An Irish Claim to Rockall

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Due to Brexit, dispute has again arisen between the UK and Ireland over Rockall, a small rock in the North-East Atlantic Ocean, and its surrounding waters. On January 4th a Marine Scotland patrol boat stopped and boarded an Irish fishing trawler, forcing it to leave waters within 12 nautical miles of the rock. Scotland asserted the UK claim to Rockall in anticipation of Brexit and sent patrol boats to the area immediately upon formally exiting the EU legal order on January 1st. In response the Irish Ministers for Foreign Affairs and for Agriculture, Food and the Marine issued a joint statement saying they were engaging with Scottish authorities but that “there remains an increased risk of enforcement action being taken by Scottish fisheries control authorities against Irish vessels operating in the waters around Rockall at present.” This is the most recent instantiation of a longer dispute. In May 2019 the Scottish government informed the Irish government that it intended to exclude Irish fishing boats from what it asserts is its 12-mile territorial sea around Rockall, which generated a widely reported exchange between the governments.

Ireland, the UK, Iceland and Denmark (on behalf of the Faroe Islands) have made competing claims to marine jurisdictions around Rockall since the UK purported to ‘annex’ the rock in 1955. In this post I focus on the core of the current dispute between Ireland and the UK, which is the UK claim to territorial sovereignty over the rock that is now being vigorously asserted by Edinburgh. Although in the past it has claimed different categories of marine jurisdiction around Rockall, Ireland has not to date articulated a territorial claim to the rock itself. Based on research into Irish state practice in relation to the dispute, I argue it has nonetheless not foreclosed the possibility of making a territorial claim and should now change strategy and do so. If Ireland were to make such a claim, I argue the current UK claim would be a weak one from the perspective of relevant principles of customary international law on the acquisition of territory.

Dispute is forced into the law of territory as the UK leaves the EU legal order

The position of successive Irish governments has been to categorically reject the UK territorial claim, while noting that Ireland has not sought to claim sovereignty for itself. This consistent formulation has seemed to leave open the possibility that the state may seek to make such a claim in the future. Before Brexit however, there have been good reasons to think it unnecessary to pursue the dispute as a territorial one. Instead, Ireland relied on non-territorial legal regimes to access marine resources around Rockall.

The first example of this approach was Ireland’s use of 1970s debates at the Third UN Conference on the Law of the Sea (UNCLOS III) to successfully argue that under the Law of the Sea Convention (LOSC) rocks like Rockall should not independently generate Exclusive Economic Zones (EEZ), within which states have exclusive use of marine and mineral resources. However, under LOSC art 121(1) and 121(2), read with art 2 and 3, if sovereignty over a rock like Rockall was recognised it remained the case that a 12 nautical mile territorial sea could be generated. Here the legal regime established under EC and subsequently EU law that granted access for Union fishing vessels to waters under the sovereignty or jurisdiction of the Member States through the Common Fisheries Policy (CFP) served to reduce possible tensions arising from competing claims to fish around the rock. Ireland consistently asserted a right of access to waters around Rockall on the basis of the CFP. However, Ireland and the UK will no longer share the EU legal framework. If the Irish government wishes to contest the Scottish claim, its strongest legal means of doing so are now within the law of territory.

How Ireland can dispute the UK’s territorial claim

This dispute has most recently been commented upon by Richard Collins (on EJIL: Talk!), Clive Symmons and James Harrison. Collins and Symmons argue that Ireland has acquiesced to the UK’s 1955 ‘annexation’ of Rockall. This seems unconvincing given the notable consistency with which successive Irish governments have been at pains to reiterate specifically Ireland’s rejection of the UK territorial claim (albeit always without articulating a claim of their own). The Irish Minister for Foreign Affairs and Trade again articulated this position in the Dáil (the Irish parliament) during the summer 2019 dispute over Rockall.

Harrison recognises that Ireland has objected to the UK claim, but with Collins and Symmons he accepts the 1955 ‘annexation’ of Rockall by the UK Royal Navy as a successful assertion of sovereignty. All three commentators view the UK parliament’s passing of legislation in 1972 that declared Rockall part of Scotland, and the Royal Navy’s intermittent attempts to demonstrate control over the rock through actions like affixing a ceremonial plaque, attempting to install a light beacon and performing naval patrols, as having strengthened this title.

As noted above, based on research into its state practice I argue Ireland has avoided foreclosing the possibility of making its own territorial claim by consistently reiterating its objection to the UK claim and remaining silent as to whether it may make a future claim. This is an interpretation of the state’s position across successive governments and a long-running dispute, necessarily open to argument on the basis of different statements by government officials in different periods. Were Ireland to advance a competing claim, from the perspective of customary international law on the acquisition of territory the UK’s ‘annexation’, and subsequent acts with respect to Rockall, would not offer a base for good title. I will address two issues that support this argument.  

