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UNITED KINGDOM
Baselines and Territorial Sea
Continental Shelf
Exclusive Economic Zone EIRE
Baselines and Territorial Sea
Continental Shelf
Exclusive Economic Zone DENMARK Denmark's interest in the Rockall Plateau area is based on its sovereignty over the Faroe Islands which lie to the north of the UK approximately half way between the Shetlands and Iceland. Although the Faroes were granted home rule in 1948, foreign affairs remain under the remit of the Danish government in Copenhagen.
Baselines and Territorial Sea
Continental Shelf
The boundary of the continental shelf in relation to foreign States whose coasts are opposite the coasts of the Kingdom of Denmark or are adjacent to Denmark shall be determined in accordance with article 6 of the Convention, that is to say, in the absence of special agreement, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each state is measured. Denmark did not designate any areas of continental shelf pertaining to the Faroe Islands until 1985 but when it did so, it did so in dramatic style. A communiqué issued by the Prime Minister's Office on 7 May 1985 announced the designation of not only the seabed in the immediate vicinity of the Faroes but also a vast area of the Rockall plateau to the south west. The press release which accompanied the communiqué indicated that the legal basis of this designation was the assumption that "the Faroe Islands are part of the microcontinent" formed by the "Faroes-Rockall Plateau", an "elevated plain with its summit in the Faroe Islands".
Exclusive Economic Zone ICELAND
Baselines and Territorial Sea
Continental Shelf Two days after Denmark set the cat among the pigeons with its continental shelf designation in May 1985, Iceland complicated the picture still further by claiming a vast tract of continental shelf which included not only the entire southern half of the Danish claim but areas to the south and west to which none of the other three countries had laid claim. The Icelandic legislation indicates how the outer limits of the claim were calculated and attempts to justify them in terms of the provisions of Article 76 of the LOSC.
Exclusive Economic Zone EIRE-UK CONTINENTAL SHELF AGREEMENT Despite the enthusiasm for median line boundaries in the various pieces of legislation listed above, particularly with regard to the EEZ and fishery zones, there is only one formal maritime boundary agreement between any of the four states, namely an agreement concerning the continental shelf boundary between Eire and the UK. The agreement was reached in November 1988 and followed nearly thirty years of negotiations and an abortive attempt in the early 1980s to have the boundary settled through arbitration. The agreed boundary consists of two discrete sections, one running 502 nm in a southwesterly direction from a point in the middle of the Irish Sea east of Drogheda, and the other running in a west-northwesterly direction for 634nm from a point approximately midway between Islay and the northeastern tip of Donegal. Both sections consist of a series of 'steps' – parallels of latitude and meridians of longitude joining a total of 132 defined points. The more southerly line is not really relevant to the area under consideration, but the line delimiting the boundary in what the Agreement describes as the "North-West Area" most certainly is. Although the British and Irish governments had, with the exception of one small area, been careful to avoid overlap between their continental shelf designations, the existence of a thin sliver of unclaimed continental shelf between the two designations was clearly not conducive to effective marine management. The 1988 agreement not only eliminated the area of dispute approximately 70nm west of Tiree but also 'closed the gap' between the two designations, thereby considerably simplifying the complex map of maritime claims in the area to the west of the British Isles. The precise methods used in determining the course of the boundary have never been revealed, although it is known that different criteria and different methods were used for different sections of the lines. To quote one UK negotiator:
...at some stage during these long and complex negotiations, every device that has been used in delimitations, and some that have not, were discussed and studied at length. What is clear is that the two sides adopted a pragmatic approach in order to achieve an equitable solution overall. The choice of stepped lines as opposed to straight lines is believed to have been influenced by a desire to accommodate the two countries' existing petroleum concession blocks.
