Rockall and the limits of national jurisdiction of the UK

Rockall and the limits of national jurisdiction of the UK Part 2

E.D. Brown

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Professor Brown is indebted to Dr Hance Smith for compiling, and to Huw Dobson and Alun Rogers for drawing, the maps included in this article. “Rockall and the limits of national jurisdiction of the UK - Part 1’. Marine Po/icy.Vol2.N03,1978,pp181-211.

0308-597X/78/040275-29

Part 1 of this article was devoted to an analysis of the rule of international law governing the delimitation of ‘the area within the limits of national jurisdiction’ of the UK.’ For the purposes of this study, ‘the area’ was defined to include not only the British continental shelf and exclusive fishing zone, to which claims have of course already been laid, but also the exclusive economic zone (EEZ) which the UK may well claim in the future. This part consists of three main sections. In section II, the earlier legal analysis in section I is complemented by an inquiry into the geography and geology of the area. This is followed in section III by an examination of the claims made by the UK, Ireland and Denmark in the light of the rules analysed in section I and the geographical and geological information provided in section II. Finally, conclusions are presented in section IV. Since Part I was written, the Third United Nations Conference on the Law of the Sea (UNCLOS III) has held a Seventh Session in Geneva (28 March to 19 May 1978). Before turning to a survey of the geography and geology of the Rockall Sector, it is necessary, therefore, to supplement section I with a brief report on the outcome of this Session.

$02.00

Seventh Session of UNCLOS

III

Although both the definition of the outer limits of the continental shelf and the delimitation of maritime boundaries between adjacent and opposite states were identified as ‘hard-core issues’ and were intensively considered by Negotiating Groups 6 and 7,* final formulae had still not emerged at the close of the Seventh Session and negotiations will continue at the four-week Eighth Session which will meet in New York on 21 August 1978 (time of writing: June 1978). The debate on the outer limit concentrated mainly on the ‘Irish formula’, originally tabled at the Fourth Session of the Conference3

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Rockall and the limits of rlational jurisdiction of the UK: Part 2

2 Negotiating Group 6 was established to consider ‘Definition of the outer limits of the Continental Shelf and the question of payments and contributions with respect to the exploitation of the continental shelf beyond 200 miles’ and ‘Definition of the outer limit of the continental shelf and the question of revenue sharing’. Negotiating Group 7’s terms of reference were: of maritime boundaries ‘Delimitation between adiacent and opposite States and settlement of disputes thereon’ (A/CONF. 62/62, 13 April 1978, pp 2-3). As an informal text submitted at an Second meeting of the informal 1976. Committee on 15 April Seventh .Session as Reproduced at Document NG6/1, 1 May 1978. For comment on the Irish formula and various other formulae, see E.D. Brown, ‘The exclusive shelf and continental the zone: problem of economic the delimitation at UNCLOS Ill’, Maritime Policy and Management, Vol 4. NO 6. October 1977, p 377, at pp 384-388. 27 April 4 C.2/lnformal Meeting/l 4, 1978. 5 NG6/2. 1 1 May 1978. 6A/CONF. 62/C.Z/L.98. 18 April 1978 and Add. 1 and 2. 7 Eg in A/CONF. 62/SR. 94, p 6. * NG7/2. 20 April 1978. 9 NG7/10. 1 May 1978. I0 NG7/9. 27 April 1978 and NG7/1 1, 2 May 1978. r’ C.2/lnformal Meeting/2 1, 28 April 1978.

