диссертация (1169188), страница 92
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Thus, Norway, an Arctic state with the smallest shelf, has 8.5 bln. ofproven oil reserves (as of January 2005), the biggest in Western Europe;- expansion of oil and gas exploitation in the Arctic today is creating a realand most serious threat to the Arctic ecosystem, whose well-being is, as alreadynoted, valuable to the whole biosphere. The most hazardous types of pollution inthe Arctic are pollution by oil and oil products,560 heavy metals, resistant organicmatter (ROM) and solid waste (chemical pollution), and radioactive pollution.
InArctic conditions, oil and oil products are especially dangerous due to slowbiochemical degradation at low temperatures. Oil spilled in the Arctic seas ends upon the coast or ice fields where temperature is even lower than in the water, sothere is practically no biodegradation. Such oil is preserved for decades (andpossibly for centuries);- the transboundary nature of pollution in the Arctic requires internationalmeasures to protect ecosystems, prevent pollution from spreading and urgentassistance by neighbouring states in case of emergencies and accidents, and todevelop the respective support mechanisms;557Young O.R.
Navigating the Interface. Arctic State/Non-Arctic State Engagement. / The Arctic in World Affairs.Eds. O. Young, J.D. Kim. Seoul. 2014. P. 2014. P. 225–244.558Out of the multitude of books on sustainable development published abroad, this study is using Birni P.W., BoyleA.E. Environmental law and Environment. Oxford University Press, New York. 1994.
562 pp.559Gautier D.L. and Pierce B.S. Circum-Arctic Resource Appraisal: Estimates of Undiscovered Oil and Gas Northof the Arctic Circle. For the U.S. Geological Survey. 23 July 2008.560Ecotoxicants also include the oil products that were altered as a result of technological processes, the oil residues.405- reduction of the ice sheet under the influence of natural and man-madefactors has colossal economic, social and environmental consequences.The peculiarities of the international legal characteristic of the Arctic areprimarily due to the fact that its international legal status, as well as the status of itsmineral and living resources is not currently absolutely clear and defined in allaspects. At first sight, according to the Anglo-American legal doctrines, the keyinternational legal act determining the legal status of the Arctic is the UNCLOS.This is the prevailing opinion held by many Western and even Russian lawyers.But that opinion is questionable.
Firstly, not all Arctic states are parties toUNCLOS and not all recognize UNCLOS’ Part XI (“The Area”) applicability tothe Arctic. Secondly, the Convention itself has only one Article – Art. 234 (“Icecovered areas”), that contains provisions on basins with especially harsh climateconditions and covered by ice for most of the year. This Article, moreover, isconfined to the 200-mile EEZs.Many international treaties on maritime activities (e.g., the 1973International Convention for the Prevention of Pollution from Ships with the 1978Protocol, or MARPOL 1973/78) or environment protection (the BiodiversityConvention, the Framework Convention on Climate Change, the RamsarConvention, etc.), are applicable to the Arctic, but they do not account for theuniqueness of the Arctic nature and peculiarities of its ecosystem.This legal condition may last for many more years.
The problem of creationof a special legal framework, both at the international and national levels, toprotect specifically the Arctic ecosystem and ensure the Arctic’s sustainabledevelopment, is becoming increasingly pressing in view of the intensification ofexploitation of Arctic oil and gas and other mineral resources, as discussed above.It should be noted in this context, that it appears promising to conserve theArctic nature while relying on the already existing legal reality: the combination ofcooperation – based on the applicable principles and rules of international law –and national legislation of the Arctic states.
As emphasized in the 2008 IlulissatDeclaration, the five Arctic states will take measures under international law both406at the domestic level and in cooperation with each other and other interested states,so as to ensure the protection and conservation of the fragile marine environmentof the Arctic Ocean (“We will take steps in accordance with international law bothnationally and in cooperation among the five states and other interested parties toensure the protection and preservation of the fragile marine environment of theArctic Ocean”561).That international legal context begs a logical question: what is the scopeand meaning of the concept of sustainable development of the Arctic? Can one talkabout any unique sustainable development model for that region of the Earth?What would be the legal avenues to implement it?Academic works on the Arctic and official fora demonstrate a common viewon the principles for conducting any activities in the Arctic: they focus onsustainable development.
But, it seems, there is as yet no uniform understandingwhat sustainable development for the Arctic is or what its legal components are.562In the context of this dissertation, it is important to note that during the timeafter the publication of the “Our Common Future” Report, the concept hasundergone a substantial transformation, not only from the standpoint of content,but also of status.
Primarily, this is due to the development of European law, theformation of the EU; the idea of sustainable development has now a new aspect: itis recognized as a legal principle within the EU. The principle of sustainabledevelopment has become one of the fundamental principles of EU environmentallaw and is envisaged in the Maastricht Treaty. Both the Treaty itself and numerousother EU documents widely use the notion of “sustainable development”, but onewould be unable to find a single act containing a detailed description of its legalscope.
