диссертация (1169188), страница 82
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Importantly, it is precisely the newintergovernmental regional regime of conservation of fish stocks that is beingcreated by the five Arctic coastal states that can become the most efficientmechanism for promoting the precautionary approach and ecosystem managementof bioresources in the Arctic region. The key element of such a mechanism is theprevention of unregulated, unaccountable, unlawful fishing in the Arctic Ocean.Given its specifics, the priority measure, it appears, is to conduct only regulatedfishing – exclusively in the 200-mile EEZs of the five Arctic coastal states.In weighing the prospects of creation of such a new international regionalregime for the conservation of bioresources of the Arctic, both the Arctic and nonArctic states should also consider the obligations they will accrue after it is created(primarily, ensuring protection of the marine environment, in conjunction with the361rational use of marine spaces of the Arctic for shipping the volume of which isincreasing).
Here, it is reasonable to discuss the general environmental issues in theCentral Arctic basin within the “Arctic 8” – that is, within the existing ArcticCouncil. But key issues of conservation and management of fishery resources inthe Arctic waters are not considered by the Arctic Council.§ 4.
New legal regimes of conserving and managing bioresources in theCentral Arctic: the doctrinal choice between the universal and regionalapproachesAlthough the global warming of the Earth’s climate remains an exclusivelyscientific hypothesis, nevertheless, the slow but steady thinning of the ice layer inthe Arctic caused, first and foremost, by the global circulation of the World Oceanwaters, is a major fact of recent years.
In light of this development, protection ofthe marine environment of the Arctic and the problem of preserving the region’sbiodiversity, without doubt, are gaining a new significance. There is the probabilityof the gradual growth in the scale of Arctic navigation, exploration andexploitation of mineral and energy resources, which, in turn, will considerablyincrease the danger of marine pollution and the negative impact on the biologicaldiversity of the Arctic.
Moreover, the reduction of the ice layer may result in theopening of new fishing grounds and make new types of commercial catch viable,which will create both new economic benefits and problems related to theirsustainable use.For this reason, scholars are increasingly frequently voicing proposals on theneed to form new international institutions, execute bilateral and multilateralagreements and conventions governing various marine commercial activities in theecologically vulnerable Arctic region. Naturally, this concern, first of all, zonesbeyond the national jurisdiction of coastal states, that is, the high seas areascovered by the respective freedoms envisaged in both the 1958 Convention on theHigh Seas and the UNCLOS. Some experts have long drawn attention to the factthat high seas areas are the last areas of the World Ocean where the evolution of362international legislation lags behind the development of commercial activities.
Intheir opinion, states may potentially enact strict regulations in any high seas areawith respect to military activities, marine industrial fishing for highly migratoryand straddling fish stocks, as well as intensify control over the environmentalimpact of exploitation and exploration of mineral and energy resources of deep-seaareas, the level of maritime pollution, measures to protect and conserve seamammals and anadromous species, etc.472It should be noted that specific and fragmented, “purpose-oriented”,international regimes of management and cooperation in the Arctic are wellestablished.
These are not only positive examples of such regimes in the past (theNorth Pacific Fur Seal Conventions of 1911 and 1957), but also successful actingregimes created by such international treaties as the Agreement on theConservation of Polar Bears (1973), the North American Deer Treaty (1987), andthe Paris Spitsbergen Treaty (1920), as well as a whole series of other multilateraland bilateral treaties and agreements.473 Their chief drawback, perhaps, is that theygenerally have a very narrow specialized scope and are based on clear observanceof the so-called zonal approach,474 stipulated in the UNCLOS.
As a result, themore environment-oriented the international law of the sea is becoming, the morefrequently one hears criticism of this sort of spatial division and that the priorityfocus on respecting the national sovereignty of the coastal state is inadequate in thecurrent conditions, while the international law of the sea needs to be supplementedwith a new comprehensive approach that must proceed from the internationalcommunity’s certain common interests that stand above the individual interests ofstates. Thus, that approach must, first, apply a fundamentally different “shared472J.M. Van Dyke.
