deserve recognition in international law”. However, at this stage theCommission “refrained from making any concrete proposal.”447 Consequently, theprovisions on the management of marine living resources did not become part ofthe 1958 Geneva Conventions on the Law of the Sea.And only the UNCLOS finally established such provisions.
I should addhere that the UNCLOS terms “conservation” (both in English and French) and“management” (Fr., gestion) are used for natural resources, both living andminerals, while the UNCLOS term “protection” (both in English and French) is444Report of the International Technical Conference on the Conservation of the Living Resources of the Sea. Rome,18 April-10 May, 1955. A/Conf.10/6.445Yearbook of the International Law Commission.
1956. Vol. II. P. 287.446Ibid., P. 289-293.447Ibid., P. 290.337used for the marine environment. The term “protection of fisheries” (Russ., охранарыбных ресурсов), so frequently found in the Russian legislation, is not used inthe UNCLOS rules. In UNCLOS, the term “protection” is used in Articles 146 and155 concerning the protection of human life (Fr., protection de la vie humaine).Although UNCLOS grants to the coastal states wide powers to define the optimalway of managing the living resources in their EEZ, their setting knowinglyexcessive permissible catch, excessive exploitation of biological resources in theEEZ, turning it into lifeless waters, would constitute an international wrong; theUNCLOS-based right to exploit resources is balanced against UNCLOSobligations to conserve natural resources and manage them in accordance withinternational law.
Such obligations of the coastal state, pursuant to UNCLOS, areimperative.However, the meaning of the terms “management of marine resources”,“management of mineral resources”, “management of living resources”, used inUNCLOS, is not clearly defined. Professor A.N. Vylegzhanin’s analysis of therelevant international legal authorities allows to distinguish at least the followingcomponents of management of marine living resources: а) an ecologicalcomponent (i.e., taking into account the natural changes in the marine environmentcaused by manmade factors); b) evaluation of the stocks of marine biologicalresources, their monitoring; c) defining the volume of maximum sustainable takeand total permissible take; d) promoting optimal use of living resources, includingby way of analysis of economic parameters; e) regulation of fishing to ensure, firstand foremost, non-exhaustion of bioresources (including licensing; definingfishing seasons and areas; species that can be fished, etc.); f) creation of adequateinstitutional structures.448 There is a current trend for a coastal state to apply theUNCLOS provisions on natural resources to achieve their uniform management –not only in maritime areas under its sovereignty and jurisdiction, but also, in the448Vylegzhanin A.N.
Mezhdunarodno pravovye osnovy prirodoresursnoi deyatel’nosti gosudarstv v Mirovomokeane [International Legal Bases of Exploitation of Natural Resources by States in the World Ocean]. Abstractfrom the dissertation for the doctoral degree in legal sciences. М. Diplomatic Academy of the Ministry of ForeignAffairs of the USSR. 2002. P. 12-13.338case of certain resources, in the adjacent areas of the high seas. A regional trendhas formed in the evolution of international law for stricter regulations on theconservation of the biological resources of the World Ocean. The affected stateshave, by way of regional treaties (e.g., the Convention for the Conservation ofSalmon in the North Atlantic Ocean, the Convention for the Conservation ofAnadromous Stocks in the North Pacific Ocean), created regional mechanisms thatprohibit fishing of the respective bioresources on the high seas, ensure itsrationality, due accountability and regulation within 200 miles off the coast.
It isespecially true for straddling stocks, including in the high seas “enclaves.”Special attention should be drawn to doctrinal views on the applicability tothe Arctic waters of the Agreement for the Implementation of the Provisions of the1982 UNCLOS relating to the Conservation and Management of Straddling FishStocks and Highly Migratory Fish Stocks.449Both the English-language and Russian-language legal doctrines providethat international recognition of the notion of “straddling fish stocks” and itspractical value first came in the UN Convention on Straddling Fish Stocks andHighly Migratory Fish Stocks of 1993-1995 (hereinafter, the 1993-1995 UNConvention).
Underlining the importance of the Conference, its Chairman,Ambassador S.N. Nandan, noted the “pressing need” to conserve marine livingresources. “Unless we meet this challenge the marine living resources of the worldwill continue to be over-fished and the stocks will continue to be depleted.”450 Theessence of the problems considered in 1993-1995 at UN headquarters in New Yorkwas as follows.
There are many situations in the World Ocean where the habitat offish stocks is both in the 200-mile EEZ (we should be reminded that the coastalstate exercises sovereign rights here), and in the high seas area adjacent to thatzone (while the coastal state has no such rights to the resources of the area).Striving to use rationally the stocks, maintain fishing at a level that allows for a449For the Agreement of 4 December 1995 English is its authentic language (along with Russian, Arabic, Spanish,Chinese and French).450UN Conference on Straddling Stocks and HMS.
Closing Statement of Ambassador S.N. Nandan. New York. 30July 1993. P. 1 See, e.g., Akehurst’s Modern Introduction to International law. Seventh Revised Edition. by P.Malanczuk, Routledge. London and New York. 1997. P. 183-190.339quicker pace of reproduction, the coastal state limits itself in order to conserve thestocks, including by restricting its take in the zone, organizes the monitoring offishing, and conducts studies to assess the stocks. Costly measures undertaken bythe coastal state frequently turn out to be fruitless as a result of unregulated fishingof the same stocks in the adjacent high seas area.
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