диссертация (1169188), страница 83
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Arctic Ocean Conference Ilulissat,(http://www.norvegia.ru/nr/rdonlyres/945fb4d9-f4c7-4bcd-a5f957c91dce4a7b/94847/080525_arctic_ocean_conference_outcome.pdf).Greenland,27-29478May2008.Borgese E.M. The oceanic circle: Governing the seas as a global resource. – United Nations University Press,1998. – Р. 161-162.479Speth J.G., Haas P.M. Global Environmental Governance. – Wash.: Island Press, 2006. – Р. 134.365Nonetheless, some English-speaking researchers believe that suchmanagement regimes in the open areas of the World Ocean may be moreadvanced, oriented at achieving common goals, in the context of the globaltransboundary interdependence of states and given the increasing anthropogenicimpact on the biosphere of the World Ocean.
They do, however, also point out thatthe existing tendency of forming environmental boundaries in the World Oceanmay potentially result in the latter being thought of as prevailing over the politicalboundaries of states, which implies an international restriction and even controlover the activities of states in the high seas and “coastal zones”.480I believe that such a position is not entirely correct, since the “democraticnature” of such co-management and introducing any limitations on sovereignrights do not go well together and have a reverse, negative correlation. Theecological imperative generally cannot serve as an absolute justification of theneed to diminish national states’ rights, both for protecting the ecosystems of theWorld Ocean and for the sake of achieving such a theoretical state as “sustainabledevelopment.” And although the issues of protection of the marine environment,its resources and biodiversity are already causing the established international legalrules to transform, many of the existing and proposed forms of internationalcooperation in the Arctic have both their logical positive and negative aspects, aswell as significant limitations.
I will further discuss some of these aspects in moredetail.Thus, scholars name, as one of the most acceptable models of managementregime that could in theory apply to the Central Arctic as well, the OSPARConvention (Convention for the Protection of the Marine Environment of theNorth-East Atlantic).
First of all, its geographical scope extends to the marinebasins of the Greenland, Norwegian, and Barents Seas and a part of the ArcticOcean, and its participants include several Arctic five coastal states (Norway,Denmark), and also some other Arctic States (Sweden, Finland, Iceland). Second,480 480Kamto M. Droit international de la gouvernance. Editions A. Pedone. Paris.
2013. P. 20-38. (339 pp.).366its critical distinctive feature as compared to other similar regional agreements isthat it fully relies on the comprehensive approach, i.e. is aimed at coordinating thefrequently contradictory interests of economic development and protection of themarine environment, both in and outside the national jurisdiction of the stateparties.To this end, the OSPAR regime mandates regular monitoring of the state ofthe marine environment (including the level of eutrophication (organicenrichment), the dumping of hazardous, toxic and radioactive substances), thecondition of the atmosphere and stream runoffs; analysis of the measures to protectand conserve marine ecosystems and their biodiversity in the context of climatechange (including caused by the negative impact of both industrial fishing andnavigation and the oil and gas extraction industry); developing recommendationsto form networks of protected maritime areas.As we can see, one of the key provisions of this management regime is thepriority use of the ecosystem approach, that recognizes the interdependence of allresources (living and non-living) of this region, as well as the influence of all typesof marine economic activities on the state of these resources.
The legalapplicability of this approach to protect the marine environment of the CentralArctic does not seem to raise doubts. However, one must take account of certainlimitations inherent in the ecosystem approach.481First of all, it is often all too difficult to define the boundaries of ecosystemsand their scale, since marine living resources tend to change in time and move inspace. Despite the many years of practice of building hierarchies of large marineecosystems, 482 even the already distinguished ecosystems remain dynamic andconstantly changing entities.
Consequently, only meticulous marine scientificresearch can put a period on this matter. The existing scientific data, especially thatrelated to the Central Arctic, however it appears, is manifestly insufficient481The sharpest, most critical analysis of the legal applicability of the ecosystem approach can be found inOvlashchenko A.V., Pokrovskii I.F. K voprosu ob “ekologizatsii” sovremennogo mezhdunarodnogo morskogoprava [On the “Environmentalisation” of the Current International Law of the Sea] // Transportnoe pravo [TransportLaw]. – 2009.
