диссертация (1169188), страница 88
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TheEuropean Union and the Arctic Region. (2008) (http://eur-lex.europa.eu/LexUriSserv/386- acknowledge that there already exists a body of general norms andstandards pertaining to international fisheries arising from international agreementsand other instruments, including relevant UNGA resolutions;- affirm that those norms and standards apply in the Arctic as they doelsewhere;- declare that they will not conduct new commercial fisheries or expandexisting commercial fisheries in the Arctic until they have undertaken adequateassessments of the potential impact of such fisheries on target and non-targetspecies, on the marine ecosystem(s) as a whole, on the subsistence needs ofindigenous communities and have developed conservation and managementmeasures to ensure that such fisheries are sustainable;- develop new multilateral mechanisms for conserving and managing futureArctic fisheries, including a possible Arctic Regional Fisheries ManagementOrganization(s).525As a result of such international efforts, on 3 October 2018, in Ilulissat(Greenland), states signed the Agreement to Prevent Unregulated High SeasFisheries in the Central Arctic Ocean (the CAO Agreement).
What is crucial is thatthe CAO Agreement was negotiated in the “5+5” format, that is, by 5 Arcticcoastal states plus 4 other states with the largest fishing interests and also plus theEuropean Union. So, according to Art. 9 and 11, the Agreement shall enter intoforce 30 days after the date of receipt by the depositary of all instruments ofratification, acceptance or approval to this Agreement by Canada, the People’sRepublic of China, the Denmark in respect of the Faroe Island and Greenland,Iceland, Japan, the Republic of Korea, the Kingdom of Norway, the RussianFederation, the United States of America and the European Union.Another international legal issue noted by foreign legal scholars that iscaused by climate change in the Arctic concerns the legal regulation of extractionof oil and gas. Today, power supply is the key concern out of the whole spectrum525Balton D., Hoydal K.
Policy options for Arctic environmental governance: prepared by the fisheries workinggroup of Arctic TRANSFORM Ecologic Institute. Berlin, (2009). http://arctictransform.org/387of economic problems for the US and EU. Nearly every foreign study on the legalregime of the Arctic recalls that according to the geological survey prepared in theUS, unexplored energy resource reserves in the Arctic are assessed at 90 blnbarrels of oil and 1.669 trillion ft3 of natural gas.526 They derive from this aconclusion that the prospects of oil and gas extraction are colossal and that such alarge-scale activity should have a thorough international legal framework. Theyfurther note that by now, no comprehensive treaty regulation of the matters ofprevention, reduction of pollution caused by maritime oil and gas production in theArctic exists.
The only document in effect is the Arctic Council’s Arctic OffshoreOil and Gas Guidelines,527 which is non-binding. The Guidelines themselves are agood basis to continue work in that direction, but, having been adopted byconsensus, they contain provisions that are too unspecific. The measures outlinedthere should, as scholars suggest, be made more robust. Moreover, there is a needto form a legal framework and organize infrastructure to conduct rescue operationsand environmental protection in case of emergencies. In this context, foreign legalliterature observes that as yet, states are making no specific steps that would leadto the emergence of binding international legal regulation of oil and gas extraction.In terms of prospects of reinforcing international legal regulation in theenergy sphere, foreign legal scholars turn to the practice of the US and the EU.After the notorious accident of BP’s Deepwater Horizon in the Gulf of Mexico, theObama Administration’s attempt to increase marine drilling license issuance wassuspended in December 2010, until more rigorous standards of safety andconservation of the environment are adopted.
That decision let Shell keep itslicense to drill in the Arctic, but before drilling, the company had to conductadditional environmental studies and work out measures in case of oil spillage.Furthermore, the US Department of the Interior was tasked with a “preliminary”526Bird K.J., Charpentier R.R., Gautier D.L., Houseknecht D.W., Klett T.R., Pitman J.K., Moore T.E., SchenkC.J.Tennyson M.E., Wandrey C.J. Circum-Arctic resource appraisal; estimates of undiscovered oil and gas north ofthe Arctic Circle: US Geological Survey Fact Sheet 2008-3049.
United States Geological Survey, (2008) Reston.http://pubs.usgs.gov/fs/2008/3049/527AOG Arctic Offshore Oil and Gas Guidelines. Protection of the Arctic Marine Environment Working Group ofthe Arctic Council, Akureyri, (2009). http://arctic-council.org/filearchives/388study of the areas of the Arctic where drilling is planned, before a license can beissued in 2012-2017.528The US and EU positions in terms of exploitation of energy resources in theArctic are, of course, different since only one EU state (Denmark) has an Arcticcoast; however, Greenland’s autonomy in maritime activities is not constrained byEU law. Nevertheless, the EU consumes almost as much as 24% of the oil and gasextracted in the Arctic, and has a significant influence in this segment of themarket, and thereby can play an important role in the sustainable exploitation ofArctic resources in the context of climate change.
