диссертация (1169188), страница 84
Текст из файла (страница 84)
The statistics kept by the Arctic Council state thatthe number of Arctic areas with protected status has risen from 1991 to 2010 by10.8%;487 in total, around 1,014 areas hold this status, their total area coveringaround 3.5 mln. sq.km. The key problem is that most of these areas are foundalong the coast, although they frequently cover a part of the coastal zone as well.MPA proper are relatively few in the Arctic.488 They include the EBSA OSPAR –the only Central Arctic Ocean area beyond 200-mile EEZs of the Arctic states.However, its formation in the high seas begs the question of its legitimacy.The reason is that under existing international law of the sea rules, thecreation of MPA is largely aimed at preventing pollution of the marineenvironment from various sources. Thus, different МРАs may be created onlyunder UNCLOS Art.
211 that allows coastal states to establish a special area intheir EEZ for preventing pollution from vessels; UNCLOS Art. 234, in areascovered with ice for most of the year and thus hazardous for year-round navigationin the EEZ; the International Convention for the Prevention of Pollution fromShips (MARPOL); the requirements of the IMO; and, the Montreal Guidelines forthe Protection of the Marine Environment against Pollution from Land-basedSources.489 Therefore, it is apparent that creation of an MPA beyond nationaljurisdiction is possible only under the MARPOL Convention and the IMO.487Circumpolar Protected Areas Monitoring.
Arctic Protected Areas Monitoring Scheme Background Paper. CAFFMonitoringSeriesReport.–No.5.–March2011(http://library.arcticportal.org/1519/1/ArcticProtectedAreas_Background_website2.pdf )488See:http://library.arcticportal.org/1393/1/CAFF_Map_No_58_Protected_Areas_in_the_Arctic_classed_after_their_IUCN_category__2010.pdf489For more details, see Yoshifumi Tanaka. A dual approach to ocean governance. The cases of zonal and integratedmanagement in the international law of the sea. – Bodmin: The Ashgate international law series, 2008. – P.169-182.370UNCLOS allows the establishment of “special areas” only within the coastalstate’s national jurisdiction, while the Montreal Guidelines are intended to combatmaritime pollution solely in the coastal zone.Special areas under MARPOL, designed to limit maritime pollution with oil,noxious liquid substances and garbage from ships, have been formed in theArabian, Baltic, Caribbean, Red, North, Mediterranean, and Black Seas, as well asin the Gulf of Aden and Antarctica.490 Particularly Sensitive Sea Areas (PSSA)designed for minimizing harm to the marine environment from navigation, havealso been formed under the aegis of the IMO in various areas of the WorldOcean,491 both within national jurisdiction zones and beyond (e.g., the entire BalticSea was declared a PSSA in 2005).
Considerable limitations in using them are dueto two reasons. Firstly, their narrow specialization implies that they cannot beextended to regulate any activity other than navigation. Secondly, one shall notethat creating an MPA where navigation would be banned altogether (as suggestedfor the Central Arctic) contradicts the basic principles both of the 1958 Conventionon the High Seas and UNCLOS. Here, it would be much more efficient to adoptthe Polar Code governing navigation policy in the Arctic waters.Forming MPAs beyond the 200-mile EEZs of the Arctic states is alsoarguably possible within the Convention on Biological Diversity. Its preparatoryworks have noted repeatedly that “there are increasing risks to biodiversity inmarine areas beyond national jurisdiction… there is an urgent need forinternational cooperation and action to improve conservation and sustainable useof biodiversity in marine areas beyond the limits of national jurisdiction, includingthe establishment of further marine protected areas consistent with internationallaw, and based on scientific information….”492490Seemapdescribingthecontent/uploads/2010/07/marpol.jpg).MARPOLspecial491areas,73/78(http://seafarer-spb.ru/wp-ParticularlySensitiveSea(http://www.imo.org/OurWork/Environment/PollutionPrevention/PSSAs/Pages/Default.aspx).492Areas.Decisions adopted by the Conference of the Parties to the Convention on Biological Diversity at its seventhmeeting.
