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Home Brexit Sovereignty has “Rock-all” to do with it… or has it? What’s at stake in the recent diplomatic spat between Scotland and Ireland?

Sovereignty has “Rock-all” to do with it… or has it? What’s at stake in the recent diplomatic spat between Scotland and Ireland?

Published on July 8, 2019        Author: 
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Rockall, the tiny, remote, rocky outcrop in the northeast Atlantic – a ghostly peak of an extinct volcano – has periodically appeared in the news at the centre of a longstanding dispute between the UK and Ireland (as well as, more peripherally, Denmark (Faroe Islands) and Iceland too). This dispute has rarely flared up publicly over recent years, as it has largely been subsumed as part of ongoing, unresolved negotiations surrounding extended continental shelf claims of the four states concerned. However, earlier this month, the Scottish government threatened enforcement action against Irish vessels which it claimed were illegally fishing within Scottish territorial waters surrounding Rockall. Ireland immediately responded to this threat by denying Scotland’s right to take any such action. It seemingly based its position on (i) a rejection of UK sovereignty over the islet and, (ii) the argument that such sovereignty (even if it existed) over uninhabited ‘rocks’ like Rockall was irrelevant for the UK’s claimed maritime entitlement. Although any enforcement action has yet to take place, the underlying diplomatic feud appears not to be going away any time soon. Indeed, following a meeting on Friday 28 June between the Irish Prime Minister (the Taoiseach) and Scottish First Minister, there has been an agreement to intensify discussions in light of the diplomatic impasse.

The Scottish position is perhaps explicable in a pre-Brexit (and pro-independence) political climate, where sovereign rights over natural resources will play a critical part – a theme I briefly return to at the end of this post. However, Ireland’s counterargument appears to be built on a misapprehension of the applicable law, both over territory and associated maritime rights. The real issue would appear to lie in the permissibility of fishing – including potentially acquired customary rights to do so – in the context of EU Common Fisheries Policy rules. In this short post I want to clarify the legal position on sovereignty and associated maritime rights, before turning to the arguably more complicated issue of fishing rights specifically. Before doing so, for those not already familiar, a brief introduction to Rockall is necessary.

What and where is Rockall?

Although perhaps not as well-known beyond the UK and Ireland, there is a certain folk mystique surrounding Rockall more locally, whether due to the long-standing sovereignty dispute, or daring attempts by adventurers and protestors to camp out on the rock for sustained periods, or even its recurrence as a basepoint on the nightly shipping forecast on BBC Radio 4. Nevertheless, one might be surprised by this level of interest given the rather insignificant size – measuring just over 17 meters tall and 25 meters wide – bleak nature and remote position of this tiny islet. Indeed, in 1971, Lord Kennet famously exclaimed that ‘[t]here can be no place more desolate, more despairing, more awful to see in the world’. Uninhabited (except by molluscs, periwinkles and, weather permitting, various species of nesting seabirds) and essentially uninhabitable, this small chunk of granite rock, the sole-remaining peak of a submerged volcanic plateau, is located around 167 nautical miles (309km) west of the Scottish island of St Kilda – itself now an uninhabited island – and about 230 nautical miles northwest of the Irish (Donegal) coast, making it probably the most isolated uninhabited islet of its kind in the world.

Its uninviting nature aside, Rockall has nonetheless held a certain allure to adventurers and scientists alike – with expeditions going back to at least the early nineteenth century (see a brief timeline here). Despite early scientific interest, the territory was not formally claimed or annexed until the British Navy landed in 1955, installing a plaque and hoisting the Union Jack in order to claim the rock as UK territory. This act might be categorised as the last formal expansion of British colonial rule, though seems to have been primarily motivated by the fear that the Soviet Union would use the islet as a base from which to spy on UK nuclear tests. In 1971, the UK Navy mounted an operation in which they blasted off a chunk of the top of the rock in order to install a light beacon. Since then, there have been numerous attempts, for various reasons, to land on, or occupy the rock for prolonged periods, with a recent solo adventurer setting a record with a 45-day stay.

