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2.6 Geographical scope


2.6.1 Geographical scope relevant to boundary delimitation or undelimited zone issues

Those arrangements establishing one or more maritime boundaries (see section 2.5 above) first define the position of the boundary. The location of any special zone established in relation to the fisheries jurisdiction boundary is then also defined. For example, the River Plate Treaty defines its common fishing zone in terms of circumferential arcs of a given radius with centres at specified points, while the Faroes/UK Agreement defines the boundary of its “Special Area” using coordinates in a schedule.

Where this zone is simply superimposed on the established boundary such that the boundary remains in place in the background (e.g. River Plate Treaty’s common fishing zone), the arrangement can usually proceed by referring to each party’s waters within that zone. However, where the zone is a solution to some uncertainty over the boundary such that there is no boundary in place in the background (e.g. the Faroes/UK Agreement “Special Area”), the arrangement will refer to the zone by its name but will obviously avoid references to the parties’ waters within that zone.

Those arrangements that do not delimit any maritime boundary but instead identify special zones that are to some extent as yet undelimited between the parties (see section 2.5 above), take a variable approach to identifying the zone. The Japan/China Agreement and the Trinidad and Tobago/Venezuela Agreement both identify the zone concerned with a list of coordinates. In contrast, the Halibut Convention refers to “boundary regions” but makes no attempt to define these further. In all cases, because there is no boundary in place in the background, each arrangement refers to the zone by its name but avoids references to the parties’ waters within that zone.

2.6.2 Geographical scope in all other cases

Several arrangements use a clause to define their scope in terms of geographic features, or coordinates, or lines of latitude/longitude, or a combination of these [NEAFC Convention; Baltic Sea Convention; Mediterranean Agreement; Gulf Agreement]. A shorthand is then used to refer to this zone. The NEAFC and Baltic Sea Conventions refer to “the Convention area”, the Mediterranean Convention and African Atlantic Conventions to “the Region” and the Gulf Agreement to “the Area”. The Norway/Russia 1975 Agreement cross-refers to “the area covered by the [NEAFC Convention]”.

Several arrangements use a clause to define their scope as being the parties’ waters [Japan/China Agreement; Japan/Korea Agreement; Halibut Convention; Micronesia Arrangement]. The Micronesia Arrangement then uses the shorthand of “Arrangement Area” to refer to these waters. In other arrangements, though it is evident that the arrangement is restricted in scope to the parties’ waters, this is not stated in any scope clause [Pacific Salmon Treaty; FFA Convention; Nauru Agreement; Niue Agreement; SRFC Access Convention; SRFC Hot Pursuit Convention; Mauritania/Senegal Convention]. One arrangement [African Atlantic Convention] takes a hybrid approach between referring to geographic and jurisdictional features, by referring to the area comprising specified States.

In some cases, the majority of the provisions apply to the parties’ waters but there are also provisions applicable further afield [Herring System; Mackerel System; Norway/Russia 1976 Agreement; Loophole Agreement]. The Black Sea Convention aspires to applying to the entire Black Sea. However, in that its parties consist of only three States, the geographical scope is to be implied as the waters of the parties and any waters beyond to the extent that actions there do not prejudice the legitimate rights of non-parties.

The Australia/Indonesia Agreement makes no single, express statement about its geographical scope. However: (a) its preamble recalls various bilateral instruments relating to maritime boundaries between the two parties; (b) it refers to “shared stocks, straddling stocks and highly migratory species” and to the parties cooperating “directly or through appropriate international organisations to assure the conservation and management of marine living resources of the high seas”;[10] it refers to the waters of the two parties;[11] and it states the parties are to “interpret and implement this Agreement consistently with the existing maritime boundary agreements between the Parties and the 1981 [Australia/Indonesia MOU]”.[12]

The Canada/US Enforcement Agreement equally makes no express statement about its geographical scope; the assumption is then that it applies to any illegal fishing by vessels of one party in the waters of the other party.

