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.