First, since the 1955 ‘annexation’ the UK government has most consistently represented its acts as occupation of a territory res nullius (or a terra nullius or territorium nullius). These deeply colonial concepts have a contested and violent history that I cannot explore here. It is sufficient to note that even based only on the most readily available geographical and historical records concerning Rockall, the factual assertion that in 1955 this was a territory that could be described by any of these concepts is unconvincing. Rockall was known to, and subject to extensive exploitation by Irish, Scottish, Norwegian, Dutch and Baltic fishing and trading communities from at least the 16th century and was possibly visited and recorded by the Irish monk-adventurer St. Brendan as early as the 6th century. The rock has a place in both Irish and Scottish mythologies. In the Irish telling it exists due to exploits of Fionn MacCumhaill, in the Scottish as a harbinger of the end the world.

The possibility of such examples of historical exploitation supporting competing claims was even flagged in 1971 when the UK House of Commons debated the Island of Rockall Act, intended to solidify the UK claim by incorporating Rockall into a parish of Scotland. In principle most MPs had no objection to a UK claim to the rock, but they were sceptical of the government’s res nullius argument. Many noted with concern that both Scottish and Irish coastal communities had relationships with Rockall that long pre-dated 1955. It is difficult to imagine a contemporary tribunal upholding an argument that this patently exploited territory was res nullius in 1955, or indeed endorsing this last tragicomic expansion of the British Empire.

Second, the more convincing legal argument is that this is a case of prescription, where one state has displaced the good title previously held by another state over the same territory. It is unclear if Scotland could now revise its position in order to claim prescription, given the consistency with which the UK has expressed its belief that Rockall was res nullius in 1955. Assuming for the sake of argument that it can, the question of a critical date is significant. Gerald Fitzmaurice, an authoritative publicist in the area, defines the critical date as, “…the date after which the actions of the parties can no longer affect the issue.” In relevant case law a moment of proclamation, declaration, flag-raising or other ceremonial act has usually been identified as critical to determination of the legal issues. What mattered was what state (if any) had title to the territory at that moment. Where a claim to title relied on the assertion that the territory had been a terra nullius/territorium nullius/territory res nullius, the ‘claiming’ moment itself took on particular significance.

Ireland and Scotland have strong claims based on historic exploitation

It seems likely that in a tribunal setting where an Irish claim to prior title was advanced against the UK claim, a strong argument could be made that the critical moment in relation to Rockall was the moment the Royal Navy claimed title to the rock by raising a flag and cementing to it a ceremonial plaque – 18 September 1955. This would have the consequence that practice undertaken by the UK in respect of Rockall since that date would have no significance to the determination of the dispute. The critical date doctrine is designed for cases of precisely this kind, chosen by a tribunal as a point in time at which the legal circumstances are considered frozen, no longer subject to change through self-serving acts on the part of a claimant state seeking to improve its legal position in anticipation of litigation. It seems quite clear that since 1955 acts performed by the Royal Navy on behalf of the UK government and in the UK Parliament concerning Rockall have been actions of this sort, symbolic acts undertaken subsequent to the dispute’s crystallization with the sole aim of improving the state’s legal position.

Both Scotland and Ireland could articulate strong territorial claims to Rockall by asserting title predating 1955 based on evidence of relationships to, and exploitation of the territory over several centuries. As noted above, this is an argument that is not compatible with the assertion that Rockall was res nullius in 1955, which has been how the UK claim has most consistently been articulated to date. Were Ireland to advance a claim like this, extensive historical and anthropological research would be required to substantiate this history of exploitation.

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Universität Hamburg says

January 14, 2021

Dear Ríán,

thank you for your interesting post. Given that your argument appears to rest on the historical "exploitation" of Rockall by the Irish and Scottish, I find your description of these activities somewhat vague.

Is it your argument that fishing in the waters around a feature may be regarded as an "exploitation" of this territory itself, even for the purposes of generating a claim to sovereignty? This would sound to me almost like a reversal of the idea that "the land dominates the sea". Or did you also have other forms of "exploitation" (e.g., collection of guano) in mind?