EEZ/FISHERY ZONE OVERLAP Given that all four states' EEZ or fishery zone legislation indicates the use of a median/equidistance line to delimit the boundary with neighbouring zones where those zones overlap, in theory there should be no dispute over EEZ and fishery zone boundaries. In practice, however, this is not the case. In the north east Atlantic there is substantial overlap between the British and Irish fishery zones, and small (but by no means inconsequential) areas of overlap between the British and Danish fishery zones and the British fishery zone and the Icelandic EEZ. There are three reasons for this. The first problem arises from the fact that median lines are defined as lines "every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two states is measured". This means that if the states in question disagree over the baselines from which the median line should be measured, they will come up with different interpretations of what constitutes a median line. This explains the small area of overlap between the Faroe and Shetland Islands, where the UK has ignored the Danish straight baseline in the eastern Faroes between Munken and Fuglo. The second problem is the result of the UK's use of small offshore rocks and islets as basepoints for generating its 200nm claim. The chief culprit is Rockall, which is responsible the overlap with Iceland's EEZ, the westernmost of the three areas of overlap with the Danish fishery zone and the overlap with the Irish fishery zone west of 11° W. The use of a string of islets off the west and north coasts of Scotland has also led to an overlap between the British and Danish fishery zones between 11°35' W and 4° 45'W. Denmark and Iceland both reject the use of these features as basepoints for extended maritime claims on the grounds that, in legal terms, they are not islands but rocks – and therefore are not capable of generating continental shelf or EEZ (see section 2.5). In the case of Rockall, there is some question over whether the UK even has sovereignty over the feature (see section 6.1) but that is effectively a separate issue. The other three states have all argued that Rockall is not entitled to continental shelf or EEZ regardless of who owns it. Finally, the Irish Maritime Jurisdiction Order which defines the limits of the Irish exclusive fishery zone refers not to a strict equidistance line but to an "equitable" equidistance line. Exactly what the Irish government means by the term "equitable" is unclear, although it clearly involves adjusting the strict line of equal distance between the British and Irish straight baselines (as used by the UK out to 11° W) in Eire's favour. While it is not uncommon for strict equidistance lines to be modified to some extent, for example to reduce the impact of small offshore islands, the methodology used in a such modification is usually readily apparent; this cannot be said in the case of the Irish line between 57°34' N, 14°22'W and 55°25' N, 6°44'W defined in the 1976 Order. However the calculation was made, it certainly involved more than simply giving 'half effect' to some of the small uninhabited islands used in the construction of the British straight baselines. A second curious feature of this "equitable equidistant line" is that it extends beyond 200nm from Eire's baselines. Since Eire only claims a 200nm fishery zone, it is difficult to see what purpose this 'tail' with no area serves. CONTINENTAL SHELF OVERLAP As noted above, the LOSC entitles all coastal states to claim 200nm of continental shelf regardless of the configuration of the seabed. Despite the extensive claims to continental shelf made by all four states in the Rockall Plateau region, it is worth noting that, in general, great care has been taken to avoid making continental shelf claims beyond the line which other states consider to mark the outer limit of their 200nm zones as defined in their EEZ or fishery zone legislation. For example, although the UK and Denmark disagree over how the median line between Scotland and the Faroes should be calculated, neither country's continental shelf designation crosses the other's version of the median line. Similarly, Iceland's massive continental shelf claim is in part defined by the line lying 200nm from the British, Irish and Danish straight baselines. Thus although the claims are ambitious, they are neither reckless nor quite as outrageous as they might at first appear. There are a couple of exceptions to the above rule, the most obvious being the UK's 200nm zone around Rockall, which has been ignored not only by Denmark and Iceland in their continental shelf designations, but also by the 1988 Eire-UK continental shelf boundary agreement. Iceland's interpretation of the UK's 200nm continental shelf entitlement also takes no account of St Kilda, which the UK also uses as a basepoint for calculating its 200nm zone. In general, however, the overlap between the continental shelf claims represents a scramble for that part of the continental shelf which lies more than 200nm from all four states. When the claims are superimposed there are two large areas of trilateral overlap (Denmark/Iceland/UK and Denmark/Eire/Iceland) and three areas of bilateral overlap (Denmark/Iceland, Eire/Iceland and Iceland/UK).