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and on a new text introduced by the USSR.4 The Irish draft, after recognizing that the continental shelf extends out to 200 miles or to the outer edge of the continental margin, whichever is further, suggests alternative formulae for establishing the outer limit of the continental shelf in cases where the continental margin extends more than 200 miles from territorial sea baselines. The first alternative would utilize straight lines joining fixed points at each of which the thickness of sedimentary rock is at least 1% of the shortest distance from such point to the foot of the continental slope. The second formula refers to straight lines joining fixed points not more than 60 miles from the foot of the continental slope. The Soviet text was also mainly concerned with cases where the continental margin extends beyond 200 miles. In accordance with the Soviet formula, where the margin extended more than 300 miles from territorial sea baselines, the outer limit of the continental shelf would be the 300-mile line. Where, however, the margin terminated somewhere between 200 and 300 miles, the outer limit of the continental shelf would be the edge of the margin, ‘determined on the basis of scientifically-sound geological and geomorphological data’, or, in the absence of such data, by reference to the second variant of the Irish formula. In considering these formulae and a more simple 200-mile formula put forward by a group of Arab states, 5 delegations were able to refer to a Preliminary Study Illustrating Various Formulae for the Dejinition of the Continental Shelf, prepared by the Secretariat and to an accompanying map.6 It would appear from reports of the proceedings of Negotiating Group 6 that the prospects for agreement on this question at the Eighth Session are linked to the emergence of politically satisfactory solutions to other related issues.’ On the question of delimitation of maritime boundaries between adjacent and opposite states, very little if any progress appears to have been made. The debate was based mainly on two ‘informal suggestions’ sponsored by opposing groups of states. A group of twenty states, including the UK, advocated the employment of the median or equidistance line as a general principle,s whereas the opposing group of twenty seven states, including Ireland, favoured the application of equitable principles as the general principle.’ Despite valiant attempts by the Group Chairman to find a compromise formula,iO the Session ended with a consensus on only one point: that discussions should continue at the Eighth Session. A group of ten states (not including any of those with an interest in the Rockall sector) introduced a suggested variation on ICNT Article 12 1 (Regime of Islands). I’ In terms of this proposal, islands which, because of their geographical location, constitute a source of distortion or inequity in the drawing of a boundary line, would have marine spaces ‘only to the extent compatible with equitable principles and with all geographic and other relevant circumstances’. This is not a proposal which seems likely to attract much support. II.

Geographical Aspects

The continental margin to the west of the British Isles is a very complex region, the geology of which is still only imperfectly understood. It is imperative, however, if the legal rules analysed above are to be properly applied, to have as detailed a knowledge as possible

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of the geography of the Rockall sector. The term ‘geography’ is used in this context in a very broad sense to refer not only to the general physical geography of the area but also to its geomorphology (pertaining to surface form), geology (the nature of the rocks) and bathymetry (the measurement of depth). It is always hazardous for the international lawyer to attempt to interpret the work of the marine geologist and it is all the more so when the lawyer is exploring the meaning of new legal concepts by reference to what, on the basis of inadequate data, can only be the geologist’s tentative and qualified conclusions about the nature of the submarine areas in question. It is hoped, therefore, that section II of this paper in particular will be read as a contributian by a lawyer to the task of building a bridge of understanding between the two disciplines which is necessary for the determination of maritime boundaries. The survey of the law contained in section I suggests that the object of the present section should be to throw light on the following questions: 0

0

0 0 0

Where would the outer limit of the continental shelf lie if it were drawn in accordance with the combined depth/exploitability formula in Article 1 of the Geneva Convention (1958)? What is the meaning of the terms ‘natural prolongation’ of a state’s land territory under the sea and ‘the outer edge of the continental margin’? What is the status of the Rockall Trough, the Faeroe-Shetland Channel and the Faeroe Bank Channel? What is the geographical nature of the Island of Rockall? Assuming that median lines are to be drawn between the UK and its neighbours, where would these lines lie?

The Geneva formula The 200-metre isobath drawn on Figure l’* supplies the necessary information for the application of the first leg of the Geneva formula. Determining the limit down to which the depth of the superjacent waters admits of the exploitation of the seabed and subsoil is much less simple and it is not proposed to make the attempt here. As was seen in Part 1,13 a strong case can be made for holding that the exploitability criterion is now obsolete. Of the three interested states, only Denmark and the UK would be bound by this conventional criterion in any event and, as was noted,14 the UK has made its abandonment of it quite clear. Denmark’s attitude is not known to the writer but, certainly, it has nothing to gain from adherence to this criterion, since its claim to extend its continental shelf beyond the deep Faeroe Bank Channel can only be weakened by application of the exploitability test.

Meaning of ‘natural prolongation’/‘continental margin’ ” Part 1, p 182. l3Ibid, p 190. ‘4Ibid. 15A tectonic feature is one structurally derived from earth movements.

