диссертация (1169188), страница 85
Текст из файла (страница 85)
It has been494Achart describingthescopeoftheNEAFC’shttp://qsr2010.ospar.org/en/media/content_img/ch08/Fig_8_1_EN.gif.495operationcanbefoundhere:ARCTIC OCEAN Major Fishing Areas. ARCTIC SEA. Major Fishing Area 18 (http://www.fArctic Ocean.org/fishery/area/Area18/en).373demonstrated by now that absolutizing the freedom of fishing on the high seascarried a risk for the conservation of the marine biodiversity. Accordingly,doctrines universally confirm the rule to the effect that exercise of the freedoms ofthe high seas should be balanced with the need to protect living marineresources.496As far as the Central part of the Arctic is concerned, it is about, primarily,conserving the straddling fish stocks that may be fished by all states on the highseas, but in the Arctic states EEZs fall under their exclusive jurisdiction.
Fishingfor straddling stocks on the high seas directly affects their populations in the EEZ.Coastal states interested in developing this or that species in the high seas areaadjacent to their EEZ have traditionally believed that other states’ fishing vesselsentering that area violated the interests of their fishing fleet.497 It was to settle thosecontradictions that in 1995 the Agreement for the Implementation of the Provisionsof the UN Convention on the Law of the Sea of 1982 Relating to the Conservationand Management of Straddling Fish Stocks and Highly Migratory Fish Stocks wasadopted. Its chief premise implies that unregulated fishing may seriously impairmarine ecosystems, depleting certain species of marine living resources.Anglo-American doctrines (just as the Russian ones) note that one of theweaknesses of UNCLOS as a whole and the 1995 Agreement is, in particular, thatthese treaties’ provisions on the need for interstate cooperation for conserving theliving resources of the high seas are rather amorphous; for instance, the obligationto cooperate is not imperative, but depends somewhat on the good will of theparties.
The big question is whether, for example, the major fisheries nations of theAsia Pacific region will observe these unspecific treaty clauses in full in all of thehigh seas enclaves in the Arctic Ocean. The 2015 Declaration of the five Arcticcoastal states discussed above, and the relevant 2018 Agreement on Protection of496See Floit Catherine.
Reconsidering Freedom of the High Seas: Protection of Living Marine Resources on theHigh Seas \\ J.M. Van Dyke, D. Zaelke and G. Hewison (eds.), Freedom for the Seas in the 21st Century: OceanGovernance and Environmental Harmony. – Washington, DC, Covelo, California, Island Press, 1993. – P. 310-320.497See Burke William T. Unregulated high seas fishing and ocean governance. \\ J.M. Van Dyke, D. Zaelke and G.Hewison (eds.). Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony.
–Washington, DC, Covelo, California, Island Press, 1993. – Р. 235.374Unregulated Fishing in the Central Arctic Ocean based on it in the “5+5” formatmay assist in the efficient implementation of the basic provisions of the 1995 UNAgreement.
Moreover, the 2018 Agreement itself may be seen as a legaljustification of the need for measures to conserve stocks in the Central Arcticregion upon an agreed regional format.Further development of this legal model should be accompanied by intensivescientific studies of the fish stocks in the Arctic high seas.
Today, the RussianFederation, according to published data, is practically conducting no scientificresearch and has no scientific data on fish stocks in most of the Russian Arcticseas, except for the Barents and White Seas.498 In this regard, scholars raise thequestion of adopting a national programme for conducting such studies, as well asfor the construction of a full-fledged Russian science and research Arctic fleet.Creating such an efficient legal mechanism for research of marine living resourcesin the Arctic, their conservation and management, together with measures toprotect the Arctic marine environment, without doubt, falls in line with the nationalinterests of all “Arctic 5” states.I should note that Anglo-American doctrines propose options formechanisms to introduce international regimes for managing the maritime spacesand mineral and biological resources of the Arctic: global, regional, and bilateral.In doing so, scholars note that each has its pros and cons.
Strange as it may seem,they do not make an obvious emphasis on conservation of the Arctic marine livingresources, even in the Central Arctic Ocean. The most extreme projects for globalmanagement of the Arctic marine bioresources contradict not only the existingrules of the international law of the sea, but also the established regional status ofthe Arctic.
It is admitted here that applying such common legal mechanisms andthe ecosystem and precautionary approaches faces the need to take account of the498Glubokov A.I., Glubokovskii M.K. Mezhdunarodno pravovoe regulirovanie rybolovstva v arkticheskikhmoryakh [International Legal Regulation of Fishing in the Arctic Seas] // Arktika: zona mira i sotrudnichestva [TheArctic: a Zone for Peace and Cooperation]. Ed.-in-Chief A.V.