Since Eire and Iceland are now both party to the LOSC, evaluating their maritime claims is a relatively straightforward process, the key question being: do their claims conform to the rights and obligations set out in the 1982 Convention? Denmark and the UK present more of a problem. They are not technically bound by the LOSC, yet their fishery zone claims (and the UK territorial sea claim) are clearly based on its provisions. It is difficult to see how they can have it both ways. Quite how this tension would be resolved by a legal authority such as the International Court of Justice is difficult to predict, although it is almost certain that the LOSC would be given precedence at every opportunity. Bearing this in mind, we offer the following comments. FISHERY ZONES Since the concept of the 200nm EEZ did not exist prior to the LOSC, it would seem reasonable to judge Denmark and the UK's fishery zones within the framework of the LOSC. In this context, the UK's use of Rockall as a basepoint for its claimed fishery zone would appear to be in trouble. There is little question that Rockall is unable to sustain human habitation or economic life of its own. It is tiny (approximately 24m high and 30m in diameter), has no fresh water and, in the words of one commentator, it has "the dubious distinction of being further out to sea than any other rock of the same diminutive size to be found in all the world". For those who would argue that food and water could be airlifted out (it is notoriously difficult to land on Rockall by boat), it is worth noting that an ex-SAS officer attempted to spend two months on the island in the summer of 1985 but was forced to cut his stay short due to atrocious weather conditions! In short, it is hard to imagine a more classic example of a legal rock than Rockall. Denmark, Eire and Iceland all protested the Rockall-based claim on the grounds that it contravened Article 121 of the LOSC and the UK has yet to justify its action, at least in public. The same argument applies to the islets used by the UK as basepoints for its EEZ claim between northern Scotland and the Faroe Islands. Although St Kilda, Sule Skerry et al. are considerably closer than Rockall to mainland Scotland, proximity to the mainland is not a criterion used to distinguish islands from rocks under the LOSC. In legal terms, it is difficult to see how these features are anything other than rocks, in which case, under the LOSC they are not entitled to continental shelf or EEZ of their own. If Denmark's decision to discount the aforementioned offshore features in calculating the median line is understandable, the UK's apparent decision to ignore Denmark's straight baseline on the eastern side of the Faroes is a little more problematic. It is true that the Danish straight baselines are perhaps a little on the indulgent side – for example, it would seem to be more reasonable for the baseline between Munken and Fuglo to be broken into two segments meeting at the southern tip of Nolsoy – but the same could be said for the British straight baselines around the Hebrides, which make use of a number of tiny offshore rocks such as Skerryvore and Dubh Artach when it would probably be more appropriate to use the outer tips of larger islands such as Iona and Tiree. It is not so much that the UK has no right to challenge the Danish straight baseline; rather, it would appear to be a case of the pot calling the kettle black. Although the Irish fishery zone line stretching from the North Channel to just west of Rockall appears to be fairly idiosyncratic, there is nothing illegal about it. For although the LOSC specifies that, in the absence of agreement, the territorial sea boundary between two or more states is the median line, for continental shelf and the EEZ it simply calls upon states to reach "an equitable solution" without defining what is meant by the term "equitable". Although the Irish fishery zone legislation does not make clear how the line in question was calculated, it does describe it as an "equitable equidistant line". Until Eire explains its methodology, it is difficult to comment on the validity of this line, although it is almost certainly a line drawn for negotiating purposes rather than a true reflection of what Eire believes it is entitled to. CONTINENTAL SHELF When considering claims to continental shelf, it is important to remember that the outer limits of a designation are not necessarily the outer limits of a state's claim. Of the four states concerned, only Iceland has formally defined its claim. The other three could, in theory, designate additional areas of continental shelf in the future. In practice this would appear unlikely although, as deep-water drilling becomes increasingly viable, it cannot be ruled out altogether. For the purposes of this report, however, we will assume that the limits of the existing designations beyond 200nm reflect the states' actual claims to continental shelf. All four states' claims exceed 350nm from their baselines by a considerable margin. In the case of Denmark and the UK, this is not a major problem, since the 1958 continental shelf convention does not specify an upper limit for continental shelf claims. For Eire and Iceland, however, this means that to be in compliance with Article 76 of the LOSC their claims may not extend more than 100nm from the 2,500m isobath. From the chart, it would appear that the Irish designation comfortably falls within this limit but the outer fringes of Iceland's claim would seem to contravene this requirement. The Icelandic regulation of June 1985 which defines the continental shelf claim indicates that in these areas the outer limit is marked by the line 60nm beyond the foot of the continental slope; while this is indeed one of the definitions of the outer edge of the continental margin defined in Article 76, this line cannot be used more than 100nm from the 2,500m isobath. Thus it can be argued that, at least in parts, the Icelandic continental shelf claim violates the rules laid down in the LOSC. However, even if Iceland contracted its claim to the legal limit, it would have