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To appreciate what is meant by the natural prolongation of a state’s land territory into and under the sea or to understand the meaning of the outer edge of the continental margin, it is first necessary to know something of the theory of what is variously described as plate tectonicsI or sea-floor spreading, or continental drift, a theory now

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accepted by earth scientists as explaining the origins of the oceans and the structure of the continental margin. It is essential too to understand the meaning of the terms used to refer to the various zones into which the continental margin is divided. Plate tectonics The earth’s surface consists of a number of rigid, interlocking ‘plates’ which are continuously in motion in relation to one another. As described by Naylor and Mounteney, The plates themselves can be subdivided into an upper and lower unit. The upper unit is composed of either thick (15-25 miles) low density continental crust, or thinner (5 miles thick), more dense oceanic crust. Continental crust characterises the land regions of the world and the adjacent zone of shallow-water marine shelf, while oceanic crust characterises the deeper water zone which floors the major oceans and seas. The underlying lower unit extends beneath oceanic and continental crust alike, and is composed of the relatively brittle uppermost section of the high density mantle, some 55-75 miles in thickness. These relatively rigid platesfloat on the more mobile underlying mantle layers which constitute a major portion of the earth’s interior.”

Geologists now believe that: new crustal material is being generated along the central axes of many of the large oceans today, and being consumed along other parts of their margins. In order to maintain a constant surface area, the total volume of new crustal material created must equal that destroyed by consumption, and it is the maintenance of this balance that leads to the continuous motion of these plates across the surface of the earth.”

The creation of new crustal material takes place at the constructive margin between neighbouring plates and is reabsorbed into the earth’s mantle at the destructive margin between neighbouring plates. These margins are described by Naylor and Mounteney as follows:

S.N. Mounteney. l6 D. Naylor and Geology of the North-West European Continental Shelf, Graham Trotman Dudley. London, Vol 1, 1977, p 24. ” Ibid.

278

A construclive margin, developed where two plates are moving directly away from each other, gives rise to expanding seas or oceans, or where it bisects a land-mass to a linear rift valley. Across the ocean floor the constructive plate boundary is marked by a linear chain of submarine mountains, termed the mid-oceanic ridge. New oceanic crust is continuously being generated along the length of the ridge during the process of plate separation, and when formed becomes effectively welded to the separating edges as part of the rigid plate, leaving no physical gap between the plates . This new material produced at a constructive margin can be regarded as forcing the two plates apart. In the early stages of rupture of a continental mass, separation of the two broken fragments is slow, but with the appearance of a juvenile ocean, and the initial generation of oceanic crust, the rates of separation speed up to reach values of up to a few centimetres a year. The most obvious consequences of this process is to produce a symmetrical sea-floor on either side of the ridge crest. A destructive margin, developed where two plates are moving directly towards each other, marks a line where oceanic crust is being destroyed. Such a line generally occurs along the margins of continental masses where its surface expression is a system of oceanic trenches and island arcs. Where either one or both plates are composed of oceanic crust, the leading edge of one plate is forced beneath the other at an angle of about 45O . . becoming molten with depth and eventually being reabsorbed into the earth’s mantle. However, although the huge blocks of continental crust behave as passive passengers on the plates, their low density composition renders them incapable of being forced beneath the edge of another plate, and this itself places significant restraints upon plate motion. Where two advancing plates both have an upper section composed of continental crust, then the relative buoyancy of this low density continental crust with respect to the underlying mantle prevents the destruction of either plate boundary by plunging beneath

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Rockall

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of the UK:

Part

2

Continent (Graniticl /

Figure

2. Continental

\

drift. the other, and direct collision occurs. This results in a gradual cessation of motion as the continental crust of both plates becomes welded together to form a single plate. The line of such a collision boundary is marked by a belt of strongly buckled and thickened continental crust taking the form of a mountain chain.‘*

” Ibid, p 26. “Ibid, p 36. *” D.G. Roberts, graphic evolution in and Trough’, Continental Shelf Vol. 1: Geology, Applied Science, pp 77-89, at p 8 1.

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‘Tectonic and stratiof the Rockall Plateau Petroleum and the of North-West Europe, ed A.W. Woodland, Barking, Essex, 1975,