Zagorsky. – М.: IMEMO RAN, 2010. – P. 103-120(http://www.imemo.ru/ru/publ/2011/11011.pdf).375Arctic situation, the considerable expansion for these purposes of the scientificbase to support the need to adapt such approaches. Otherwise, they are likely to beused opportunistically for the political and legal goals of specific states or theirassociations (EU, NATO). On the other hand, meticulous analysis is required ofthe proposal to form a Marine Protected Area in the Arctic – for the entire region –beyond the 200-mile EEZs of the coastal Arctic states, not within regional context,but in the global legal framework.In sum, Anglo-American doctrines do not supply a substantiated analysis ofthe proposals to internationalize measures to protect the marine environment, letalone the marine living resources of the entire Arctic region.
A number of studiesshow that the most efficient approach, as it appears, is the regional approach toresolving the issues of conservation of the living marine resources of the Arctic. Inparticular, Arctic States continue their practice of executing bilateral and regionalagreements, first and foremost, among the “Arctic 5” states (including in thesphere of control of fisheries and protection of the marine environment andbiological diversity in the region) and also between each of them and specific nonArctic states. At the same time, according to the legal teachings, coastal ArcticStates still do not view as a challenge to the existing Arctic Law the newarrangements – between particular non-Arctic states on the status of the Arctic. Itseems that the prevailing opinion in legal teachings is that the priority need is totake account of the interests of the Arctic States in regulating interstate relationsfor the conservation and research of the marine living resources of the Arctic.
Sucha need requires their participation in any fisheries arrangement of non-Arctic statesthat affects the legal regime of fisheries in the Arctic Seas and, in a more generalcontext, the historically established status of the Arctic.376CHAPTER 7. FOREIGN STUDIES ON THE INTERNATIONAL LEGALASPECTS OF ENSURING ENVIRONMENTAL SECURITY IN THEARCTIC REGIONIn chapter 14 – “International Environmental Law” of his text-book Prof.Shaw notes the “initial conceptual problem posed for international law”, that is:“Traditionally, a state would only be responsible … for damage caused where itcould be clearly demonstrated that this resulted from its own unlawful activity.This has proved to be an inadequate framework for dealing with environmentalissues for a variety of reasons.”499 But, according to Russian legal literature, such aproblem lies in the Law of Responsibility not in the Environmental Law.In Russian scholarship, the term “International Environmental Law”, widelyused in the English-language conceptual framework of international law, istranslated as “International Ecological Law” (mezhdunarodnoye ekologicheskoyepravo) or “International Environment Protection Law” (mezhdunarodnoyeprirodoochrannoye pravo).
In Russian teachings of international law, the first termis preferred primarily because the second one tends to narrow down the subjectmatter of regulation. The term “environmental law”, according to foreign scholars,however, covers not only measures for the protection of the environment, but also,in the context of such protection, the regulation of relations concerning the use ofnatural resources generally.500Other English scholars divide between “the use of natural resources” and“the protection of the environment” dealing with these issues in differentchapters.501499M.Shaw.InternationalLaw.EighthEdition.CambridgeUniversityPress.2017.P.640.500Vylegzhanina E.E.
Osnovnye tendentsii razvitiya ekologicheskogo prava Evropeiskogo Soyuza [Key Trends ofDevelopment of EU Environmental Law]. Abstract to a diss. for a Doctor of Laws degree. Moscow. 2005. P. 4 etseq.501Brownlie’sPrinciplesofPublicInternationalLaw.8thEdition.ByJ.Crawford.OxfordUniversityPress.2012.P.333(Chapter14)andP.352(Chapter15).377§ 1. General overview of the international legal effects of climate changein the ArcticThe ice in the Arctic Ocean is thawing much quicker502 than anticipated justa few years ago in the most dynamic of scenarios set out in a 2011 report of theIntergovernmental Panel on Climate Change.503 The global consequences of thisprocess are as yet unclear. The reduction of ice cover may expand the economicpotential for business in the spheres of energy, sea transportation, fishing andtourism.
At the same time, intensified economic activity, taken together withclimate change and other forms of negative impact on the environment, represent agrave danger for the fragile northern nature, as well as the traditional habitat andlifestyles of indigenous peoples of the north.In light of climate change that entails changes of a social and economicnature, a question arises concerning forming such a legal regulation system thatwould make environmental standards and social factors the cornerstone ofexploitation of the natural resources of the Arctic. Overall, the legal framework ofprotecting the Arctic environment is well-researched in Russian scholarship504which, most importantly, produced the first unofficial incorporation of the basicinternational legal documents on the status of the Arctic, including environmentalones, in the world.505 At the same time, there has been no special analysis byRussian legal experts of the Anglo-American legal doctrine on this subject.American political and legal scholars believe that the current internationalregulation of activities in the Arctic is literally a “patchwork” of universal,regional, bilateral and domestic rules.
![](https://s.studizba.com/z.php?f=/templates/si/i/noavatar.png&w=100&h=100&t=1"){kind=avatar}