The UK’s Sovereignty over Rockall and its Significance

Despite press coverage pitching this recent spat as a long-standing territorial dispute between neighbouring states, the question of sovereignty over Rockall seems fairly clear though the significance of this sovereignty might be more open to disagreement. The UK’s actions in 1955 amounted to a clear symbolic annexation – the planting of a flag and installation of a plaque – and these actions were subsequently followed by acts of administrative control, such as the above-noted installation of a light beacon and the incorporation of the islet into the county of Inverness-shire through the passage of the Island of Rockall Act in 1972. Ireland has not formally (that is, diplomatically) protested these acts, nor has it itself attempted to claim sovereignty over Rockall. Given the absence of protest from other states also, or indeed any other competing claims to sovereignty, and recognising the continuity of British administrative control over Rockall, there seems little doubt as to the validity of the UK claim. Indeed, Harrison makes this point clearly and forcefully here, as in fact do two leading commentators from Ireland, here.

Furthermore, it seems that since 1988 Ireland has accepted a delimited maritime boundary with the UK which places Rockall within the UK’s 200 nautical mile exclusive economic zone – at least when measured from a baseline drawn from the Scottish island of St Kilda (a basepoint which itself is not without controversy, given its lack of inhabitants for most of the last century). Ireland has, however, maintained a position that sea stacks, rocks or skerries such as Rockall are not capable of sovereign possession in any meaningful sense, that is, that their ownership has ‘no significance for establishing legal claims to mineral rights in the adjacent seabed or to fishing rights in the surrounding seas’. This was one of the core legal arguments for which Ireland successfully lobbied at the third UN Conference on the Law of the Sea, which led to the inclusion of a specific provision in the form of the ‘regime of islands’ in the 1982 Convention. Specifically, UNCLOS Article 121(3) provides that ‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’. Whilst these ‘rocks’ are still islands – in the sense of being ‘a naturally formed area of land, surrounded by water, which is above water at high tide’ (UNCLOS Article 121(1)) – the ‘downgrading’ of their status has a substantial impact on associated maritime claims. Indeed, such a distinction was pivotal, for instance, in the recent South China Sea arbitration. At the same time, whilst not attracting a full suite of maritime entitlements it remains the case that islands like Rockall still give rise to a 12 nautical mile territorial sea. It is surprising, therefore, that in a recent parliamentary debate the Irish fisheries minister has reiterated the Irish position that ‘a claim on sovereignty is unable to establish an exclusive 12-mile zone around an uninhabitable island’. As Harrison, above, rightly points out, that all such islands generate territorial waters has been repeatedly reaffirmed in relevant caselaw and, I would assert, is surely now uncontroversial as an accepted distinction in customary international law. As such, given that Scottish fisheries enforcement is threatened within what would appear to be UK territorial waters, the noted disqualification would seem to be largely irrelevant to the current dispute.

What’s Actually at Stake in this Dispute?

Despite the somewhat heated rhetoric around sovereignty over Rockall (as well as its significance) the real issue at stake with regard to Scotland’s threatened enforcement action is whether Irish fishing vessels have any meaningful legal right to fish within UK territorial waters around Rockall. Whilst under the EU’s Common Fisheries Policy member states’ fisheries zones are essentially pooled as European waters, territorial waters are essentially excluded under Article 5 of EU Regulation No. 1380/2013, with the exception that neighbouring states may accumulate such rights to fish within those waters under express agreement or according to any of the instances listed within Annex I of the Regulation. However, the listed exceptions for Irish access to UK waters do not explicitly include Rockall, and only provide limited access between 6 and 12 nautical miles as provided for under the 1964 London Fisheries Convention. Although the UK has initiated a process of withdrawal from the latter convention, which has not yet taken effect, regardless it would seem that the listed exceptions do not extend to Rockall explicitly, and there is clearly no excepted right allowing access to Rockall territorial waters within 6 nautical miles of the islet.

As such, the strongest argument that Ireland may seek to rely upon would be a ‘historical’ right to fish in these waters. Media reports suggest that Irish vessels have been catching squid and haddock stocks around Rockall for many years now, seemingly with the express knowledge and acquiescence of Scottish fisheries inspectors, and somewhat anecdotal conversations with Irish and Scottish fishermen – mostly via social media – have backed up these reports. For its part, Scotland is claiming that it has warned of such ‘incursions’ into Scottish waters for some time now. This seems to be backed up by Ireland itself. In a written answer to a parliamentary question on contacts between the two governments, the Irish Tánaiste and Minister for Foreign Affairs Simon Coveney claimed that the initial demand from Scotland to cease fishing activity around Rockall came in April 2017. Nevertheless, after reaffirming the Irish position on sovereignty the Minister went on to claim that ‘the approach taken by the Irish and British Governments to the definition of maritime boundaries in the past has been to accept that our views differ and to take no account of Rockall for practical purposes’ (emphasis added).