– No. 2. – P. 31–37.482Large Marine Ecosystems of the World (http://www.lme.noaa.gov/).367unconditionally to take any specific measures to protect the marine environmentand its biodiversity. Secondly, there is as yet no common understanding betweenvarious participants of marine economic activities and coastal states as to what theecosystem approach is.
It is interpreted very differently depending on thecircumstances. As a result, one can speak of violations of specific premises of theecosystem approach only if these contradictions in its interpretation are eventuallyeliminated.Finally, the ecosystem approach proceeds from the need to apply the samemeasures to protect the marine environment and living resources of the sea both inthe national jurisdiction zones of the coastal states and beyond them within oneecosystem.
And this is where it considerably derogates from the basic principlesintroduced by UNCLOS and dividing the World Ocean into zones under differentjurisdiction; its implementation in practice requires a certain revision of thetraditional concept of national sovereignty.Moreover, in terms of the Central Arctic, the applicability of the ecosystemapproach faces irreconcilable contradictions. This is due to the fact that, at present,the deep-water regions of the Arctic Ocean are divided into two parts: the firstbeing the water areas in common use, subject to the traditional freedoms of thehigh seas; and the second covering the seabed and subsoil of deep-water areas,declared the common heritage of mankind and placed under the control of theInternational Seabed Authority.
Therefore, there obviously exist fundamentallydifferent management regimes of the water layer of the deep-water area and theseabed and subsoil resources. According to a western scholar, this division of theWorld Ocean areas already evidences a derogation from the principles of theecosystem approach which rests on regarding the seabed and water masses as asingle ecosystem requiring one management regime.
The only way to settle thisconflict is, in the opinion of the author, to extend the “common heritage ofmankind” also to the water column of the deep-water areas of the World Oceanand to equate their legal status.483 However, such a legal teaching seems counter483Vallega A. Sustainable Ocean Governance. A geographical perspective. – N.Y., L.: Routledge, 2001. – P. 223.368productive because it contains risks of undermining the entire existing system ofthe international law of the sea. Thus, I do not think that this suggestion will beacceptable to most states.In this context, some commentaries may be made concerning the AngloAmerican doctrines of the precautionary approach, which constitutes one of thebasic elements of the ecosystem approach.484 Given that modern knowledge of theWorld Ocean, marine ecosystems and the processes ongoing there is stillimperfect, the big question is discussed if it is possible to define the existence of aserious or irreversible risk that would mandate applying the precautionaryprinciple.
Applying the precautionary approach may result in limitations of theeconomic and industrial policy of states. In other words, implementation of theprecautionary approach may often be exclusively conjectural, political in nature,rather than scientifically supported.485One of the second basic underlying principle of the OSPAR Convention(considered above) is the need to form marine protected areas (MPA). Thisconcerns areas of the World Ocean, for which states set and apply uniformmeasures to conserve and restore the marine environment and to protect andconserve biodiversity and regulate all processes occurring within a singleecosystem.
From this point of view, forming an MPA is one of the important stepsto put the ecosystem approach to life. Within OSPAR, such areas have alreadybeen formed both within the 200-mile EEZs of the participating states and in highseas areas. In particular, an Ecologically and Biologically Significant Area (EBSA)has been established in the Central Arctic Ocean.486 As already mentioned above,some environmental organisations are insisting on a rather similar concept ofcreating a sort of preserve/World Park in the Central Arctic. However, this idea484Its essence can be formulated as follows: if there exist any potential risks, even the lack of any scientific proof ofthe causal link between an action and what follows it cannot be invoked to justify failure to adopt measures toprotect the environment.485For a discussion of the ecosystem and precautionary approaches see Guide to Sustainable Development andEnvironmental Policy.
(Eds. N. Mirovitskaya and W. Ascher. Duke University Press. Durham and London. 2001.Xxxix+391 pp.486See Charlie-Gibbs Marine Protected Area – Preserving Diversity in the High Seas. (http://charliegibbs.org/charlie/sites/all/themes/motion/images/Map-15-2011.png).369(just like other attempts of universal implementation of the ecosystem governanceand precautionary approaches) has its limitations and drawbacks.The creation of an MPA was launched back in the 1970s for the territorialsea zones; in the 1980s, it permeated the EEZs of coastal states; and in the 1990s,the question was raised for the first time of the feasibility of expanding MPAs byforming them not only in coastal zones, but also in the high seas. This process didnot leave out the Arctic region.
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