Kind regards,

Valentin

Marc Weller says

January 14, 2021

Dear Rian, many thanks for your post. I wonder whether your advice to the Irish government to change its position and possibly put forward a claim is solid. Here are a few points that might merit further consideration:
1. The doctrine of terra nullius may or may not be discredited in view of its purported dark history. However, that history and its more current appreciation does not attach to rocks or lumps of territory. It relates to the unacceptable acquisition of people and territory for the purposes of imperialist exploitation. This context is entirely inapplicable in the present context of an uninhabited piece of rock at issue between two Western European, metropolitan states and the completion of a claim in relation to it through annexation beyond the colonial period.
2. Annexation, or a claim to annexation does not extinguish any previously arising claim, whether perfect or inchoate. Rather, it may formalize any pre-existing claim and consolidate of ‘perfect’ it by making clear the definitive animus occupandi.
3. Neither does annexation render irrelevant acts of subsequent administration. Rather, such acts are necessary in order to demonstrate that the annexation is backed by peaceful and uninterrupted display of state authority. UK/Scottish acts in this respect would certainly meet the Eastern Greenland test.
4. There is no indication of a use of force which would render an annexation invalid. At least in the case of Ireland, there is also no competing claim that would have collided with the annexation.
5. Ireland has, on the other hand, consistently indicated that it does not recognize the British claim over the islands. However, as Ireland has not made a claim of its own, it is doubtful that this attitude in itself would be sufficient to prevent the annexation. Peaceable annexation does not require universal recognition in order to be effective.
6. In the alternative, if this is a case of prescription, or of annexation confirmed or perfected by prescription, a failure to recognize the UK action would not be sufficient to deny its effect. Rather than abstention from recognition, which is a passive fact, protest—an energetic, active attitude—would have been required and would need to have been sustained over time.
7. Similarly, in addition to protesting against the act of annexation, it would have been necessary to protest against the repeated acts of administration of the island by UK/Scottish authorities, which were notorious in relation to Ireland. This includes especially the inclusion of the island within Scottish administrative boundaries, and other manifestations of the belief that it is a part of, and is being actively administered from, there.
8. It might also be interesting to ask whether Ireland would now be estopped from making its own claim, even if a ground for a claim could be conjured up after some 65 years of uninterrupted administration by the UK. Even if it would be possible to make a claim, Ireland might be bound by its view (however erroneous as a matter of the law of the sea) that the rock cannot attract even a territorial sea. If so, presumably there would be little point in putting forward the claim in the first place.

Ríán Derrig says

January 15, 2021

Valentin and Marc, thank you so much for taking the time to engage with my argument and offer these comments. I’ll respond to your points in turn.

Valentin, yes an inquiry into historical claims would have to include activities in waters around the rock. This applies equally to a UK or Irish claim. The UK has already pointed to post-1955 naval patrols and survey activities as effectivités. This is not unusual in cases of small islands, as in the Minquiers and Ecrehos case for example. A tribunal would be particularly interested in the extent to which such activities can be linked to a state’s intention to administer and recognition of that authority, the assertion of regulatory powers for example. If such an inquiry were undertaken it would have to extend across several centuries with the consequence that for much of this period Ireland was not a state in the modern sense and will have created few official material sources indicative of the law. This would necessitate inclusion of a wide range of historical, anthropological and literary sources. I cannot expand on this issue here, but the seminal work addressing legal sources in this context is Anthony Carty’s 1996 'Was Ireland Conquered: International Law and the Irish Question'. This approach would cohere with contemporary developments in case law on ascertainment of indigenous titles to land in post-colonial contexts, which is how I would argue this dispute should be viewed.

Marc, some of your comments don’t seem inconsistent with the argument I make in the post and I don’t disagree with them as statements of the law, so I’ll focus on the points where I’d like to offer a slightly different view.

On point 1 re terra nullius, I have not argued that good title could not be founded on a claim of terra nullius, but rather that categorising Rockall in this way in 1955 is unconvincing as a factual assertion. Based on the legal advice offered to the UK Ministry of Defence by the Colonial Office and the Foreign Office in 1955, I consider the concepts of terra nullius/territorium nullius/territory res nullius very much applicable to the dispute. Minutes written by officials of these offices recording this advice explain the UK government’s view that this territory was unclaimed territory, open to claim by adversary states, and citing as legal precedents a series of Pacific and South Atlantic Ocean islands that had been annexed by the British Empire in the 19th century on the basis of ‘discovery’ and being considered territories res nullius. These minutes have been obtained by Fraser MacDonald and employed in his excellent research on Rockall and the Cold War, which you can read here: https://www.sciencedirect.com/science/article/abs/pii/S0305748805001635

On points 2 and 3 re annexation, I don’t disagree. I would only add that Eastern Greenland is also illustrative of how the critical date doctrine would likely apply to the UK annexation and subsequent purported effectivités. The situation is analogous in that the PCIJ held that either the territory in question had been terra nullius when Norway asserted this to be the case through proclamation of occupation on 10 July 1931, in which case Norway could establish good title by occupation, or the territory had been under Danish sovereignty, in which case the Norwegian proclamation and occupation could not confer title. It is likely a tribunal would similarly proceed by examining whether Rockall was terra nullius in 1955, as the UK has asserted to date.