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October

As far as the Atlantic is concerned, it is the constructive phase of this process which is of most interest and it may be helpful to illustrate what takes place at a constructive margin by reference to the history of the formation of the Atlantic Ocean. The process can perhaps be most easily understood if it is likened to a vast conveyer belt system. In the beginning, over 200 million years ago, I9 there was no Atlantic Ocean but only a vast land mass including North America, Greenland and Western Europe. During the period from 200 to 100 million years ago, however, a constructive plate margin began to develop and the Atlantic ocean began to appear. As a result of upward thrusting forces from the earth’s interior, the surface of this huge land mass was split apart. The continuous forces causing the rupture can be said to have had two effects. First, they split up the land mass along the line of what is now the crack-line valley running along the crest of the mid-Atlantic ridge and began to push the two ‘plates’ apart, thus providing the motive force for the conveyer belt. Second, the molten rock which was emitted from the split solidified to form the relatively dense basaltic or oceanic rock which constitutes the ocean floor. Since the flow of molten rock is continuous, the solidifying rock is pushed sideways on either side of the crest and ‘sea-floor spreading’ thus takes place. The continents which now border the Atlantic, consisting of relatively less dense granitic or continental rocks, were, in effect, moved apart like passengers on the conveyer belt provided by the underlying moving ‘plates’ (see Figure 2). During this period of 200100 million years ago, the continental blocks of Southern Europe and North America were slowly separated and new oceanic crust was created over the entire length of the southern part of the North Atlantic. For the purposes of the present study, however, it is more important to understand the way in which the northward extension of this mid-Atlantic ridge system developed. At about 76 million years ago,20 a north-westward arm developed, separating the North American plate from the Greenland-Rockall plate, thus creating the Labrador Sea. Of more interest in the present context, however, are the various attempts to extend the spreading axis northwards through the Rockall sector. It appears that many of the complications of the continental margin around this area are the result of ‘intermittent but

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Rockall arld the limils of national jurisdiction qf the UK: Part 2

abortive attemps to extend the mid-oceanic spreading ridge northwards between the Greenland Plate and the European Plate’, from a plate junction south of Ireland.*’ One of the first of these failed attempts appears to have been in the area of the Porcupine Seabight, the tongue of deep water which partially separates the more landward part of the Irish continental shelf from Porcupine Bank to the west. According to Naylor and Mounteney, ‘the underlying thinned continental crust suggests that it is the result of one of several’, such abortive attempts.** Subsequently - probably during the period from 1 10 to 80 million years ago23 - an attempt seems to have been made to extend the spreading ridge northwards along the line of the Rockall Trough, which can be described as a failed attempt to separate the continental plate which formed Greenland and the Rockall Plateau from that forming Western Europe. Having failed in the Rockall Trough, the spreading axis shifted westward and may have extended northwards for a time across the Rockall Plateau, ‘creating the relatively poorly developed, shallow Hatton Rockall Trough’.24 Finally, since about 60 million years ago,2s the spreading axis shifted much further to the west to form the successful northward extension of the mid-Atlantic ridge system between Greenland and the Rockall Plateau along the line of the Reykjanes Ridge to the west of the Rockall Plateau.26 The subsequent history of the area is described by Naylor and Mounteney as follows:

2’ Naylor and Mounteney, op cit. Ref 16. p 37. 22 Ibid. p 8 5. 23 Roberts, lot cit. Ref 20, p 63. *4 Naylor and Mounteney. op cit. Ref 16, p 38. x Roberts, lot cit. Fief 20. p 8 1. 26Naylor and Mounteney, op cit. Ref 16. pp 37-38. 27 Ibid, p 38. 28 D.G. Roberts, ‘Structural development of the British isles, the continental margin, and the Rockall Plateau’, The Geology of Continental Margins. ed C.A. Burk and C.L. Drake, Springer-Verlag, Berlin, 1974, pp 343-369. at p 343. *9 M.H.P. Bott and A.B. Watts, ‘Deep continental margin structure of the adjacent to the British Isles’. in Report No 70/l 4. Institute of Geological Sciences, Geology of the East Ailantic Continental Margin, edited by F.M. Delany, SCOR Symposium, Cambridge, 1970, HMSO, London, 197 1. 3o LOC cit. Ref 28.

280

During the Eocene and Oligocene period, a phase of widespread subsidence followed the initial rapid Lower Tertiary separation of Greenland from NorthWestern Europe, and Rockall Plateau along with much of the continental shelf to the north and west of the British Isles became submerged. At the same time a pattern of deep-water sedimentation was established in the previously existing depressional troughs of Hatton-Rockall, Rockall, Porcupine, the Celtic Sea and Western Approaches. Data obtained from the deep sea drilling programme in the North Atlantic by the Glomar Challenger . . . indicates a second period of subsidence across the continental shelves during Oligocene times, while more recently. during the Early Pleistocene advance of the ice-sheet, a glacial fall in sealevel caused the shallower regions of Rockall Plateau and the shelf west of Britain to emerge from below the sea for a short period.*’

