"Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf" – UN Convention on the Law of the Sea (1982), article 121, paragraph 3.
The idea that Ireland regards as part of its territory the tiny clump of rocks known as Rockall, 420km northwest of Co Donegal, is a popular misconception – flag-planting on the rock by brave, patriotic souls notwithstanding.
At issue in the dispute with Scotland that has flared in the past few days over fishing rights around the rock is precisely the contention that, in international law, no one owns, or can own, Rockall.
Irish lawyers and diplomats have maintained that nothing as insubstantial or uninhabitable as Rockall can be said to constitute a national territory in any meaningful sense. And particularly in the sense of such a status bestowing economic rights. Irish diplomats successfully fought hard to establish the principle (see clause above) in international law at interminable UN meetings on the drafting of the 1982 Convention on the Law of the Sea.
As Tánaiste Simon Coveney told the Dáil in 2016: "While Ireland has not recognised British sovereignty over Rockall, it has never sought to claim sovereignty for itself.
“The consistent position of successive Irish governments has been that Rockall and similar rocks and skerries have no significance for establishing legal claims to mineral rights in the adjacent seabed or to fishing rights in the surrounding seas.”
Equal access
In that light the Government has always insisted that the waters around Rockall form part of European Union waters under the Common Fisheries Policy, to which the principle of equal access for the vessels of all EU member states applies.
Irish vessels have operated unhindered in the Rockall zone for many decades, fishing haddock, squid and other species.
"Fishery rights and entitlements in EU waters are decided under the Common Fishery Policy," says lawyer Ronán Long, director of the Global Ocean Institute at the World Maritime University in Sweden. "However, a member state may restrict fishing in its 12-mile territorial sea until the end of 2022 to 'fishing vessels that traditionally fish in those waters from ports on the adjacent coast'."
Denmark, Iceland and Ireland had protested against the use of Rockall as a base point for the British fishery zone established in 1977. The UK claimed sovereignty over the rock and sought formally to annex it under its 1972 Island of Rockall Act. But when it signed up to the Law of the Sea Convention in 1997, it appeared that London had accepted implicitly that Rockall was not being seen as a base point.
Since then there has largely been silence on the issue between London and Dublin, but the message may not have got through to Edinburgh, which sought to make the alleged fishing rights around the rock an issue in 2017 after the Brexit referendum.
Scottish breach
The Scottish move also has implications for Brussels. The Common Fisheries Policy extends access rights for all EU fishing boats to all EU waters that are not covered by the 12-mile territorial exemption. If Rockall, as the Irish contend, does not have its own territorial waters, then the area is simply part of the common fishing zone and Scottish attempts to exclude any boats are a breach of the Common Fisheries Policy.
The European Commission on Monday batted away questions about its role in enforcement, hoping that the issue would go away. If it ends up in court, officials in Brussels and in Dublin confess to bewilderment about which international court would have the appropriate jurisdiction – there's the Court of Justice of the European Union in Luxembourg, the UN's International Court of Justice in the Hague, and the International Tribunal for the Law of the Sea in Hamburg. You pays your money and takes your choice.
Meanwhile, there is the not insignificant issue of the sharing of the continental shelf.
In 1988, the Republic and the UK reached agreement on the delimitation of areas of the continental shelf between the two countries, stretching out up to 500 nautical miles from their respective coastlines.
This included the division of the large Hatton-Rockall area of continental shelf on which Rockall is situated, although under the terms of the Law of the Sea convention the location of Rockall was irrelevant to the determination of the boundary.
That agreement is supposed to be ratified by the UN Commission on the Limits of the Continental Shelf, but opposition from Denmark (on behalf of the Faroe Islands) and Iceland has blocked ratification despite regular meetings of all four countries since 2001.