On point 4, I think it is at least arguable as to whether use of force is at issue. The 1955 annexation was undertaken with no prior publicity by an armed naval vessel crewed by military personnel excepting one scientific observer, who nonetheless also had a military background. The aims were military, to exclude adversary states (primarily the USSR) from a swathe of the North-East Atlantic over which tactical nuclear missiles were to be test-fired. Whether this could be viewed as territory ‘seized by a display of armed force’, and so a case of title by conquest as defined by e.g. Jennings, is open to interpretation. Of course, conquest could not confer good title in 1955 and for this reason I don’t examine it as a basis for the UK claim here.

On points 5, 6 and 7 re possible Irish acquiescence, successive Irish governments have clearly reiterated their rejection of the UK territorial claim and subsequent assertions of sovereignty over Rockall in parliamentary records, public statements and media comments. Of course you are correct and I make clear in the post that this has not yet extended to articulating a competing claim. The bar for establishing acquiescence by silence, especially where what is at stake is the effective abandonment by a state of sovereignty over part of its territory, is high and such abandonment and consent to opposing claims needs to be “manifested clearly and without any doubt”, as the ICJ has made clear e.g. in the Pedra Branca/Pulau Batu Puteh case.

On point 8, I cannot see a legal reason Ireland would be barred from now articulating a claim. An estoppel argument would require demonstration of reliance and it’s not obvious to me what that would be. Re Ireland’s view that sovereignty over Rockall could not generate a territorial sea, you are certainly right and Richard Collins also makes clear in his post that this is incorrect. It seems clear that Ireland has been incorrect on this point as a matter of positive law at least since the coming into force of the LOSC. I believe a mistake as to positive law would not bind the state.

Rick says

January 16, 2021

That is awesome. I wonder what exactly they'll do with Rockall, but I'm rooting for Ireland.

John R Morss says

January 19, 2021

Many thanks Rian for a very informative post. Having lived in both Scotland and Ireland my loyalties are torn! Yes Carty is important here... May I explore terra nullius a bit further or at least enquire for enlightenment... are there any documented instances where tn has indeed been contemporaneously cited as rationale for as Marc Weller puts it, the "unacceptable acquisition of people .... for the purposes of imperialist exploitation"? (Of course, yes as to territory). In Australia, our law students (etc) all seem to learn/be told that Australia is indeed that case, but my limited understanding of this is that despite what our not-very-expert-in-IL High Court said in Mabo (and irrespective of other virtues of that iconic decision), it was only retrospective justifications made by 19th C invader courts looking at criminal accusations against indigenous individuals, that may have suggested such a rationale for original British claims for formal or effective sovereignty .. can we really blame Blackstone? OK I should look at E Greenland, I will!!

Robin Churchill says

January 19, 2021

Dear Ríán.

I have read with interest your post and the ensuing comments and your response to them. I must take issue with some of your statements.

First, you appear to suggest that there was access for all EU vessels to the territorial sea around Rockall before Brexit. That was not the case. Under Art. 5(2) of Reg. 1380/2013 an EU Member State is entitled to restrict access to the 12-mile zone around its coast (for most Member States, that is the territorial sea) except for the stretches of coast listed in Annex I. The latter do not include Rockall.

Second, you suggest that a possible Irish claim to sovereignty over Rockall could be based on past historical exploitation of Rockall. Rockall is 624 m2 of bare rock. It has no resources that could be exploited, not even guano. You argue that exploitation of the resources around an island can be the basis for asserting title to that island and quote the Minquiers and Ecrohos case in support. I do not think that the case supports your argument. The éffectivités referred to by the ICJ as supporting its finding that the UK had title over the islands were all acts taking place on land (the exercise of jurisdiction over crimes committed on the islands, taxation of the huts and houses of fishermen located on the islands, and the holding of inquests into corpses found on the islands) (see [1953] ICJ Rep. at 65-6 and 69-70). Interestingly, the Court observed (at p. 59) that during the 19th century the parties did not regard their oyster fisheries around the islands as relevant to the question of sovereignty. Your view is also difficult to reconcile with the finding of the arbitral tribunal in the South China Sea case that in determining whether an island had an ‘economic life of its own’ for the purposes of Article 121(3) of the UN Convention on the Law of the Sea, ‘economic life must be oriented around the feature itself and not focused solely on the waters or seabed of the surrounding territorial sea’ (para. 543).