2.6.3 Exclusions

Finally, some arrangements in both of the above categories expressly exclude application to certain specified waters. The Baltic Sea Convention and the Gulf Agreement exclude application to the parties’ internal waters. Some arrangements, notably those relating to access rights, expressly or impliedly exclude application to the waters landwards of the parties’ 12 nautical mile limits [Japan/China Agreement; Japan/Korea Agreement; Norway/Russia 1976 Agreement; Loophole Agreement; Nauru Agreement; Micronesia Arrangement]. The River Plate Treaty takes the same approach in respect of its common fishing zone.

The Micronesia Arrangement excludes “waters closed to fishing in accordance with Schedule 2 of Annex V”.[13] The Japan/China Agreement excludes two specified zones delimited by a lines of latitude and longitude, respectively; Hee Kwon suggests that one of these exclusions is due to the presence of politically sensitive islands.[14] The NEAFC Convention operates a two pillar system, whereby (a) overall the convention applies to the area defined in the scope clause (consisting of coastal States’ waters and high seas) and then (b) coastal States’ waters are subject to qualified exclusion in several respects. The Mediterranean Agreement requires States, when accepting the agreement, to “state explicitly to which territories their participation shall extend”.[15]


For those parts of an arrangement relating solely to access by foreign vessels to the waters of the respective parties, a limit on the scope to those waters is clearly legitimate. In the arrangements analysed above, States have tended to limit access rights by other States to waters beyond their territorial seas; however, whether this limitation is appropriate in a particular cases will obviously very much depend on the circumstances of the States concerned.

For those parts of an arrangement relating to cooperation on the conservation and management of a stock, legal imperatives may in part dictate the geographical scope of the arrangement. If a highly migratory species or a straddling stock is involved, the cooperative duties in Arts 64[16] or 63(2)[17] LOSC, respectively, apply. Though not yet in force, the Fish Stocks Agreement’s duties on cooperation regarding highly migratory fish stocks and straddling fish stocks are also to be borne in mind. Such cooperation duties may widen the appropriate geographical scope of the arrangement to the high seas. In this respect, both the Herring System and the Mackerel System widen their scope to the high seas indirectly, by establishing formal links to the NEAFC Convention process.

If there is no straddling stock or highly migratory stock or species involved, the coastal States may legitimately confine the scope of their arrangement for cooperation on conservation and management to their own waters. Subject to agreement, the States obviously have discretion on what areas are excluded (for example internal waters or territorial waters). There is scope for flexibility here. For example, internal waters could be included for the purpose of, say, the geographical scope of the TAC but then excluded with regard to access for certain categories of vessel.

In the examples analysed in this report, the geographical scope of the arrangement has been defined either directly by reference to geographic features, coordinates or lines of latitude/longitude or indirectly by reference to zones of jurisdiction. Reference to features, coordinates or lines has been used by those arrangements relating to specific seas (i.e. the Baltic, Mediterranean and Gulf) or by the NEAFC Convention which covers inter alia high seas and so needs such reference points. Where there is no specific sea or area of high seas involved, definition of the scope by reference to zones of jurisdiction may well be appropriate. The approach adopted by the African Atlantic Convention of referring to the area comprising specified States is confusing in that it is not immediately clear how much of a State’s waters are included; matters only become clearer by inference from some later provisions. In general, a specific clause making clear the scope early on in the arrangement is preferable.

When the parties to an arrangement create a special zone in relation to a contentious maritime boundary, the general tendency is to define the location of that zone. The alternative is to refer to the zone simply as, say, “boundary waters”; however, this simple drafting solution may well bring problems of interpretation later. The special zone is normally given a name, for ease of reference and to avoid the need to refer to the parties respective waters in that context.

[10] Article 3.
[11] Articles 6 & 7.
[12] Article 11.
[13] Article 1.
[14] p. 53.
[15] Article XV.
[16] Article 64 LOSC reads as follows: "(1) The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall co-operate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall co-operate to establish such an organization and participate in its work. (2) The provisions of paragraph 1 apply in addition to the other provisions of this Part."
[17] Article 63(2) LOSC reads as follows: "Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area."

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