With Rockall appearing in the news recently, SPICe asked Dr James Harrison, an expert in International Law at the University of Edinburgh for his views on the recent disputes regarding fisheries access. As with all guest blogs, what follows are the views of the author, and not those of SPICe or the Scottish Parliament.
Introduction
It is remarkable that a small rocky outcrop, just over 17.5 metres high and 25 metres wide, situated almost 300 miles from the Scottish mainland, could cause so much trouble. Yet, Rockall has been at the centre of a dispute between the UK and neighbouring states since it was first claimed by Royal Warrant on 18 September 1955. There are different aspects to this dispute, which must be carefully unpacked to understand the current controversies surrounding fishing by Irish fishing vessels around Rockall.
UK rights to Rockall
Despite its size, Rockall falls within the international legal definition of an island (UNCLOS, Article 121(1)), namely:
‘a naturally formed area of land, surrounded by water, which is above water at high tide.’
As such, Rockall is clearly capable of appropriation by a state. As stated by the arbitrator in the Island of Palmas Case:
‘the continuous and peaceful display of territorial sovereignty … is as good as title’
and:
‘the manifestations of sovereignty over a small and distant island … cannot be expected to be frequent …’.
There is incontrovertible evidence that the UK has asserted its sovereignty over Rockall in a continuous manner since the initial landing from the HMS Vidal in 1955. It has done this by installing a warning beacon and officially incorporating Rockall into Scotland by way of the Island of Rockall Act 1972 and the transfer of Rockall to the Scottish Crown Estate in 2017.
Despite Ireland’s objection to the UK’s claim, neither Ireland nor any other state actually asserts sovereignty over Rockall, and so there is no contradictory state practice to weigh against the UK’s own claims. It follows that the UK has a very strong claim to sovereignty over Rockall itself. The more important question is what rights can the UK assert over the adjacent seas?
UK rights over the territorial sea surrounding Rockall
The Irish government not only challenges the UK’s sovereignty, but it also asserts:
‘Rockall and similar rocks and skerries have no significance for establishing legal claims to mineral rights in the adjacent seabed and to fishing rights in the surrounding seas.’
Yet, this assertation would appear to go beyond the accepted international legal position. The International Court of Justice has held repeatedly that states have:
‘a right to establish the breadth of its territorial sea up to a limit of 12 nautical miles, be that for its mainland or for islands under its sovereignty’
and
‘even the smallest island generates a 12 mile territorial sea.’
With the territorial sea comes the exclusive right to its resources, including fish stocks and seabed minerals. This right is further supported by the Common Fisheries Policy (CFP) of the European Union, which recognises that Member States may restrict access to their territorial waters, subject only to express arrangements between neighbouring states and the specific exceptions listed in Annex I of the Regulation.
As Rockall is not mentioned in any relevant arrangements or in Annex I, it is difficult to see how Irish vessels could claim a right to access on this basis. The only possible argument for Irish access to the waters around Rockall would be an assertion of historic fishing rights based upon long-standing practice.
It has been suggested in various news reports that Irish vessels have been fishing in the waters around Rockall for at least 20 years and the Scottish Government has itself admitted that there have been multiple ‘incursions’ in the territorial sea around Rockall for a number of years. In order to qualify as a historical right, however, it would be incumbent on Ireland to demonstrate that such a practice had endured for a significant period of time, dating back at least to the UK’s claims to establish a territorial sea around Rockall.
UK rights over the exclusive economic zone and continental shelf surrounding Rockall
The question of Rockall’s ability to generate other maritime zones is a different matter. In this regard, Article 121 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) makes a distinction between islands which can generate an exclusive economic zone (EEZ) and a continental shelf and
‘rocks which cannot sustain human habitation or economic life of their own.’
The latter are still islands, but they do not generate extended maritime zones. Historically, the UK argued that Rockall was fully entitled to an EEZ and continental shelf, but when it announced its accession to UNCLOS in 1997, the government modified its position and amended its fisheries limits to be based on St Kilda rather than Rockall.
At the same time, the UK made clear that redrawing the fisheries limits would have no effect on the continental shelf to the west of Rockall and the government maintains that the Rockall-Faroe plateau is a natural prolongation of the UK mainland. This claim is, however, disputed by other North-East Atlantic states, including Denmark/Faroe Islands, Iceland and Ireland, who all have competing claims over portions of the seabed in this area.
The map below shows the location of Rockall, and the extent of the UK’s territorial sea (purple shaded area) and EEZ (blue line). The green line shows the UK’s claim for the continental shelf area.
Source: UK Government
Disputes concerning sovereign rights in the region have prevented progress on delineating the outer edge of the UK’s continental shelf in the North-East Atlantic, which must be agreed by the Commission on the Outer Limits of the Continental Shelf, before a state can establish the final limits of their continental shelf beyond 200 nautical miles (see UNCLOS Article 76 and Annex II). Negotiations have been on-going for years, but a resolution does not appear to be imminent.
Brexit and Rockall
When the UK leaves the European Union, the rules relating to fishing around Rockall may change significantly. Once the CFP stops applying to the UK, EU vessels will no longer have automatic access to the UK’s EEZ and they will require special authorisation to continue fishing in this area.
However, any purported historic rights of Irish vessels in the territorial sea around Rockall, if clearly established, would continue following Brexit, as their basis would be international law rather than EU law. This may explain the recent revived interest in the area.
Nevertheless, it must be stressed that the coastal state is not powerless over fishing vessels exercising historic rights. As was noted by the Tribunal in the South China Sea Arbitration:
‘traditional fishing rights are not absolute or impervious to regulation and … [c]ustomary international law, in this respect, does not restrict the coastal State from reasonable regulation.’
Until the legal position is clarified, Rockall is likely to be the source of stormy waters for UK-Irish relations for the foreseeable future.
Dr James Harrison, Senior Lecturer in International Law, The University of Edinburgh