диссертация (1169188), страница 81
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V.42. Winter, 1998. P. 75-89.356the 1975 Agreement is that “[t]he Contracting Parties agree to promote cooperation on a basis of reciprocity and within the framework of their nationallegislation, concerning practical problems in the matter of fisheries, and shallconsult each other on such problems, paying special attention to measures for theconservation and rational use of the living resources of the sea and to the coordination of scientific research on this subject.” The Contracting Parties shall also“[w]ithin the framework of their national legislation… conduct a mutual exchangeof information of fishing statistics and the results of fisheries research, and shallexchange experience on matters relative to the development of fisheries, fishingmethods, fish processing technology and methods of increasing fish stocks” (Art.1).
The 1976 Agreement provides that “[e]ach Contracting Party shall, inaccordance with the provisions stipulated below, give the fishing vessels of theother Contracting Party access to the fishery resources in the area beyond the limitof 12 nautical miles measured from the applicable baselines in which it is engagedin the management of stocks of fish and other living resources, including theirconservation, and the regulation of fishing” (Art. 1).
In the area referred to in Art.1 of the Agreement, “each Contracting Party shall each year establish, in anappropriate manner and subject to such adjustments as may be necessitated byunforeseen circumstances: a) The total allowable catch for individual species orcombinations of species, taking account of the interdependence of stocks, therecommendations of competent international organizations and other relevantfactors; b) After consultations, either within the Mixed Commission establishedunder the Agreement of 11 April 1975 between the Government of the USSR andthe Government of Norway on co-operation in the fishing industry or through othersuitable channels, quotas for the fishing vessels of the other Contracting Party,taking account of the need for rational management of living resources, fishingmethods, the traditional catch levels of the other Contracting Party and otherrelevant factors” (Art.
2).The 2010 Russia-Norway Treaty Concerning Maritime Delimitation andCooperation in the Barents Sea and the Arctic Ocean not only sets forth clear357boundaries of the sovereign rights and jurisdiction of Russia and Norway, but alsoprovides for the continuation of bilateral cooperation in the sphere of fisheries.Annex 1 to the Treaty provides: “[i]n the previously disputed area within 200nautical miles from the Norwegian or Russian mainland technical regulationsconcerning, in particular, mesh and minimum size of catches set by each of theParties for their fishing vessels shall apply for a transitional period of two yearsfrom the day of entry into force of the present Treaty.
Total allowable catches,mutual quotas of catches and other regulatory measures for fishing shall continueto be negotiated within the Norwegian-Russian Joint Fisheries Commission inaccordance with the Agreements referred to in Article 1 of the present Annex. TheNorwegian-Russian Joint Fisheries Commission shall continue to considerimproved monitoring and control measures with respect to jointly managed fishstocks in accordance with the Agreements referred to in Article 1 of the presentAnnex.” The parties have thus long agreed that the bioresources of the Barents andNorwegian Seas are the joint stock of Russia and Norway.
The joint article onRussia-Norway governance in the Barents Sea written by a good confirmation ofsimilar doctrinal approaches to the status of the Barents Sea.469The Russian-Danish-Greenland cooperation in fisheries is carried outwithin the intergovernmental Agreement between the Government of the RussianFederation, on the one hand, and the Government of the Kingdom of Denmark andthe Local Government of Greenland, on the other hand, on Mutual Relations in theSphere of Fisheries between the Russian Federation and Greenland of 1992.
Toachieve the aims of the Agreement, it provides for bilateral consultations to discussthe progress of performance of the obligations of the parties set forth by theAgreement. Pursuant to Art. 3, “each Party shall annually define, subject toadjustments for unforeseen circumstances, as well as the requirements for rationalmanagement of fish resources within its fisheries jurisdiction: а) the total permittedtake of certain stocks or complexes of stocks subject to the existing objectivescientific data, taking into account their interdependence, the recommendations of469ODIL.
2017. Dec. 1. P. 11-47.358the respective international organisations and other relevant factors; b) uponconsultations between the Parties, quotas for fishing vessels of the other Party, aswell as areas and terms for using such quotas… Each Party shall establish suchmeasures as it deems necessary to ensure rational management, conservation andregulation of fishing within its fisheries jurisdiction. Any such measures may notcreate impediments for the use of quotas referred to herein.”As to the legal regime of biological resources of the superjacent waters, noneof the five Arctic states currently has the legal possibility to combat unregulatedfishing by non-Arctic states beyond their 200-mile EEZs in the Arctic, on its own.Such unregulated fishing may not only cause economic harm to the coastal Arcticstates, but also undermine the emerging bioresource base in these areas.