little or no impact on the area subject to overlapping claims. The core of the problem is not that one or more of the states has ignored the rules of international law but that each state uses different criteria to define area of the continental margin that 'naturally' pertains to it on geological and geomorphological grounds. They cannot all be right but, at the same time, nor is it easy to discount any of the claims completely. There is considerable debate among geologists concerning topics such as the geological origin of the crust below the Rockall Trough and whether (as Denmark claims) the Rockall Plateau is a geologically distinct 'microcontinent' and there are pros and cons to each of the four claims. A full description of the geological arguments is beyond the scope of this report but it is clear that any attempt to resolve the dispute purely on the grounds of 'natural prolongation' would be extremely controversial to say the least. In light of the above problem, the establishment of the Commission on the Limits of the Continental Shelf is welcome news. Within the next ten years Eire must define what it considers to be the outer limits of its continental shelf and, along with Iceland, submit its claim for approval by the Commission. Although the Commission is not empowered to delimit boundaries between overlapping claims or even to force a particular outer limit line on individual states, its existence will at least force states (at least those which are party to the LOSC) to gather accurate data about their seabeds which will prove invaluable in negotiations over how to divide the disputed areas. If there is ever to be a full settlement of the dispute over continental shelf rights, however, it is much more likely that it will be reached on the basis of an equitable distribution rather than on geological and geomorphological arguments. Despite the justifications put forward by Denmark and Iceland for their claims, it seems likely that their actions in 1985 were more to do with tactics than with realistic expectations. It is a basic principle of negotiation to ask for more than you expect to secure, and then gradually 'sacrifice' some of your original claim until you settle for a 'compromise' which is actually what you really wanted in the first place. Whether Eire and the UK – whose reaction to the Danish designation and Icelandic claim was to 'up the ante' by reaching a formal continental shelf boundary agreement – will accept a compromise that involves only a minor retreat on the part of Denmark and Iceland is difficult to predict. If the basis for negotiations is the desire to achieve an equitable solution, Denmark in particular will be hard pressed to sustain much of its claim beyond 200nm: compared to the other three states the Faroe islands are so small, both geographically and in terms of population, that it is difficult to see how it would be equitable for them to give rise to jurisdiction over virtually the entire Rockall Plateau.
SOVEREIGNTY OVER ROCKALL The remote, barren island of Rockall was annexed by the UK in 1955 when a British navy expedition landed on it by helicopter, planted a British flag and cemented in a bronze plaque claiming it for the British Crown. Archival material suggests that the motive for this annexation was purely military: the British government was considering setting up a guided weapons training range on the Hebridean island of South Uist and it wanted to forestall the use of Rockall as a spying base by a hostile power (presumably the Soviet Union). Subsequent to this formal annexation, the UK has reinforced its claim to the island in a number of ways ranging from including Rockall as part of Scotland for legal and administrative purposes to installing a light beacon on the island and arranging an annual visit by the British navy. This activity has resulted in the UK claiming that there is "no doubt" that Rockall falls under its jurisdiction, a claim reinforced by the contention that none of the other claimants to the Rockall seabed (i.e. Denmark, Eire and Iceland) has ever denied British sovereignty over Rockall itself. It is certainly true that none of the other three states has ever laid formal claim to Rockall, but whether this means that they actually recognise British sovereignty is another matter. Eire, which is home to an eccentric but vociferous pressure group which claims that Rockall belongs to Eire, freely admits that it did not protest either the annexation or legal incorporation of Rockall, but occasionally indicates that the sovereignty question has yet to be settled. One official statement following the 1988 continental shelf agreement (which made no mention of Rockall) went even further:
...successive [Irish] Governments have rejected purported British sovereignty over the rock and the present Government continue to reject this British claim. Neither Denmark nor Iceland appears to have had a great deal to say about the sovereignty question one way or the other. The Danish press release which accompanied Denmark's 1985 continental shelf designation did say that "Denmark does not contest the sovereignty claimed by the United Kingdom over the Rockall skerry" but it is not clear to what extent this represents official government policy. Some academic commentators suggest that Denmark, Eire and Iceland all actively claim Rockall but this is probably going too far. What can be said is that none of the three has formally recognised British sovereignty. This reluctance to accept the de facto situation is presumably related less to a desire to secure Rockall for themselves (given the UK's actions towards Rockall over a prolonged period, it is almost inconceivable that another state could demonstrate a better claim to it) than to a determination to undermine the UK's continental shelf and fishery zone claim as much as possible. Although they already have a strong case against such a claim on the grounds that Rockall should legally be considered a rock rather than an island, casting doubt on the UK's right to make any kind of jurisdictional claim off Rockall can only strengthen that case.
