диссертация (1169188), страница 79
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1(1)).As the second most important international treaty also providing for theecosystem approach, international legal literature names the already mentionedASEAN Agreement on the Conservation of Nature and Natural Resources 1985. Itrecognizes the “interdependence of living resources, between them and with othernatural resources, within ecosystems of which they are part,” provides for theobligation of the parties to take measures necessary to maintain essentialecological processes and life-support systems, to preserve genetic diversity, and toensure the sustainable utilization of harvested natural resources under theirjurisdiction in accordance with scientific principles and with a view to attaining thegoal of sustainable development (Art.1).
Article 3 of the Agreement provides for456D. Freestone. The Conservation of Marine Ecosystems under International Law. - In: International Law and theConservation of Biological Diversity. Eds.: M. Bowman and С. Redgwell. Kluwer Law International. London - TheHague - Boston. 1996. P. 100457Aligning himself with the opinion of other scholars, D. Freestone calls the regime of marine bioresources setforth by the 1980 Canberra Convention, as the “model of ecosystem approach.” D. Freestone.
Op. cit. P. 100.458For more details, see Golitsyn V.V. Antarktika: tendentsii razvitiya rezhima [Antarctica: Tendencies in theDevelopment of the Regime]. М. 1989. P. 231.348the obligation of the state parties to maintain, wherever possible, maximum geneticdiversity by taking action aimed at conserving “animal and plant species whetherterrestrial, marine and freshwater,” as well as “natural, terrestrial, freshwater andcoastal or marine habitats.”459 Although the doctrinal opinions of this Agreementare relevant, the Agreement itself does not apply to the Arctic: no opinion to thecontrary has been expressed either in the Anglo-American or the Russiandoctrines.The Rio Declaration on Environment and Development (1992) raises to theplanetary level the notion of ecosystem, by stipulating the term “the Earth’secosystem” in the text of Principle 7:“States shall cooperate in a spirit of global partnership to conserve, protectand restore the health and integrity of the Earth’s ecosystem.” This, presumably, isa sign that the international legal conscience is shifting from an anthropocentriclevel (centred, in terms of international legal motivation, on the interests of manand state) to a biosphere approach, where the core driver of international legalregulation is maintaining the sustainable life of the planet as a whole.The ecosystem approach is especially relevant for cases of underminingstocks in the so-called “enclaves” of the high seas – relatively small maritime areassurrounded by EEZs of coastal states on all sides.
An illustrative example ofsuccessful cooperation is that of two states, whose EEZs enclose the Bering Seaenclave of the high seas, Russia and the US Under their leadership, a multilateralmechanism of prevention of undermining bioresources has been created in thisportion of the high seas, whose area makes less than 8 percent of the total sea area,and the fisheries, prior to the mechanism, amounted to over 30 percent of the totaltake in the Bering Sea.The Central Arctic, surrounded on all sides by the 200-mile EEZs of the fiveArctic States, is also a huge high seas enclave, although with its specificcharacteristics (primarily that its substantial part is covered by perennial ice).459For more details, see D. Freestone.
Op. cit. P.101-102.349Natural resources-related problems in high seas enclaves are resolved by therespective coastal and other interested states differently: by way of bilateralagreements between a coastal state with every other interested state (NewZealand’s practice); by negotiating and performing a multilateral treaty through theefforts, first and foremost, of two coastal states (the above practice ofUSSR/Russia and the US in the Bering Sea enclave).
This experience hashighlighted certain common elements of the international legal regulation ofnatural resource-related problems of high seas enclaves: a) it is confirmed that thewater layer there has the status of the high seas, and the shelf areas making theenclave seabed are covered by the sovereign rights of the respective coastal statesor state (in the case of the Sea of Okhotsk and New Zealand enclaves); b)extraction of resources in the enclave area that is not regulated at the internationalor national level with the participation of coastal states (state) is qualified asinconsistent with current international law; c) a moratorium on fishing in anenclave is viewed as a rational measure.460A new trend in the development of the modern law of the sea is thecombination of measures for managing marine ecosystems and the precautionaryapproach.Analysis shows that unlike the above issues of delimitation and delineationof the Arctic shelf, the issue of interpretation of the international law rules on theprecautionary approach practically have no differences in the Anglo-American andRussian doctrines.Both proceed from the UNCLOS provision to the effect that a coastal state,among other things, is obliged, “taking into account the best scientific evidenceavailable to it,” to ensure that that the maintenance of the living resources in itsEEZ is not endangered by over-exploitation (Art.