One of the results of these successive phases of seabed spreading has been the creation of ‘the only major microcontinent in the North Atlantic Ocean’,‘* sometimes referred to as the Rockall microcontinent and sometimes as the Rockall-Faeroe microcontinent. Bott and Watts refer to this area as ‘a region of shallow sea known as the Faeroe Rise. The south-western part of the Faeroe Rise (Rockall Plateau) includes Rockall Bank, Hatton Bank and George Bligh Bank all of which are shallower than 500 fathoms . . . The north-eastern part of the Faeroes Rise includes Lousy Bank, Bill Baileys Bank, Faeroe Bank, all of which are less than 100 fathoms depth, and the seamount Rosemary Bank (190 fathoms). These are separated from the Faeroe Islands by the Faeroe Bank Channel’.2y As Roberts explains, ‘The evolution and ultimate isolation of a microcontinent can only be achieved in terms of plate tectonics by several phases of spreading about widely spaced axes’.3o Thus, the spreading along the Rockall Trough axis initiated the creation of the

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Rockall and the limits of national jurisdiction of the UK: Part 2

‘I’ D.G. Roberts, ‘Marine geology of the Rockall Plateau and Trough’, Phi/osophical Transactions of the Royal Society of London, Series A, Vol 278, 1975, pp 447-509. at p 454. .12Ibid, p 459. “31bid. p 449, citing M.H.P. 8ott et a/, Evidence for continental crust beneath the Faeroe Islands’, Nature, Vol 248, 1974, pp 202-204: M.H.P. Sott et al, The deep structure of the Iceland-Faeroe Ridge, Marine Geophysical Research, Vol 1, pp 328-351; and U. Casten, ‘The crust beneath the Faeroe Islands’, Nature, Vol 241, 1973, pp 83-84. “’ M.H.P. Bott, ‘Structure and evolution of the North Scottish shelf, the Faeroe Block and the intervening region’, in Woodland, op cit. Ref 20, pp 105-l 13, at p 1 10. ‘I5 Ibid, p 105. 35 Lot tit, Ref 29, p 104.

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microcontinent and it was completed by the later spreading about the axis of the Reykjanes Ridge. Although the structural isolation of the microcontinent is clear to the west, the south and the east, it is less clear to the north. According to Roberts, ‘[The Rockall Plateau] is bounded to the west, east and southwest by steep margins falling to depths of 1000-1500 fathoms (1828-2743 m) although to the north the margins are ill defined and merge with the footslopes of Lousy Bank seamounV3’ . . . ‘The western continental margin of the Rockall Plateau extends from 60”N to 54’N and its base is clearly defined by the 1500 fathom contour . . . North of 60°N, the margin merges with the footslopes of the IcelandFaeroes Rise’.32 He adds that ‘The microcontinent may, on recent evidence, extend further north to underlie the lavas of the Faeroe Islands’.33 Bott, in a paper published in 1975, is more specific: ‘The Faeroe Block lies at the junction of the north-east trending Rockall-Faeroe Plateau and the south-east trending Iceland-Faeroe Ridge. Rockall Plateau is underlain by continental crust . . . but the Iceland-Faeroe Ridge is underlain by anomalously thick oceanic crust of Icelandic type’.34 The question was, then, to determine the nature of the crust beneath the Faeroe Block. Bott reported that ‘Recent crustal seismic investigations indicate that the early Tertiary lavas of the Faeroe Islands are underlain by continental crust, the Moho being about 30 km or more in depth. The Faeroe Block thus forms the northeastern part of the Rockall-Faeroe microcontinent, which probably includes Bill Baileys Bank, Lousy Bank, Faeroe Bank, and the subsided regions between them. In contrast, the Iceland-Faeroe Ridge is underlain by Icelandic type oceanic crust formed in the early Tertiary, and an anomalous type of continental margin formed about 65 my separates the Ridge from the Faeroe Block’.35 Similarly, Bott and Watts stated that ‘The Bouguer gradient between the [Iceland-Faeroes] Rise and the Faeroe Islands is interpreted by us as the transition from the dense, anomalous, Iceland type crust to continental crust, beneath the Faeroe Islands. Although other interpretations are possible, there is certainly a fundamental change in crustal structure across this margin revealed by the gravity anomalies, and out interpretation is in good agreement with the hypothesis that the whole of the Faeroe Rise [including the Faeroe Islands] is a continental fragment’.36 There thus seems to be general agreement among geologists that the Rockall Plateau forms part of a microcontinent and that it probably extends northwards into the Faeroe Block. Before concluding that this evidence is all that the lawyer requires to answer questions about the extent of the natural prolongation of the land territory of the states bordering the region or about the location of the outer edge of the continental margin, it is necessary to define the term continental margin and related terms and, in the light of those definitions, to look more closely at the structure of the troughs which appear to separate the microcontinent from the mainland. A closer look must be taken too at the Faeroe Bank Channel which separates Faeroe Bank from the Faeroe Islands.

