диссертация (1169188), страница 78
Текст из файла (страница 78)
In other words, that provision ofthe Agreement gives a priority to national rules adopted by the coastal state andalready applied by it: as ab initio source rules for negotiating international legalrules, the “compatible” ones. Furthermore, in negotiating compatible measures,states must, secondly, take account of “previously agreed measures established andapplied for the high seas in accordance with the Convention in respect of the samestocks by relevant coastal States and States fishing on the high seas” (Art. 7(2)(b)).Third, in defining compatible measures, states shall take into account “previouslyagreed measures established and applied in accordance with the Convention inrespect of the same stocks by a subregional or regional fisheries managementorganization or arrangement.” Such arrangements generally involve, as practiceshows, the coastal state as well.
Fourthly, according to the 1995 Agreement, statesneed to take into account “the biological unity and other biological characteristicsof the stocks and the relationships between the distribution of the stocks, the344fisheries and the geographical particularities of the region concerned, including theextent to which the stocks occur and are fished in areas under national jurisdiction”of the coastal state.
Fifthly, states shall take into account the dependence of thecoastal States and the States fishing on the high seas on the stocks concerned.Finally, in defining the compatible measures for the conservation and managementof stocks, states shall ensure that “such measures do not result in harmful impacton the living marine resources as a whole.” The role of the coastal state – even if itdoes not engage in fishing for such straddling stocks on the high seas – remainspivotal: it is no less important than the aggregate role of all states fishing suchstocks on the high seas.“Compatible measures” should be agreed upon in a treaty between thecoastal state and other states fishing the straddling stocks (as well as highlymigratory stocks) “within a reasonable period of time.” Prior to making a treaty oncompatible measures: а) any of the states concerned may invoke the procedures forthe settlement of disputes provided, if the reasonable period of time has expired;and, b) any of the states concerned may, via such procedures, seek prescription of“provisional arrangements,” if the parties failed to agree on such a provisionalarrangement of a practical nature themselves.The 1995 Agreement underscored the international legal importance of themeasures taken by the participants of regional treaties455 on marine bioresources.Where conservation and management measures are introduced based on suchregional arrangements, states engaged in fishing the stocks on the high seas and therespective coastal states are performing their duty to cooperate by joining aninternational organisation created under such a regional arrangement, or bybecoming parties to such an arrangement, or “or by agreeing to apply theconservation and management measures established by such organization orarrangement” (Art.
8(3)). But even that is not all; if a party to the 1995 Agreement455The existence of “regional agreements” is referred to in Art. 52-54 of the UN Charter. It is noted in the doctrinethat the existence of regional treaties, “whose scope by subjects and territory is limited by certain constraints, whichmay include, in particular, geographical factors, does not raise any doubts.” - Vysotskii A. F. Morskoi regionalizm(mezhdunarodno-pravovye problemy regional’nogo sotrudnichestva gosudarstv) [Maritime Regionalism(International Legal Issues of Regional Interstate Cooperation].
Kyiv. 1986. P. 136.345that is not party to a regional arrangement disagrees with the measures introducedbased on such an arrangement and does not apply them, that party is deprived ofaccess to the resources which make the subject matter of those measures:“Only those States which are members of such an organization orparticipants in such an arrangement, or which agree to apply the conservation andmanagement measures established by such organization or arrangement, shall haveaccess to the fishery resources to which those measures apply” (Art. 8(4)).Moreover, a non-party to a regional arrangement or a non-member of theorganisation created there under, “shall not authorize vessels flying its flag toengage in fishing operations for the straddling fish stocks or highly migratory fishstocks which are subject to the conservation and management measures establishedby such organization or arrangement” (Art.
17). The 1995 Agreement provides formeasures to develop interstate cooperation based on regional arrangements onmarine bioresources and the management of such arrangements (Art. 9-13).Both the Anglo-American and Russian international legal doctrines agree onthe following opinions based on the results of analysis of the 1995 Agreement:• Freedom of fishing on the high seas is becoming increasingly regulated.Strict prescriptions of regional treaties prohibiting fishing on particular species onthe high seas have been supplemented by the 1995 Agreement’s rather specificrestrictive conditions of fishing on the high seas on straddling stocks of any speciesof fish.• The 1995 Agreement has considerably increased the international legalvalue of the measures to conserve marine living resources and manage them basedon regional treaties on marine bioresources. Such measures have becomemandatory for any party to the 1995 Agreement, even if it is not party to a regionaltreaty.• The notion of straddling stocks is a reality affirmed at the UN Conferenceon Straddling Fish Stocks.
After the 1995 Agreement entered into force, the notionof “straddling fish stocks” entered existing international treaty law.346• The issues of the optimal regime of conservation and management ofstraddling fish stocks are resolved, in practice, through a combination of generalinternational legal rules on living marine resources (as lex generalis), and the rulesof special legal regulation (as lex specialis) in specific maritime areas.• Biologically the same stock in different situations may be qualified eitheras a straddling stock (Art.
63(2)), or as a shared (transzonal) stock (Art. 63(1)).• The 1995 Agreement is applicable to the largest Arctic high seas enclaveclosed by the 200-mile EEZs of the coastal Arctic states.I should add here that it appears that the 1995 Agreement has reinforced, ascompared with UNCLOS, the legal regime of conservation of the living resources ofthe World Ocean. That was achieved mainly through: а) creating obligations forthird states to conserve marine resources (in particular, making conservationmeasures taken by parties to a regional treaty legally binding for non-parties thatuse resources in the relevant area that fall under the said treaty); b) establishinginternationally compatible rules on the application of domestic natural resourcesconservation measures along with international measures; on taking into account,in negotiating the latter, the national ones; on how they apply if such an agreementis not reached; c) defining the scope of the precautionary principle (approach); d)setting a goal to conserve marine ecosystems.
These mechanisms of“reinforcement” may well be used by coastal Arctic states to conserve thestraddling and other fish stocks in the maritime areas of the Arctic adjacent to their200-mile EEZs, also taking into account the ecosystem approach to theconservation of marine living resources.Both the English-language and Russian-language doctrines proceed fromthe applicability to the Arctic of the international law provisions on theconservation of marine ecosystems.As noted by Professor D. Freestone, the conceptual foundations of theecosystem approach were laid down as early as the 1972 Stockholm Declaration,347the World Conservation Strategy and the World Charter for Nature.
456 Thesedocuments, however, did not define “ecosystem” or elaborate on the meaning ofecosystem management. The first international treaty that provided for theecosystem approach to the conservation of living natural resources is, as justlyobserved by D. Freestone, the Convention on the Conservation of Antarctic MarineLiving Resources made in Canberra in 1980,457 and that view of the Western legalscholar coincides with the opinion of Russian international lawyers.458Indeed, the Preamble to the 1980 Canberra Convention recognized “theimportance of safeguarding the environment and protecting the integrity of theecosystem of the seas surrounding Antarctica,” the need to expand “knowledge ofthe Antarctic marine ecosystem.” Unlike the 1959 Antarctic Treaty, whose scope isbetween the South Pole and 60 degrees south latitude, the 1980 CanberraConvention applies to this region and beyond, “to the Antarctic marine livingresources of the area between that latitude and the Antarctic Convergence whichforms part of the Antarctic marine ecosystem” (Art.
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