Irish spokesmen in the dispute with the Scots about the right of Irish vessels to fish near Rockall seem strangely oblivious to the basic maxim of good advocacy that if you have a good point, you don’t undermine your credibility by making bad points.
It is nonsense denying the British title to the rock itself. In international law ownership of territory is achieved by taking possession with the intention of exercising sovereignty. The United Kingdom government seized Rockall in 1955. They incorporated it into Scotland by legislation in 1972. The Irish government made no protest at the time, nor have they ever proposed legal proceedings or arbitration to contest the issue.
In the 1970s minister for foreign affairs Garret FitzGerald effectively conceded the British claim to the island itself, saying that the Irish position was that it had no consequences for maritime jurisdiction. Fianna Fáil spokesmen, true to their tradition of using verbal anti-British defiance as a camouflage, continued to dispute Britain's entitlement while shying away from legal action to resolve the matter. It is disappointing to find a Fine Gael Minister now emulating them.
The second nonsense is to deny that ownership of Rockall confers title to a 12-nautical-mile territorial sea around it. The UN Convention on the Law of the Sea, to which Ireland has adhered, is clear that islands – defined as any naturally formed area of land that is above water at low tide – generate a territorial sea of 12 nautical miles.
At the diplomatic conference leading to the law of the sea convention the Irish delegation withdrew a proposal that would have denied any maritime space whatsoever to uninhabitable islands and joined in proposing the article adopted. That article, it should be added, also provided that rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. But that refers to the area beyond their territorial sea and did not abrogate their right to a territorial sea.
Fisheries policy
The one good point on which Irish spokesmen can rely is that the EU Common Fisheries Policy precludes the United Kingdom from operating an exclusive fisheries zone in its territorial sea around Rockall. As originally formulated in 1970, the Common Fisheries Policy gave fishermen of member states total access to all the waters of member states. But under pressure from the Irish and British governments, it has been modified by a Council Regulation authorising member states to restrict fishing in waters within 12 nautical miles of their coast to “fishing vessels that traditionally fish in those waters from ports on the adjacent coast”.
This proposal would have brought a large area of the Rockall Plateau within Irish jurisdiction
As Scottish vessels do not fish from ports on Rockall, which is the adjacent coast, they are clearly not entitled to restrict fishing in the 12 nautical miles around Rockall to those vessels and so exclude others.
More menacing to Irish fishermen than the access to the waters within 12 nautical miles of Rockall now being disputed is the post-Brexit situation. The United Kingdom will have total discretion to exclude from its 200-nautical-mile exclusive economic zone the vessels of other states. By an agreement made in 1988 that related to the continental shelf, the Irish government conceded that a large part of the Rockall Plateau, and not just the area immediately adjacent to Rockall itself, is under British jurisdiction. This provided the template for fisheries under the agreement for the division of the exclusive economic zones of the two countries concluded in 2014.
Rather than submit the matter to legal adjudication or independent arbitration, the Irish government abandoned their original position formulated in 1973 that there should be an equidistance line of division taking no account of small or uninhabited offshore islands. This proposal would have brought a large area of the Rockall Plateau up to the territorial sea of Rockall itself within Irish jurisdiction. No reasoned legal justification for this concession has ever been given. Nor were maps ever produced showing the substantial area conceded.
It was in line with this policy of obfuscation that the 2014 agreement on the boundary between the exclusive economic zones of the two countries, which made some variations in the line agreed in 1988, was not submitted to the Dáil for its approval.
In a post-Brexit era Irish fishermen with an interest in fishing on the Rockall Plateau will be among those who will lose out.
Charles Lysaght was a legal adviser at the Department of Foreign Affairs from 1970 until 1978 and a member of the advisory group chaired by Ken Whitaker set up in 1991 to review the Common Fisheries Policy