диссертация (1169188), страница 80
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2 of the Convention). The term “driftnet” isdefined as a net or a combination of nets which is more than 2.5 kilometres inlength used to catch fish by drifting (progressively moving in the sea due tocurrents and wind) on the surface of or in the water (Art. 1).The scope of the term “precautionary approach” was elaborated in the text ofthe 1995 Agreement for the Implementation of the Provisions of the UNCLOSrelating to the Conservation and Management of Straddling Fish Stocks andHighly Migratory Fish Stocks, discussed above.
First, the 1995 Agreementprovided for the obligation of states to apply the precautionary approach (Art. 5).Second, the extensive Art. 6 of the 1995 Agreement entitled “Application of theprecautionary approach” formulates its purpose – to protect the living marineresources and preserve the marine environment (para. 1); sets forth the obligationsof states to apply the precautionary approach uniformly, including to improvedecision-making in the sphere of conservation and management of fish stocks; toapply the “guidelines” set out in the Annex to the 1995 Agreement; take intoaccount the factors of uncertainties relating to the size and productivity of thestocks; to develop data collection and research programmes (para. 3); stipulates theobligations to establish catch limits and effort limits in case of new or exploratoryfisheries “until there are sufficient data to allow assessment of the impact of353fisheries on the long-term sustainability of the stocks” (para.
6); provides for theobligations of states not to exacerbate by their fisheries the negative impact on thestocks caused by some natural phenomenon (para. 7).Given existing doctrinal views and published official legal positions, one canconclude that all Arctic states believe that the UNCLOS provisions on superjacentwaters and on marine living resources (unlike the UNCLOS provisions on theseabed as the “common heritage of mankind”) reflect the effective internationalcustomary law, that is, are simultaneously the treaty and custom rules of theapplicable international law. Here, however, most authorities point to the need totake into account the geographical and other specifics of the ice and water areas ofthe Arctic Ocean; its special environmental vulnerability.465Management of marine living resources in internal sea waters, the territorialsea and the 200-mile EEZ of each of the five Arctic states is currently effected inaccordance with international law, including the applicable rules of UNCLOS, and,insofar as UNCLOS refers to it, the legislation of the respective state coastal to theArctic Ocean.
The Arctic Ocean is the smallest by area and depths. It is, so tospeak, surrounded by the coasts of the said five Arctic states. If they consent to it,some of the already created regional multilateral treaties and institutionalmechanisms based on them may apply here.They include, for instance, the 1992 Convention for the Protection of theMarine Environment of the North-East Atlantic (OSPAR Convention). Measures toprotect the marine environment under that convention apply to the entire area. It isdivided into several sub-areas, including sub-area 1 – the “Arctic Ocean.” Inreality, the name of the sub-area does not correspond to its specified coordinates:the Convention concerns only a part of that Ocean north of the Atlantic Ocean.This Convention has a number of Annexes: Annex I.
On the Prevention and465For instance, a Danish legal scholar poses the question of the error in deeming the UNCLOS the “basis ofregulation” of interstate relations connected with their activities in the Arctic Ocean. He notes that the legal regimesprovided by UNCLOS (regimes of the territorial sea; straits used for international navigation; archipelagic states;exclusive economic zones; continental shelf; the high seas) do not refer to such a specific case as the legal regime ofice, and that creates a problem for considering UNCLOS as a legal source applicable to the Arctic. (Dr. KaareBangert, Denmark. The Arctic Challenge: UNCLOS and a new climate generated Arctic regime?).354Elimination of Pollution from Land-Based Sources; Annex II. On the Preventionand Elimination of Pollution by Dumping or Incineration; Annex III.
On thePrevention and Elimination of Pollution from Offshore Sources; Annex IV. On theAssessment of the Quality of the Marine Environment.466Pursuant to the Convention for the International Council for the Explorationof the Sea, the Council has been functioning for over 100 years as a successfulinternational scientific organisation, coordinating national marine fisheries andecosystem studies in the North Atlantic. There is no prohibition for using thatmechanism in the seas adjacent to the Arctic, but nor are there any arguments tothe effect that those mechanisms are optimal for the Arctic.467According to the Convention on Multilateral Cooperation in North EastAtlantic Fisheries (establishing the North East Atlantic Fisheries Commission, theNEAFC), state parties regulate relations for the conservation and fishing of marinebioresources in the waters of the Atlantic and Arctic Oceans and adjacent seaslying north of 36° north latitude between the meridians of 42° western longitudeand 51° eastern longitude.
The Convention entered into force in 1982.There is an issue of applicability to Arctic waters of the Convention for theConservation of Salmon in the North Atlantic Ocean (entered into force in 1983,was ratified by the USSR in 1984, the NASCO Convention) – if, as a result of thewarming of such waters and subsequent migration, the habitat of such stocksmoves northward. The state parties to that Convention – Russia, Canada, Denmark(for the Faroe Islands and Greenland), the EU, Iceland, and the US – are, save forthe EU, members of the Arctic Council.
The NASCO Convention applies tosalmon stocks migrating beyond the fisheries jurisdiction of the coastal states ofthe Atlantic Ocean, north of 36 degrees north latitude along the entire migrationroute.466At http://www.ospar.org/.467See generally on the legal framework of managing living marine resources in Vylegzhanin A.N., Zilanov V.K.Mezhdunarodno-pravovye osnovy upravleniya morskimi zhivymi resursami. Teoriya i dokumenty [InternationalLegal Grounds for Managing Marine Living Resources. Theory and Documents]. М.
2000. 598 P.355§ 2. Doctrinal views on the legal bases of Russia’s bilateral cooperationwith other Arctic statesRussia–US fisheries cooperation is carried out based on the Agreementbetween the Government of the USSR and the Government of the USA on MutualFisheries Relations of 31 May 1988. That Agreement created the legal frameworkof the two states’ bilateral relations in the sphere of fisheries. These include issuesof scientific research, use and conservation of fish stocks in the Arctic and PacificOceans, interaction in the work of international fisheries organisations, etc. As tothe USSR-US Agreement on Maritime Delimitation in the Bering Sea dated 1 June1990, although it is not ratified and has not entered into force for Russia, it hasbeen performed by both parties “provisionally” for over 20 years, including in theArctic.468Russia-Canada fisheries cooperation is carried out based on theintergovernmental Agreement between the Government of the USSR and theGovernment of Canada on Mutual Fisheries Relations dated 1 May 1984 (theRussian Federation and Canada have affirmed its binding force).
The Agreement isassessed positively Anglo-American and Russian authors.Russia-Norway fisheries relations are based on a number of agreements:the 1975 Agreement between the Government of the USSR and the Government ofthe Kingdom of Norway on Cooperation in the Fishing Industry and the 1976Agreement between the Government of the USSR and the Government of theKingdom of Norway Concerning Mutual Relations in the Field of Fisheries, aswell as the Russian-Norway Treaty Concerning Maritime Delimitation andCooperation in the Barents Sea and the Arctic Ocean, signed in 2010.
Pursuant toAnnex 1 to the 2010 Treaty, the aforementioned Agreements “shall continue tostay in force for fifteen years after the entry into force of the present Treaty. Afterthe expiry of this term each of these Agreements shall remain in force forsuccessive six year terms, unless at least six months before the expiry of the sixyear term one Party notifies the other Party about its termination.” The essence of468Olson C.L., Selle R. W. US-Russian Boundary Giveaway. “Orbis”.
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