In May 1999 Denmark and the United Kingdom concluded an agreement (1999 Agreement) concerning their overlapping claims to fisheries zones and continental shelf in North Atlantic waters located between the Faroe Islands and Scotland. The 1999 Agreement designates continental shelf and fisheries zone boundaries in addition to a ‘Special Area’ of water column that remains subject to the overlapping jurisdictional claims both States.
Design features of provisional joint management frameworks:
Within the Special Area each State ‘is entitled to exercise its jurisdiction and rights in accordance with the provisions of Articles 5, 6 and 7’ of the Agreement. Article 5 of the 1999 Agreement establishes a framework for the cooperative exercise of fisheries jurisdiction within the Special Area. Both States are required to apply within the Special Area their respective rules and regulations concerning the management and conduct of fisheries. They are also required to refrain within the Special Area from (1) inspection and control of vessels operating under a license issued by the other State; and (2) taking ‘any action that would disregard or infringe upon the exercise of fisheries jurisdiction by the other Party or the conduct of fisheries under license issued by the other Party.’
Article 6 of the 1999 Agreement contains several obligations designed to prevent the exercise of continental shelf jurisdiction by both States from impacting upon fishing activities within the Special Area. Both States are obliged, inter alia, to (1) ‘take all possible steps to prevent and eliminate pollution’ from the their ‘offshore activities, in accordance with the Convention for the Protection of the Marine Environment of the North-East Atlantic …’; and (2) provide timely notification to the other State of any activity that may have an adverse impact on the marine environment. Article 7 of the 1999 Agreement contains a provision designed to restrain the unilateral exercise of several aspects of coastal State jurisdiction within the Special Area. It provides as follows:
With regard to the exercise in the Special Area of jurisdiction and rights which are conferred on coastal States by international law, other than such jurisdiction or rights that follow directly from continental shelf or fisheries jurisdiction, each Party shall refrain from exercising such jurisdiction or rights without the agreement of the other Party and shall cooperate with the other Party, notably on measures to protect the marine environment.
The 1999 Agreement does not contain a provision protecting the legal positions of both States concerning their overlapping claims in the Special Area. Rather, the 1999 Agreement is expressed to ‘be without prejudice to any claim of either Party’ outside of ‘the area between the Faroe Irelands and the United Kingdom within 200 nautical miles from the baselines from which the territorial sea of each Party is measured’. The clear omission of a clause protecting claims within the Special Area is suggestive of an intention to cooperatively manage this OCA on a permanent basis.
Comment concerning functional coverage:
The 1999 Agreement is functionally focused on fisheries cooperation in the Special Area and contains only general provisions concerning the other important aspect of coastal State jurisdiction beyond 24 nautical miles, namely protection of the marine environment. Environmental management in the Special Area is, however, managed in accordance with detailed provisions set out in the Convention for the Protection of the Marine Environment of the North-East Atlantic, to which both Denmark and the United Kingdom are party.