For this reason, legal scholarsconclude that the EU should also take part in the formation of international legalregulation ensuring safety of the exploitation of oil and gas in the Arctic Ocean. Inthis regard, it is noted in the literature that as early as 2008, the EuropeanCommission made a statement endorsing the above Arctic Council Guidelines.529Later, in 2010, the EU adopted a declaration on the safety of offshore oil and gasactivities, calling for cooperation of the Arctic states in developing bindinginternational rules based, among other things, on the Arctic Council Guidelines.530The most acceptable cooperation mechanism here, the scholars opine, wouldbe the environmental impact assessment (EIA) procedure. Along with making itmore efficient, they also view as promising promotion of the best practicesemployed both within EEZs and to resolve boundary issues between them.
Sinceseveral EU member states practice exploiting sea deposits, they, lawyers believe,can also take part in developing legal cooperation in the Arctic. In the future, theysuggest, joint efforts could also result in creating binding pan-Arctic EIAprocedure.531528United States United States Department of the Interior. Press release: Salazar announces revised OCS leasingprogram. Washington, DC, (2010) http://www.doi.gov/news/pressreleases/Salazar-Announces-Revised-OCSLeasing-Program.cfm529European Commission Communication from the Commission to the European Parliament and the Council. TheEuropean Union and the Arctic Region.
2008.530European Commission Facing the challenge of the safety of offshore oil and gas activities. COM (2010) 560final. Communication from the Commission to the European Parliament and the Council, Brussels, 12 Oct. 2010.http://eur-lex.europa.eu/LexUriServ/531Cavalieri S. and Kreamer R. A. op. cit., P. 289.389The last area of concern identified in the Anglo-American doctrine is theenvironmental aspect of changing navigation regime in the Arctic. Globalisationand climate change are the two factors named in the Arctic Marine ShippingAssessment, prepared by the Arctic Council as the key causes of the proliferationof navigation in the Arctic Ocean.
First and foremost, this concerns theproliferation of navigation at a regional level, owing to the increasing explorationand exploitation of sea oil and gas deposits. In 2004, around 6,000 vessels werepresent in the Arctic, where approximately 1,600 were fishing vessels, while theothers were mostly carriers related to the energy business. The number of touristliner boats, however, is increasing as well.In foreign academic literature, one can find various approaches to analysingthe navigation opportunities opening in the Arctic and assessing the prospects ofsuch a development.
Some lawyers tend to discuss this topic solely through theprism of the issues of navigation along the Northwest and Northeast Passages(including the Northern Sea Route).The Northwest Passage running along the coasts of Canada was declared itsinternal waters in 1985, which entails evident legal effects.532 The U.S.
does notshare this position, believing that that sea route should have the status of aninternational strait. That point of view generally is supported by the EU as well. In1988, Canada and the U.S. made an agreement allowing U.S. icebreakers to passsubject to Canada’s consent. (Interestingly, Russian studies of the status of theNorthwest Passage are almost entirely ignored.) As noted by Jessie Carman, the1988 agreement only temporarily stabilized the situation.533 Climate change in thefuture may turn the Northwest Passage into a commercially attractive navigationroute, free of ice seasonally or year-round, which may result in intensified tensionsbetween the U.S.
and Canada and/or between Canada and the EU. In recent years,Canada has taken new steps to strengthen its military presence in the region; and in532Huebert R. Polar vision or tunnel vision: the making of Canadian Arctic policy. Marine Policy 19 (4) (1995), P.343–363; Rothwell D.R. (1993) The Canadian-U.S. northwest passage dispute: a reassessment.
Cornell InternationalLaw Journal 26 (2), P. 331–372.533Carman J.C. Economic and strategic implications of ice-free arctic seas. / Tangredi S.J. (ed.) Globalization andmaritime power. National Defense University Press Washington, DC, (2002).390December 2009, Canada’s Parliament almost unanimously voted to change thename into “Canadian Northwest Passage.”Researchers believe that Russia’s position on the Northeast Passage (westernscholars sometimes confuse it with the notion of “Northern Sea Route”) is closer toCanada’s stance on the Northwest Passage. Other countries and primarily the USsimilarly do not agree fully with this interpretation of the status of the NorthernSea Route and sometimes assert that it would be lawful to view the NortheastPassage (including the Northern Sea Route) as an international route open for thetransit of foreign vessels.In the future, it is projected that wide navigation opportunities along both theNorthwest and Northeast Passages may become a reality.
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