Definitions

The

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definitions

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adopted

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Rockall and the limits of nationaljurisdiction

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Committee 1953:37

on

the

Nomenclature

of

Ocean

Bottom

Features

in

Continental shelf; shelf edge and borderland. The zone around the continent, extending from the low-water line to the depth at which there is a marked increase of slope to greater depth. Where this increase occurs, the term shelf edge is appropriate. Conventionally, its edge is taken at 100 fathoms, or 200 metres, but instances are known where the increase of slope occurs at more than 200 or less than 65 fathoms. When the zone below the low-water is highly irregular, and includes depths well in excess of those typical of continental shelves, the term continental borderland is appropriate. Continental slope. The declivity from the outer edge of the continental shelf or continental borderland into great depths. Continental terrace. The zone around the continents, extending from the low-water line, to the base of the continental slope. Island shelf. The zone around an island or island group, extending from the lowwater line to the depths at which there is a marked increase of slope to greater depths. Conventionally, its edge is taken at 100 fathoms, or 200 metres. lslarrd slope. The declivity from the outer edge of an island shelf into great depths.

The

continental rise was not referred to by the International Committee but has appeared regularly in the more recent literature. K.O. Emery describes it as follows: . . . the continental slope is bounded on its seaward side by the continental rise, a vast apron of debris from the continent and of calcareous skeletal material from near the sea surface. The apron shape reflects the landward source of most of the sediment (brought by turbidity currents and suspended sediment) and its movement and redeposition by bottom currents that appear to flow parallel to the contours lnote omitted]. The boundary between the continental slope and the continental rise is not everywhere clearly marked, owing to inadequate soundings and to the fact that sediments of the continental rise overlap the continental slope [note omitted] and can eventually bury it. [note omitted] For convenience in identification, Heezan and his associates take a steepness of I:40 as the boundary between slope and rise. The boundary is unrelated to depth, for it ranges from less than 1000 to more than 4000 metres.”

in of the 37 Reproduced Yearbook International Law Commission, 1956, Vol 1, p 131, and in UNESCO Secretariat Memorandum on ‘Scientific considerations relating to the continental shelf’, UNCLOS I Official Records, Vol 1, 1958, p 39. 38 K 0 Emery, ‘Geological aspects of seafloor sovereignty’, The Law of the Sea: Offshore Boundaries andzones, edited by L.M. Alexander, Ohio State University Press, 1967, pp 139-l 59, at p 150. 39 National Petroleum Council (USA), Petroleum Resources under the Ocean Floor, 1969, p 105. ‘O/bid. See also A.A. Archer and P.B. Beazley, ‘The geographical implications of the Law of the Sea Conference’, The Geographical Journal, Vol 141, Part 1, March 1975, pp l-1 3, especially at p 8 et seq. 4’ Ibid. Emery and A.J. Guilcher. ‘* K.O. ‘Definitions of the sea-bed areas’, in Symposium on the International Regime of the Sea-Bed (Rome. June-July 1969) Proceedings, lstituto Affari Internazionali, 1970, at D 33.

282

term continental margin suffers from a diversity of usage39 but usually refers to continental shelf, slope and rise (see Figure 3). The usage of the National Petroleum Council (NPC) should be noted, however, since it may be relevant for any boundary line based on the distinction between continent and ocean floor. In the NPC meaning, it indicates a ‘geomorphic/geologic zone of rather indefinite extent at the edge of the continental block encompassing the transition from continent to ocean basin. Geomorphically, it would usually include the shelf, slope and that landward portion of the rise which overlies continental crust. Geologically, it would include the transition zone from oceanic to continental crust’.40 The continental crust or granitic crust is the portion of the earth’s It is characteristically of lesser crust underlying the continents. density and greater thickness than the crust under the oceans. The oceanic crust or basaltic crust tends to be depressed in elevation relative to the continental crust because of its higher density.41 Most geologists seem to agree that the outer edge of the continental slope ‘approximately marks the boundary between the low density rocks of the continents and the high density ones of the deep ocean floor or the intermediate ones of the enclosed or marginal seas’.42

The

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Rockall and the limits of nationaljurisdiction Commental

Marggln /Geomorph!c/_

-

Abyssal

zb ---.

sea

‘Ontlnental

SedwnenrS

3. Continental

Plan

Level

SEA

Abyssal

Figure

of the UK: Part 2

P/am

sedfments

margin.