There is aneed for regional arrangements not only between the five Arctic coastal states toconserve fish stocks in the Central Arctic Region.These five states are objectively interested in cooperating to eradicate illegal(unregulated) fishing in this area of the Arctic Ocean, beyond their 200-mile EEZs;to put any fishing activities in the area under their control; to ensure compliancewith their environmental laws.
Unregulated fishing in this area would impairbioresources within their 200-mile EEZs. Consequently, they primarily need aregional arrangement to exclude unregulated fishing in the Central Arctic Region,that is, formally, a high seas “enclave”, albeit largely ice-covered. Perhaps, herethe five Arctic States considered as the precedent of creation of a regionalmechanism for the conservation of fish stocks in the high seas enclave in thecentral Bering Sea.
And indeed the initial drafting of the future multilateralConvention on the Conservation of Fish Stocks in the Central Arctic Ocean waslikely made the specialists of Russia, the US and Canada, on “non-paper”(unofficial) basis.As already noted, the maritime areas falling under the national jurisdictionof coastal Arctic states and stretching for up to 200 nm from the baselines, “close”the Central Arctic Region, a significant part of which is still covered with ice yearround, on all sides. Today, the majority of legal scholars believe that that area has359the status of the high seas, although that had for a long time been denied in thepredominant international legal doctrine of Canada and the USSR.
At the sametime, sea vessels – of both Arctic and non-Arctic states – cannot get into theCentral Arctic Region other than by crossing the EEZ of one of the five coastalArctic states. At present, this circumstance, due to the geographical andgeopolitical characteristic of the Arctic, has no practical relevance: the CentralArctic Region largely consists of a mass of ice. But the situation may change as itthaws.470The legal regime of marine living resources in this area – just like in anyother high seas area – is, without doubt, defined primarily by the respectiveprovisions of the UNCLOS.
Thus, Section 2 of Part VII of UNCLOS governsrelations of states on the conservation and management of the living resources ofthe high seas, as well as cooperation between states interested in fishing there.471UNCLOS stipulates the legal rules on the conservation and use of living resourcesin the sea; and, the rules prescribing the rights and obligations of states to managespecific types of marine living resources.§ 3.
Thawing of ice in the central Arctic basin and scholarly legalrecommendationsProjections on the rapid melting of Arctic ice correspond to the projectionson the subsequent fall of temperatures in the region. But if such melting lasts foronly several decades, that would already signal the feasibility of specifying thelegal regime of bioresources in the Central Arctic Ocean or, as it is called inEnglish-language publications, in the “Arctic donut hole.” Specifically, there is aneed for creating a mechanism for preventing the negative impact for the coastalArctic states caused by the distant fishing vessels of non-Arctic states active in thisarea.
Indeed, unregulated fishing may cause even greater adverse impact on the470Joint Statement of Ministers on the Occasion of the first White House Arctic Science Ministerial. 28 September2016. Washington, DC, USA.471For more details, see: Vylegzhanin A.N. Morskie prirodnye resursy (mezhdunarodno-pravovoi rezhim) [MarineNatural Resources (International Legal Regime)]. М.: SOPR. 2001. P.
188-219.360ecosystem of the Central Arctic. Absent the requisite scientific knowledge andmonitoring, even relatively small-sized commercial fishing operations mayundermine the ecological integrity of the Arctic Ocean, which, in turn, will causenegative effects for the population of the Arctic, including its indigenousinhabitants.A special regional mechanism for the conservation of the fishing resourcesof the Central Arctic Ocean is already being formed, in view of the thawing of icementioned above and the inflow into the freed Arctic areas of the high seas of thevessels from non-Arctic states.
To ensure the efficiency of such new regionalorganisation, it should take into account the practice of those already in place.Each separate intergovernmental regional organisation for the management of fishstocks is working in a relatively unique political and legal environment.Nevertheless, as noted in a number of Anglo-American publications on the subject,there is a lot in common in terms of the factors affecting the performance of suchregional organisations (for instance, their dependence on the condition of themarine environment, stocks, the efficiency of their management; adoption as apolicy of the precautionary and ecosystem approaches to managing fish stocks; themaximization of cooperation at the interstate and private levels, the transparency ofmanagement of resources, etc.).
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