It is elaborated in EU acts (mostly in directives) concerning the resolutionof various issues, first of all, of the use of resources, environmental protection anddevelopment of the relevant legal mechanisms (e.g., the Fifth Environmental561Oceanlaw.org562Bock N. Sustainable Development Considerations in the Arctic. / Environmental Security in the Arctic Ocean.Ed. by P.A. Berkman and A.N. Vylegzhanin . Springer. Dordrecht, 2013, P. 40.407Action Programme is called just that, “Towards Sustainability”).As a legal principle, sustainable development was conceptually developedmainly by Anglo-American and European legal scholars. In foreign (not Russian)legal literature, one can find its common description. It includes the following keypremises.1.
Recognition of the human right to the environment that corresponds torequirements for support of life and welfare.2. States’ recognition of the principle of intergenerational equity in terms ofuse of the environment and natural resources.3. Conservation of nature implies the management of use of the environmentand natural resources to ensure their best sustainable use in the interests of thisgeneration, while preserving resource potential to provide for the needs of futuregenerations.
This principle is viewed as an integral element of the planningprocess.4. Valuable ecosystems and natural processes of the biosphere should besubject to conservation, which, in turn, is inseparable from conserving biodiversity.5. States must adopt sufficiently high environmental standards and monitorthe state of the environment based on the same; the respective data should bepublished in the open press.6. Where human activities may cause a significant impact on theenvironment or the state of natural resources, a decision to conduct the sameshould be preceded by an EIA.7. States and persons that are likely to suffer the impact of activities referredto in para.
6, should be informed of the project in advance and should have accessto the respective administrative and judicial authorities for the legal protection oftheir rights.8. States should cooperate in promoting the concept of sustainabledevelopment; the most developed states should render assistance to developingones.4089. Given that many natural objects and resources are transnational and globalin nature, they should be used by states reasonably and equitably.
Here, statesshould strive to prevent material adverse transboundary impact on theenvironment.I should note that this interpretation of the scope of sustainable developmentcovers a number of principal contemporary legal methods and rules aimed atconserving the nature and seeking a balance of social, economic and environmentalinterests (conservation of ecosystems and biodiversity, applying EIA, preventingharm, including transboundary harm, to the environment, transparency ofenvironmentallyrelevant information).
However, neither EUdocumentsrecognizing sustainable development as a legal principle, nor the theoreticaldefinitions expound such key elements as future generations and development. Ifone is to build a sustainable development model for a particular region, the Arcticin this case, then, of course, its main elements should be specified.It appears that, from the legal standpoint, it is difficult. First of all, it isunclear what future generations the concept of sustainable development implies –our children or great-great-greatgrandchildren. If the needs of our children’sgeneration for natural resources are more or less clear, is it realistic today to assessthe needs of more distant generations? Would they, for instance, need oil and gasas we do now? Or will they use sun or atom energy, having also discovered a wayof maximum processing of nuclear waste?Secondly, from the legal standpoint, it is necessary to determine what doesthe term “development” in this concept mean.
Taking into account theinterpretation used in legal documents the scholars try to answer this question.Here, we should consider that approaches to defining “development” are changingin the political and legal literature. If not so long ago “economic development” wastraditionally viewed as economic growth, the current definition of development ismuch broader.
Legal documents already evidence a distinction between the terms“economic growth” and “economic development”. The key goals of economicdevelopment are achieving higher living standards and quality, which suggests,409among other things, higher income, more jobs, better education, increased attentionto cultural and ethical values, expanding the opportunities for economic and socialchoice. It is also important that all interested parties are involved.The question of whether “development” is possible without economicgrowth is answered by many researchers by saying that poorer regions sometimeshave economic growth, but this is accompanied by very little, if any, economicdevelopment. Here, one can frequently find them relying on the economic life ofindigenous northern peoples as an example.
They see one of the reasons in that theArctic resources can be used as a source for economic development beyond theregion, but at the same time the local population gains very low benefits. Theeffect for the Arctic population from investments into the region or from theexploitation of mineral resources is very often quite modest; income flows outsidethe region, to where the companies conducting commercial activities want it.563Foreign academic works view the composite elements of sustainabledevelopment in the Arctic (just like globally) as specific problems to be resolvedor as directions to be developed.The issues mentioned include: pressure on natural resources, primarilyenergy resources; increasing intensity of navigation due to the melting of ice cover;fishing, whose intensity and scale exceeds the abilities of the Arctic ecosystem forrestoration (e.g., catastrophic over-fishing and undermining of the population ofCanadian cod in the Atlantic in the 90s); pollution; change of land use (instead oftraditional deer grazing grounds, land is now used for oil and gas facilities,infrastructure, pipelines), resulting, in particular, in the pollution of the marineenvironment by river sewage; decreasing biodiversity spurred to no small extent bythe change of temperature and salinity of sea water, ice melting, pollution.The protected areas of the Arctic, both marine and land, are constantlyexpanding.
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