Dimensions The state of the art is such that only very approximate figures are offered in the specialist literature. 43 The information given in Table 1 is in general based on the extreme figures in this literature.

Table rise.

1. Dimensions

of the continental

shelf,

continental

Continental shelf Width Average: 42 miles (67.6 km) Range: less than 1 mile to over 750 miles (1 km-1200 Depth (outer edge) Average: 436 ft (133 m) Range: 164-l 804 ft (50-550 m) General range: 436-656 ft (I 33-200 m) Gradient Average: I:600 (0.1”) Continental slope Width Average: 1 O-20 miles f 16.1-32.2 km) Range: 9.3-50 miles f 15-80.5 km) Depth (outer edge) Average: (per Shalowitz) 5998.4 ft (I 830 Range: 3280-l 6 400 ft (I 000-5000 m) Gradient Common range: 2”.6’ Average: about 1 :I4 (4O). Continental rise Width Range: perhaps Depth Range: 4.920-l Gradient Range less than Thickness May be 0.6-6.2

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as much as 620 6 400 I:40

miles (1000

ft (1500-5000 (about

miles (l-10

m or 1000

1.5”)

slope,

and continental

km)

fathoms)

km)

m) down to 1 :lOOO

km)

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of the UK: Part 2

Status of Rockall Trough, Faeroe-Shetland Channel and Faeroe Bank Channel The Rockall Trough

43 See further Archer and Beazley, lot cit. Ref 40; C. Cotter, The Physical Geography of the Oceans, 1965; Emery. lot cit. Ref 38; Emery and Guilcher. lot cit. Ref 42; H.D. Hedberg, ‘Continental margins from viewpoint of the petroleum geologist’, American Association of Petroleum Geologists Bulletin. Vol 54, 1970; B.C. Heezen and M. Tharp, The Floors of the Ocean: 1. North Atlantic, Geological Society of America, Special paper 65, 1969; L.R. Heselton, The Continental Shelf, Institute of Naval Studies (US), Center for Naval Analysis, 1969; C.A.M. King, An Introduction to Oceanography, McGraw-Hill, 1969; H.W. Menard and S.M. Smith, ‘Hypsometry of ocean basin provinces’, Journal of Geophysical Research, No 18. 1966; J.L. Mero, The Mineral Resources of the Sea, Elsevier. Amsterdam, New York, 1965: National Petroleum Council (US). Petroleum Resources under the Ocean Floor, March 1969; H. Orlin, ‘Offshore boundaries: engineering and economic aspects’, Ocean Development and International Law, Vol 3, No 1, 1975; J.V.R. Prescott, The Political Geography of the Oceans, David and Charles, London, 1975; Report on Marine Science and Technology, April 1969, HMSO, Cmnd 3992; A.L. Shalowitz, Shore and Sea Boundaries, Government Printing Office, Washington, DC, 2 vols, 1962 and 1964; F.P. Shepard. Submarine Geology, 3 ed., Harper and Row, New York, 1973: UNESCO ‘Scientific Secretariat, considerations relating to the continental shelf’, UNCLOS I Official Records, Vol 1, p 39. 44 Roberts, lot cit. Ref 28 at p 350. emphasis added. See also R.A. Scrutton. ‘The crustal structure of Rockall Plateau microcontinent’, Geophysical Journal. Royal Astronomical Soci$y, Vol 27, 1972, DD 259-275. at o 272. 45 Roberts, lot cit. Ref 28, p 351. 46Roberts, lot cit. Ref 3 1, p 487. 41 Ibid. ‘a R.A. Scrutton, ‘Fragments of the earth’s continental lithosphere’, Endeavour. Vol XXXV, No 126, 1976, pp 99-103. at p refers to (without endorsing) 99. reservations expressed by some earth scientists. ” Roberts, lot cit. Ref 31, at pp 462-465. 5o Ibid. p 456. 5’ Ibid, p 465.