You refer to some recent practice but do not mention the 1988 Continental Shelf Boundary agreement between Ireland and the UK. Rockall is located on the UK side of this boundary. The agreement makes no mention of Rockall. It is difficult to see how Ireland could maintain a claim to Rockall when the seabed all around it is UK continental shelf.

Regards,
Robin Churchill

Ríán Derrig says

January 20, 2021

John and Robin, thank you very much for reading my post and for these thoughtful comments.

John, the terms I examine – ‘terra nullius’, ‘territory res nullius’, and ‘territorium nullius’ –came into use in the 18th and 19th centuries as a way of invoking an older tradition of debate over dispossession in colonial contexts based on the Roman law of the first taker (ferae bestiae). There are certainly examples of these legal principles being used to justify exploitation and subjugation of indigenous peoples by ignoring or invalidating their prior claims to territories. You might enjoy Andrew Fitzmaurice’s writing on this topic, as he connects a genealogy of these terms to the debate over Mabo that you refer to: https://www.tandfonline.com/doi/abs/10.1080/10314610708601228

Robin, first re EU law and the CFP, you are absolutely correct, and I have not argued the contrary. It seems clear to me however that the fact that both Ireland and the UK were members of this common legal framework had a mediating function in this dispute, allowing both states to maintain their view of the situation. Ireland could assert access to the sea around Rockall based on its view that the UK did not have sovereignty over the rock, and at least until 2017 the UK did not challenge the presence of Irish vessels. My observation is that as the UK has now left the EU legal framework, this dispute is pushed into the law of territory.

Second re historical exploitation, I don’t disagree with your careful reading of Minquiers and Ecrehos, except to make two observation concerning how the case resembles the Rockall dispute, and how it does not. First, the case is apposite to my argument in that the ICJ did engage in a consideration of historic bases for title stretching across several centuries. Among the acts the court considered of probative value in identifying assertions of sovereignty was the exercise of regulatory powers with respect to fishing boats. You are correct that oyster fishing activities were not considered to have such probative value, but this was because the court held that the UK and France did not themselves see these activities as linked to the question of sovereignty over the islands, the implication being that if they had seen them as so linked, they could have been considered. Second, the case is distinct from the Rockall dispute in that the islands in question were larger and capable of supporting land-based activities to a much greater extent than Rockall. It is logical the ICJ had more land-based activities to consider. Concerning the land-based activities we can observe on Rockall, it is worth noting that in Minquiers and Ecrehos the ICJ also expressly excluded from its consideration measures “taken with a view to improving the legal position of the Party concerned” ([1953] ICJ Rep at 59). It seems clear that many of the post-1955 acts on Rockall likely to be adduced by the UK government as effectivités have been of this character, and the government has tended to acknowledge as much in parliament and in public statements. Perhaps the most important distinction between the two disputes however is that as I noted above, the historical, anthropological and literary sources required to adequately appraise the Rockall dispute would necessarily broaden the range of activities indicative of title. As I have noted, an Irish argument concerning these sources would cohere with case law on ascertainment of indigenous titles to land in post-colonial contexts. The economic life requirement under art 121(3) LOSC is not relevant to my argument as it relates to the generation of EEZs and continental shelves, not territorial seas.

Third, the bilateral agreements between Ireland and the UK concerning delimitation of continental shelves and EEZs are absolutely an important point. However, they do not determine the question of territorial sovereignty over Rockall. It is also the case that were a tribunal to follow the argument I develop re the critical date being the date of annexation in 1955, which I consider likely based on the case law, these agreements would be irrelevant to the tribunal’s inquiry. Assuming they were considered as part of Irish state practice, I think two qualifications are important. First, as you correctly observe, these agreements were made specifically without reference to Rockall. Parliamentary records consistently record the Irish government’s explicit confirmation that this was a deliberate posture, reflecting their rejection of UK sovereignty over the rock. Second, from an Irish perspective they were bilateral agreements made based on an expectation of continued UK participation in broader legal arrangements, especially the EU’s CFP, which concretely altered the effect of the agreements. The ending of this participation on the part of the UK was not foreseeable when the agreements were concluded, which in my view would qualify their significance in any examination of territorial sovereignty over Rockall.

In case you might find it interesting, I examine the Rockall dispute in more depth in an article that is forthcoming in the next volume of the Irish Yearbook of International Law, ‘Was Rockall Conquered? An Application of the Law of Territory to a Rock in the North Atlantic Ocean’.