Whether this acquiescence in, or turning a blind eye to, past practices is sufficient enough to say that Irish fishing in these waters amounted to a settled practice, and one that had been accepted by the United Kingdom for as long as it has claimed a 12 nautical mile territorial sea around Rockall, is difficult to say with any certainty. In the meantime, it seems most likely that any resolution to this dispute will depend more on negotiation, agreement and good faith from both sides. What is certain, however, is that this move from Scotland comes at a time when both the UK is posturing for greater sovereign control over natural resources in the run up to Brexit, as well as a at a time when Scottish independence is again back on the table as the SNP itself attempts to position its own right to police and profit from the abundant natural resources around its coastline.

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4 Responses

  1. Thank you, Richard, for your insightful analysis.

    Just one point: The exclusion of the 0-12 nm belt by the UK under Art. 5 of the Basic CFP Framework Regulation affects the entire belt, not just the inner 0-6 nm. You reference the London Fisheries Convention (LFC) for the outer 6-12 nm, but this reference is incorrect as the LFC does no longer serve as a separate basis for fisheries access within the framework of the CFP (see my post here at https://www.ejiltalk.org/brexit-and-fisheries-access-some-reflections-on-the-uks-denunciation-of-the-1964-london-fisheries-convention/; a more detailed article is forthcoming). Any access entitlements under the LFC that were agreed to be continued have now been incorporated into Annex I of the Regulation – and as you correctly noted, Rockall is not mentioned.

    To me, the only legally tenable Irish arguments are, as you say, historic fishing rights based on acquiescence (highly unlikely, particularly given the existence of the LFC and CFP) and equal access based on a very literal wording of Art. 5(2) of the Basic CFP Framework Regulation (see here: https://www.irishtimes.com/opinion/ireland-s-stance-in-the-rockall-dispute-is-largely-nonsense-1.3927368), which only permits MS “to restrict fishing to fishing vessels that traditionally fish in those waters from ports on the adjacent coast” (what is the adjacent coast and who has fished at Rockall traditionally?).

    Note, however, that if the argument based on the Regulation were successful, then Irish fishing would have been lawful and would not have left any room for acquiescence-based rights that might survive Brexit. As the Regulation itself ceases to apply post-Brexit, this would be quite a Pyrrhic victory.

  2. Richard Collins Richard Collins

    Thanks Valentin.
    I admit to rather rushing through the CFP/London section here – a topic about which I will freely admit not to be an expert (and corrections and clarifications therefore very much welcome). Nevertheless, I hadn’t meant to suggest that the general Article 5 exception was only meant to cover 6-12 NM, but was just referring to the Annex I specific exceptions here. Still, poorly worded from me anyway… Is your reading of London being superceded by CFP just your take (and Churchill’s) or would you say that is the accepted position (and the position shared by e.g. the UK)? I ask out of interest and not because I disagree. (I look forward to reading the article on this too).
    Above points aside, as you say, only a rather strained reading of 5(2) would support the Irish position, and there would need to be some pretty compelling evidence put forward to sustain a historic fishing rights argument. I think the best argument may just be that there has been an implied licence to fish up to this point, but the Scottish actions now put Ireland on notice that this is no longer the case. Your point at the end here is spot on, however!
    Thanks again and best wishes, Richard

  3. Dear Richard,

    thank you for your kind reply!

    My reply to your question:

    I believe that position that the CFP has taken over is very much the accepted position and I see no room in the CFP Regulation that would allow for its continued operation among EU member States (and no need given the arrangements in Annex I of the regulation). However, there is some disagreement as to what the status of the LFC is today: I would argue that it is still in force (it basically declares itself subsidiary to the CFP) and simply is not applied as long as this lex specialis situation continues. In my view, it would, however, have been revived by Brexit (of course the UK prevented this by denouncing the LFC and by prolonging the withdrawal period so that the denunciation takes effect at the same time as Brexit).

    Churchill, on the other hand, argues that the LFC is incompatible with UNCLOS and, therefore, no longer in force or at least inapplicable under the rules of the VCLT and Art. 311 UNCLOS. So far, I have not come across anyone who shares Churchill’s view, which borrows arguments from the arbitral award in the South China Sea Arbitration (which, however, concern historic fishing rights). Personally, I don’t see how the LFC is incompatible with UNCLOS as such.

    Best wishes

    Valentin

  4. Richard Collins Richard Collins

    Really helpful.
    Thanks Valentin.
    Best wishes, Richard