International Governance and Stewardship of the High Seas and Its Resources \\ J.M. Van Dyke,D. Zaelke and G. Hewison (eds.). Freedom for the Seas in the 21st Century: Ocean Governance and EnvironmentalHarmony. – Washington, DC, Covelo, California, Island Press, 1993. – Р.
14-18.473For more details, see Polar Politics. Creating International Environmental Regimes. Ed. by Oran R. Young, GailOsherenko. – N.Y.: Cornell University Press, 1993; Oran Young. Creating Regimes. Arctic accords andInternational Governance. – N.Y.: Cornell University Press, 1998.474As is well-known, it is based on the division of the World Ocean into various jurisdiction zones differing by theextent of sovereignty exercised (territorial sea, EEZ, continental shelf, high seas), and the scope of freedom(freedoms of navigation, fishing, laying pipelines, etc.).363use” scheme for the areas and resources of the World Ocean, to take account of theinterests of all members of the international community, with emphasis oninternational cooperation.
Second, it should rest on the understanding of theintegrity of this or that marine ecosystem, that is, disregard any state/conventionalboundaries dividing it.Different options for regimes of managing the Arctic region with a view toprotect the marine environment and biodiversity beyond national jurisdiction of theArctic states are already in place and are actively promoted by various countries,scientists and scholars and environmental organisations.
The chief maxim of theseconcepts is that development of efficient management of the rapidly changingArctic region is only possible by recognizing the waters of the Central Arctic as asort of international space that will not be claimed by any state.475 However, theforms and methods of bringing that international management to life differconsiderably.Thus, some environmental organisations advocate the idea of attaching tothe polar regions (the Arctic and Antarctica) the status of the so-called “WorldPark”, which implies a prohibition not only of any military and economic activities(navigation, fishing, extraction of oil and gas), but also of scientific research thatmay also adversely affect the marine environment (e.g., studies of deep-water areaswith their vulnerable genetic resources).
This sort of concept, essentially analogousto the Antarctic Treaty, was endorsed by the European Parliament that put forwarda substantiation of the need to adopt “an international treaty for the protection ofthe Arctic.”476 It is quite natural that such radical proposals are opposed by theArctic states in the first place, as they view the Arctic as an area of vitalimportance for such States from the military, strategic and resource perspectives.
It475Paul Arthur Berkman and Oran R. Young. Governance and Environmental Change in the Arctic Ocean //Science.17April2009.Vol.324.No.5925.P.339-340(http://www.bren.ucsb.edu/news/documents/Berkman_Young_Science.pdf).476EuropeanParliamentresolutionof9October2008on(http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-20080474+0+DOC+XML+V0//EN).Arcticgovernance364is not by coincidence that the Ilulissat Declaration 477 has confirmed theinapplicability of the idea to develop a new international legal regime for theArctic.An even more ultra-radical approach is based on the application of theoutdated concept of the common heritage of mankind (created during the cold war)to all living resources and spaces of the World Ocean beyond national jurisdiction,including, therefore, the Central Arctic.
However, that approach does not considerthat within UNCLOS, only one supranational body was created – the UNInternational Seabed Authority that regulates the exploitation of non-livingresources of the International Seabed Area. No other body was created to regulateinterstate relations concerning the use of the expanses and resources of the WorldOcean beyond national jurisdiction.
Nevertheless, some experts have long pushedfor the creation of such a body to be concerned with the World Ocean as a whole,as well as the integration of ocean policies and environmental issues.478 Thus, therehave been attempts to form an Environmental Security Council within the UN; vestnew powers in the UN Trusteeship Council that has completed its decolonizationmission, in terms of imposing on it the functions of a custodian and trustee of thecommon heritage of mankind; create the International Environment Organisationthat would include UNEP and implement uniform environmental standards,including in the sphere of protection of the marine environment.479 Evidently, thecreation of such an institution vested with supranational authority covering theentire World Ocean is most likely an issue of the distant future, which will at leastrequire the consent of the majority of states and would not be applicable to theArctic as a management regime without the consensus of all five Arctic coastalstates; otherwise, it would not be legitimate.477The Ilulissat Declaration.
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