61(2)). The Article does notdefine which data are “the best.” To protect the living resources of the high seas,states, in particular, shall “take measures which are designed, on the best scientificevidence available to the States concerned, to maintain or restore populations of460… Barents …Ocean Development and International Law350harvested species at levels which can produce the maximum sustainable yield”(Art. 119(1)).Taking account of the best scientific data available for measures to conserveresources and manage them is an international legal obligation. However, thesedata themselves may contain errors. The possibility of errors today is universallyrecognized; their causes include the mobility of marine living resources, thelimited natural scientific understanding of the planet’s ecosystems, lack of fundsallocated to assess the biomass of stocks, and other scientific marine studies, etc.Errors in scientific data result in errors in the conservation and managementmeasures taken.
Moreover, at times scientific data (e.g., on stocks in a new fishingarea) are lacking entirely. In such situations, to prevent undermining the livingresources, international legal sources formulate the precautionary principle.Though it is the international law of the sea that contains the mostthoroughly elaborated treaty rules on the precautionary approach today, the notionitself is used in other international authorities as well. Thus, in November 1990, theexecutive body of the International Chamber of Commerce adopted the BusinessCharter for Sustainable Development comprising 16 principles.461 One of them –Principle 10 – is called the “Precautionary approach”.
In the Charter text thisprinciple means that the burden of proof is on the operator when there are obviousand predictable (from the scientific point of view) reasons to believe that such aneconomic activity (of this operator) probably might cause irreparable damage.462Such a shift of the burden of proof, if supported by a court, is essential for theoutcome of a case, for instance, between a resource user and an environmentalorganisation, given the role of the principle of competition of the parties inlitigation.Subsequently, however, the meaning of the notion “precautionary principle”stepped beyond the limits of a narrow procedural principle, as confirmed by the461Environmental Management for Business. By Linda S.
Spedding. John Willy & Sons. 1996. P. 3 etc.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]. P. 10-12.462Environmental Management for Business. By Linda S. Spedding. John Willy & Sons. 1996. P. 330.351UN Conference on Environment and Development (1992) and the UN Conferenceon Straddling Fish Stocks and Highly Migratory Fish Stocks (1993 – 1995).According to Principle 15 of the Rio Declaration, to “protect theenvironment, the precautionary approach shall be widely applied by Statesaccording to their capabilities Where there are threats of serious or irreversibledamage, lack of full scientific certainty shall not be used as a reason for postponingcost-effective measures to prevent environmental degradation.” A similarprovision is also found in the Convention on Biological Diversity (ConventionPreamble, para.
9).From among the numerous materials of the UN Conference on StraddlingFish Stocks and Highly Migratory Fish Stocks discussing the precautionaryprinciple, the most comprehensive one, it appears, is the FAO’s document“Precautionary Approach to Fisheries with respect to Straddling Fish Stocks andHighly Migratory Fish Stocks.
It explains the need for the “precautionaryprinciple”: “the biomass of many important fish stocks is close to or even belowthe level that could produce the maximum sustainable yield (MSY), leading toresource instability and economic losses.” In the situation associated with highpotential risks, insufficient quantity and quality of information, the precautionaryapproach requires that the burden of scientific proof (for example, in the form ofenvironmental assessment) was on the side which intends to make profits from theexploitation natural resources.463 The higher the degree of uncertainty or risk, themore urgent is a necessity to be cautions.According to English doctrinal opinions, “FAO has indicated that thesustainability required by the environmental and development strategies impliesthat resources can be reduced by fishing to some agreed level at which theirexistence, that is, their reproductive capacity, is not threatened”.464UN General Assembly Resolution 44/225 of 25 December 1989 on largescale pelagic driftnet fishing expresses concern due to the potential adverse impact463The texts of environmental documents can be found, e.g., in International Environmental Law.
PrimaryMaterials. Ed. by M.R. Molitor. Kluwer. Deventer. Boston. 1991.464P.BirnieandA.Boyle.InternationallawandtheEnvironment.Oxford.1992.P.542[563pp.].352of applying these nets for anadromous and highly migratory species, sea mammalsand birds resting on the sea surface. Such a document was considered in legalliterature as a “radical application” of the precautionary approach: the Resolutionrecommends in this regard to introduce a moratorium on driftnet fishing by 30 July1992. That approach was confirmed by UN General Assembly Resolution 46/215of 20 December 1991, calling for measures against fishing by that method, on thebasis of the fact that the members of the international community reviewed the bestavailable scientific data and could not conclude that that practice had no seriousadverse effects.The 1989 Convention for the Prohibition of Fishing with Long Drift Nets inthe South Pacific prohibited any fisheries within the specified area of the SouthPacific with the use of driftnets (Art.
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