UNEP/CBD/COP/7/21. – §29-31. – P. 164 (https://www.cbd.int/doc/decisions/COP-07-dec-en.pdf).371The chief drawback of this approach is that the task of protectingbiodiversity cannot be resolved separately from protecting the marine environmentwhere the biological species in question live. UN official statistics read here thatland-based pollution holds first place by the scope of harm (with a share of around80%) caused to the marine environment. Consequently, one naturally asks oneselfif an MPA to protect biodiversity is feasible, given that combatting the main sourceof maritime pollution falls beyond its scope and within the express competence ofcoastal states.Thus, creation of an МРА in the high seas areas faces considerabledifficulties that are due to the absence of any specific international law rules on thematter.
As yet, there is no universal treaty/agreement to legitimize that practice.Moreover, creation of an МРА often contradicts the basic high seas freedoms ofnavigation, freedom to lay underwater cables and pipelines, freedom of fishing andfreedom of scientific research. Art. 89 of UNCLOS refers to the unlawfulness ofsovereignty claims over the high seas, while creating an MPA on the high seasdoes effectively amount to creating a certain “closed” area in the zone that canbelong to no one state.493Given that the problem of protection and conservation of the marineenvironment in the Central Arctic cannot be solved without conscious efforts bythe five Arctic states, the hypothetical formation of any forms of MPA can be doneonly subject to their unanimous support.
Application of some regional agreedformat for a unified policy in the sphere of protection of the marine environment ofthe Central Arctic is more likely. Moreover, the historical priority of the Arcticfive in conducting scientific research in the Arctic gives them grounds to make anindependent decision as to the need for that step. The bulk of scientific knowledgeon the Arctic, accumulated for decades, can play the role of evidence both of thelegality and the unfeasibility of creating an МРА.493See Yoshifumi Tanaka.
A dual approach to ocean governance. The cases of zonal and integrated management inthe international law of the sea. – Bodmin: The Ashgate international law series, 2008. – P.198-204.372The OSPAR Convention regime, albeit not aimed at regulating fishing in theNorth Atlantic, is nevertheless directly related to the activities of the North EastAtlantic Fisheries Commission (NEAFC), that regulates fishing, including in thebasins of the Arctic Ocean seas (the Norwegian, Greenland and Barents Seas).494The high seas part of the Arctic Ocean, however (the Kara, Laptev, East Siberian,Chukchi, Beaufort and Baffin Seas) remains one of the few areas of the WorldOcean where no supranational regulation of fisheries has been introduced.495 Theprospect of even further reduction of the ice layer, including based on the fact thatthe year 2012 may break the 2007-2008 record, by the extent of release of theArctic of ice, raises the question of introducing preventive measures to excludeunlawful, unreported and unregulated (UUU) fishing in this high seas area.
Thereis a possibility that in view of warming of climate in the Arctic region, the numbersof commercially harvested species (Greenland halibut, Arctic cod, capelin,flounder) in both the Kara and Chukchi Sea will increase, inevitably attracting thefishing fleets of various countries. This is why the legal documents of Arctic statessetting a moratorium on fishing in the high seas area of the Arctic Ocean, asdiscussed in the beginning of this Chapter, are exceptionally important. CoastalArctic states will certainly prevent unregulated fishing on the high seas in theArctic Ocean (i.e., beyond their 200-mile zones).
Introducing specifically, regionaland bilateral regimes of managing fish stocks in the Arctic Ocean waters is fullylegally justified.The task of conserving living marine resources on the high seas wasformulated back in the 1958 Convention on Fishing and Conservation of theLiving Resources of the High Seas. It declared fishing on the high seas aninalienable right of any state, but emphasized that such fishing may negativelyaffect the living marine resources. UNCLOS in Art. 116 confirmed the existence ofthe special “interests” of coastal state in fishing on the high seas.
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