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Tuesday 23 July 2019

Why the law is Scotland's call on Rockall

Rockall is like no other rock, being so far from land and so small yet permanently above high tide
Rockall is like no other rock, being so far from land and so small yet permanently above high tide

Lorna Siggins

WHEN two Scottish fishery inspectors were "kidnapped" by a Donegal vessel after they boarded it off Rockall, it made none of the headlines that were generated this week in the latest spat over the rock.

That was back in 1994, when skipper Gerry Lafferty's decision to steam for Killybegs, Co Donegal, with the two shocked inspectors resulted in a high speed north Atlantic chase at sea.

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Lafferty had challenged an instruction to proceed to the nearest Scottish port for an alleged minor fishery offence.

Diplomacy won out after the Department of Foreign Affairs intervened, and the two officers were returned to their mother ship.

Over the past week, there may be skippers who might feel like kidnapping certain Irish politicians speaking volumes about Rockall - given that Ireland actually has "no case" against Scotland, according to several international maritime law experts.

Since Scotland warned that it would enforce a 12-mile limit around Rockall from June 7, Minister for Foreign Affairs Simon Coveney and Minister for Fisheries Michael Creed have challenged its right to do so.

Both ministers have pointed to Article 121 of the UN Convention on the Law of the Sea which states that "rocks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf".

However, the politicians are misinformed, according to maritime lawyer and Rockall expert Prof Clive Symmons of Trinity College Dublin.

Both he and Prof Ronán Long, who is ocean governance and law of the sea chair at the World Maritime University, explain that rocks can generate 12-mile territorial sea limits under the same UN convention.

In other words, Ireland "doesn't have a leg to stand on" if Scotland seeks to enforce the rules, Prof Symmons says

In 2013, Ireland and Britain agreed to a "median line" between two exclusive economic zones, which included Rockall in Britain's section, having first agreed a "delimitation" in 1988. As Prof Symmons says, the rock and access to its continental shelf resources and fishery rights are separate issues which the politicians have been confusing in their various statements.

Rockall was a "Cinderella" subject here for many years, and Irish politicians have had little interest in maritime law, with only four politicians in the Dáil during a debate lasting all of one minute to approve ratification of the UN Law of the Sea Convention, he recalls.

"When Britain first claimed Rockall in 1955, it followed this up with a Navy light, a plaque, a flag, a light beacon, and these were all administrative acts," Prof Symmons explains.

Ireland's Silence

Ireland "acquiesced" with a silence which was only occasionally broken by more informed legislators like the late Labour energy minister Justin Keating. After the British general election of 1997, a Labour-led government pulled back from its original 200-mile zone claim around Rockall, agreeing that the more easterly islet of St Kilda should be used for its basepoint to suit the UN Law of the Sea convention.

"Ireland may not have accepted Britain's claim, but it never challenged it, and Scotland has been administratively responsible for the islet under the 1972 Island of Rockall Act which makes it part of Invernesshire," he explains. "So Ireland's case at international level is very weak."

Fisheries access is governed by the EU Common Fisheries Policy (CFP), for as long as Britain, or Scotland, or both remained signed up to it - and this issue may flare up again when Britain leaves the London Fisheries Convention, which preceded and was incorporated into the EU management framework.

Under the CFP, quotas apply outside 12 miles, but there may be "traditional rights" within six to 12 miles. However, Prof Symmons says Rockall was not explicitly included, and so this could be the subject of challenge.

The separate legal issue involving continental shelf claims and access to oil and gas resources made by Britain, Ireland, Denmark, on behalf of the Faroe islands, and Iceland is still before the UN and won't be decided for some time.

Meanwhile, the wealth below the Atlantic - from unusual coral to baby shark nurseries - is reflected in the extraordinary finds made by Irish research vessels on missions west along the Porcupine and up to sections of the Rockall Bank.

Rockall is like no other rock, being so far from land and so small yet permanently above high tide, Prof Symmons says.

Prof Long and Prof Symmons believe there will be more of these types of disputes - both here and across the globe, as competition for marine resources intensifies. Last summer, stones and smoke bombs were hurled in the English channel in a row between English and French vessels over scallop beds.

An informal "voisinage" agreement between Ireland and Northern Ireland has already led to a bitter row between the fishing industry and the Government. Against industry advice to wait until after Brexit, Minister for Fisheries Michael Creed formalised "voisinage", permitting British/Northern Irish vessels to fish within Ireland's six-mile territorial limit, at a time when Ireland's fleet faces exclusion from British waters.

The solution to the current dispute may involve a "Rockall box", where a limited number of Irish vessels are allowed fish within 12 miles of the islet. This will be Scotland's call, however, Prof Symmons says.

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