Boundary delimitation is rarely a simple process even when only two states are involved and there is little overlap between their claims. When there is considerable overlap between the claims of four states, the likelihood of a swift resolution is virtually nil. Indeed, in the history of maritime boundary delimitation, no dispute of the complexity of the one under consideration has ever been fully resolved. It is rare enough to get four claimants to agree to talk, let alone to agree on a solution. The Rockall Plateau dispute is no exception in this respect: to date, the only negotiations that have taken place concerning overlapping claims have been on a strictly bilateral basis and there is no sign that four-way talks are on the agenda. This is not to say that bilateral negotiations are a complete waste of time, as the Eire-UK continental shelf agreement demonstrates. Although in terms of reducing the area under dispute it represents only a small step, in other ways it is very significant. Firstly, it demonstrates the need for patience and the value of perseverance: from start to finish the negotiation process took over twenty-five years and there must have been times when progress seemed impossible. Secondly, it reveals a willingness on the part of both sides to compromise and to pursue pragmatic solutions. The UK in particular had previously tended to adhere to strict median lines solutions, which created very little room for manoeuvre during negotiations. Whether such pragmatism will be applied elsewhere, for example in the ongoing negotiations between the UK and Denmark over their continental shelf boundary, remains to be seen, but it is at least an encouraging sign. Given the complexity of the dispute, some commentators have argued that the only chance of real progress is four all four parties to submit the case to the International Court of Justice or a specially formed arbitral body. Although Denmark, Iceland and the UK have all resorted to third-party settlement in the past and Eire has at least agreed to the principle of binding arbitration, there appears to be little inclination to seek an imposed settlement in this instance. A 1980 resolution by the Icelandic parliament did indicate a willingness to seek arbitration concerning Iceland's continental shelf boundary with that of the Faroes but nothing appears to have come of it and there is certainly no indication that Iceland is pursuing such a strategy vis à vis Eire and the UK as well. An alternative that has worked with some success in other disputes is for the parties to set aside their competing claims and agree to develop the resources of the disputed area together. Although such arrangements are usually temporary in nature and do little in themselves to solve the underlying problem, they not only unlock the natural resources in the disputed area but, since they require the disputants to work together, they can also help to build confidence between them – an invaluable asset in terms of future negotiations. Both Iceland (in its 1981 boundary agreement with Norway) and the UK (in its 1995 cooperation agreement with Argentina) have demonstrated a willingness to enter into joint development arrangements where appropriate. Iceland also raised the possibility of "joint jurisdiction" in its 1980 resolution concerning its continental shelf boundary with Denmark. However, while there are many advantages to joint development zones, it is notoriously difficult to set up fiscal and legal regimes that meet with the approval of the relevant governments, even when only two states are involved. As yet, no joint development area has been established which involves more than two countries, and there appears to be little enthusiasm to use the Rockall Plateau as a testing ground for such a project. This does not mean that joint development has been ruled out completely, however, at least in a bilateral context. During conversations between IBRU staff and a member of the British team currently discussing maritime boundary issues with the Danish and Faroese governments, it was revealed that the UK considers joint development to be preferable to litigation, which tends to be time-consuming and extremely expensive. However, a formal boundary agreement is still considered far preferable to either. Generally speaking, while states are rarely happy to find themselves in dispute with their neighbours over rights to maritime areas, as long as the disputed area is not of direct strategic or economic value they are often content to maintain the status quo (which usually involves expansive claims by all parties concerned) rather than rush into a hasty compromise agreement which they may later regret. For this reason, it seems unlikely that there will be any significant moves to break the deadlock over the Rockall Plateau in the near future. Should exploitable oil reserves be found in the area, however, this can be expected to change quite quickly. This is exactly what has happened between Denmark and the UK, where the recent discovery of oil close the disputed median line between Scotland and the Faroes has brought a new urgency to the ongoing boundary negotiations between the two countries. Although problems rarely disappear overnight, the bottom line seems to be that solutions are found more quickly as the economic stakes rise.
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