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International Boundaries Research Unit Report submitted to Greenpeace UK September 1996 Contents: Prospects for dispute resolution Annexes
Although other boundary and territorial disputes may make more headlines, the dispute over rights to maritime space in the north east Atlantic Ocean involving Denmark, Eire, Iceland and the UK is almost unique in both its scale and complexity. Apart from the tangled web of jurisdictional disputes in the South China Sea, very few other maritime areas are subject to so many competing claims covering such large areas and, although the dispute is unlikely to threaten the generally peaceful relations between the four states involved, it is still of considerable significance in terms of the management and exploitation of natural resources in the region. Given the complexity of the dispute, it is beyond the scope of this report to provide a definitive analysis of every aspect of the various claims to sovereignty and maritime jurisdiction in the Rockall Plateau area. The aim of this report is to provide a general introduction to the dispute, outlining the nature of the claims of the four states involved and setting them in the context of the law of the sea. This description is complemented by a preliminary evaluation of the claims and a discussion of the prospects for a resolution to the dispute. All the claims discussed in the report have been plotted on a 1:3,500,000 British Admiralty chart which has been sent under separate cover.
The body of international law commonly known as the 'law of the sea' consists of a large number of international agreements and conventions dealing with a wide range of maritime issues. Foremost among these is the 1982 United Nations Convention on the Law of the Sea (LOSC) which finally entered into force in November 1994 following the deposition of the sixtieth instrument of ratification or accession. The LOSC covers virtually every aspect of international maritime law and was designed to update and amalgamate a number of earlier multilateral maritime conventions, including the 1958 Geneva conventions on the territorial sea, continental shelf, high seas, and fishing and living resource conservation. However, as is often the case with all-encompassing agreements, many states are unhappy with at least some of its provisions and have refused to ratify it. Some states, including the United Kingdom, have not even signed it. States which have not ratified the LOSC are not technically bound by the limits and obligations defined therein, although an increasing number of its provisions have now become accepted as customary international law and contradictory practice is becoming increasingly difficult to defend. This is particularly true in the area of maritime jurisdiction and boundary delimitation, where the rules and principles codified in the LOSC invariably form the basis for judgements handed down by the International Court of Justice and international arbitration tribunals. As a result, the Convention almost always provides the framework for maritime boundary negotiations, even when states do not formally accept its authority. Unfortunately, although the LOSC may provide a widely accepted framework for maritime boundary delimitation, it is not always as helpful as it might be. In a number of key areas, particularly with regard to boundary delimitation, it employs terms which are not properly defined, and disagreement over the interpretation of these terms is probably the principal cause of disputes over boundaries and zones of jurisdiction at sea. Of the four states with overlapping claims in the Rockall Plateau area, Denmark, Eire and Iceland all signed the LOSC on 10 December 1982, the day on which the final text of the Convention was opened for signature. Iceland ratified the Convention on 21 June 1985, Ireland on 21 June 1996. Denmark has yet to ratify the LOSC and the UK has yet to sign it. Denmark and the UK are, however, party to the 1958 conventions, although Eire and Iceland are not. In terms of rights to maritime sovereignty and jurisdiction, there are many similarities between the 1958 conventions and the 1982 LOSC, although there are some important differences as well. These are outlined in the following sections. Baselines Baselines are significant for two reasons: firstly they define the line from which a state's claims to maritime jurisdiction and maritime boundaries are measured; secondly, they mark the outer limit of the state's internal waters. There is very little difference between the provisions for baselines in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone and those in the LOSC. Indeed, the 1958 provisions are repeated almost verbatim in the LOSC. The only difference between the two is that the 1982 Convention contains a couple of additional provisions, neither of which has any bearing on the dispute under consideration. Both conventions state that, in the absence of certain special geographical circumstances, a state's baseline (the "normal" baseline) consists of the low-water line along its mainland and island coasts. However, both conventions allow for straight baselines to be declared where the coastline is "deeply indented and cut into" or where there is "a fringe of islands along the coastline in its immediate vicinity". A straight baseline may also be drawn across the mouth of any bay whose "penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast". Territorial Sea and Contiguous Zone Although territorial sea and contiguous zones do not really enter into the dispute under consideration, it is worth noting that while the LOSC states that the territorial sea cannot extend more than 12 nautical miles (nm) from the baseline, the 1958 Convention did not specify an upper limit for territorial sea claims. In the territorial sea the coastal state has the same rights as it has over its land territory and internal waters with the exception that in the territorial sea the state is not permitted to restrict the innocent passage of ships from other states. Continental Shelf The 1958 Geneva Convention on the Continental Shelf gave state parties the right to claim sovereign rights for the purpose of exploring the continental shelf (i.e. "the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea") and exploiting its natural resources
...to a depth of 200 metres or, beyond that limit, to where the depth of the superadjacent waters admits of the exploitation of the natural resources of the said areas and to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands. The LOSC granted the same sovereign rights but defined the maximum allowable claim differently. Paragraph 1 of Article 76 of the LOSC states that:
The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. In cases where the continental margin extends beyond 200nm from the baselines, the maximum allowable claim depends upon the geology and geomorphology of the margin. In most circumstances, the upper limit for a continental shelf claim is 350nm from the baselines, although where the line 100nm beyond the 2,500m isobath lies seaward of the 350nm line, that may be used instead. States wishing to claim continental shelf beyond 200nm must have their claim approved by the UN-convened Commission on the Limits of the Continental Shelf. Since the Commission is still in the process of being set up, it is not yet clear what the requirements for demonstrating natural prolongation will be, but it will be a demanding task. The full text of Article 76, which contains detailed provisions for establishing the outer limit of the continental shelf, is attached in Annex 1. Exclusive Economic Zone In terms of zones of maritime jurisdiction, the exclusive economic zone (EEZ) is the baby of the family, having only been introduced in the 1982 LOSC. However, its impact has been significant to say the least. Coastal states party to the LOSC are entitled to claim an EEZ extending up to 200nm from the baselines from which the territorial sea is measured in which the state has:
This clearly represents a major extension of the rights of coastal states in their offshore areas compared to the entitlements granted in the 1958 conventions, which specified that all parts of the sea outside a state's territorial sea and internal waters were to be considered high seas. It is also worth noting that since the EEZ also includes "the seabed and its subsoil", states whose continental shelf does not extend beyond 200nm have little to gain from claiming continental shelf in addition to an EEZ. Regime of Islands Both the 1958 conventions and the LOSC indicate that offshore islands may be used to generate claims to maritime sovereignty and jurisdiction in the same way as the mainland coast. However, the LOSC introduced an important distinction between "islands", which can be used to generate a full suite of maritime zones and "rocks", which are not entitled to continental shelf or EEZ. The distinction between an island and a rock as defined by the LOSC is that rocks "cannot sustain human habitation or economic life of their own".
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