Figure 4 (facing page). prolongation’/‘continental problem

284

in the Rockall

The ‘natural margin’

sector.

Roberts, while stressing the ‘difficulty in determining the evolution of the area, largely because of the unknown composition of the crust beneath the Rockall Trough’,44 nevertheless concludes his review by saying that the ‘body of geophysical evidence thus suggests a continuous oceanic crust extending northward from the Bay of Biscay into the Rockall Trough’.45 Part of this evidence referred to a prominent escarpment on the western side of the Rockall Trough which Roberts has described as follows: There is marked asymmetry in basement depth and structure that is best developed between Anton-Dohrn Seamount and 53”30’N. On the west side of the Trough, the basement forms a 30 km wide platform lying at about 1.3s depth . . . The platform is bounded by a prominent NE-SW trending escarpment with a relief of ca 2.0s and dip of about 20” that is here called the Jean Charcot Fault Zone . . . No comparable feature is present along the east margin although there is a change in basement relief at about 2.0s depth . . . A gravity mode1 suggests the Jean Charcot Fault Zone marks the boundary between the thicker continental crust of Rockall Plateau and the thinner crust beneath Rockall Trough.46

While acknowledging that the nature of the thinner crust had yet to be defined precisely, Roberts, after reviewing further evidence, came to the conclusion that ‘This evidence suggests that the thinner crust is oceanic. The Jean Charcot Fault Zone may therefore mark the continent-ocean boundary and the 2.0s isopach may mark it beneath the eastern part of the Trough’.47 (See Figure 4.) This appears to be the preponderant, if still tentative, view of earth scientists4* and it would therefore seem reasonable for the lawyer to proceed on the basis of the working hypothesis that the Trough is underlain by oceanic crust but that, in the present state of knowledge, it would be very difficult, if not impossible, to determine with the degree of accuracy necessary for boundary purposes where the continent-ocean boundary lay on either side of the Trough. The lawyer is also interested in the thick sediments laid over the oceanic crust in the 3000 m deep Rockall Trough since, as will be seen, their origin and distribution may be relevant to the boundary question. Very conveniently for the lawyer’s purposes, Roberts has described and compared the west and east margins of the Trough, observing that ‘The axis of maximum depth provides a natural boundary between east and west margins . . .‘49 The first point of note is that ‘It seems clear that, unlike the shelf west of the British Isles, the Rockall Bank contributes little sediment to the adjoining deep basins in accord with the absence of canyons.50 Referring to the west margin, Roberts has written that The shelf, slope and rise provinces of a typical continental margin . are not fully developed and the margin consists of three distinct segments characterized by the presence or absence of shelf and slope. A broad rise comprised almost entirely by the Feni Ridge is comnon throughout and extends to the axis of the Rockall Trough.”

And again, The eastern boundary of the Feni Ridge sediment drift effectively corresponds to the axis of maximum depth in the Rockall Trough . . . South of Anton-Dohrn seamount there is a sharp boundary with a flat strongly reflective seabed cut by

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:

i

‘

,

4

7l

Rockall and the limits of nationaljurisdiction

of the UK: Part 2 small channels (relief ca 15 m) probably extending axially down the Rockall Trough. The eastern edge of this zone marks the distal lie in this case, the western seaward1 edge of the Barra and Donegal Fans . . . Axial transport from the fans may have inhibited further eastward extension of the Feni Ridge.52

The east margin, on the other hand, is described as follows: The continental margin northwest and west of the British Isles consists of a broad continental shelf, a narrow continental slope and a broader continental rise . . . The physiography of the continental rise between 57”30’N and 54’N is dominated by two large fans, here called the Barra and Donegal Fans that extend to the axis of the Trough. The area of the Barra Fan is approximately 2500 km2 and the Donegal Fan ca 9000 km*.“’

In comparing the west and east margins, Roberts notes that ‘it is striking that no canyons are developed on the Rockall Plateau. Their absence implies little sediment has been contributed to the Trough by erosion of Rockall Plateau and may therefore account for the preservation of the Feni Ridge sediment drift in contrast to the development of the Barra and Donegal Fans in the area of greater sediment suppl~.‘~~ Later he observes that ‘The sub-surface relation of the fans to the Feni Ridge drift is not clear. Topographic evidence . . . suggests axial transport has inhibited eastward extension of the drift. Most probably, fan and drift sediments interfinger at a scale too fine to be resolved by the seismic reflexion profiles’.55 To summarize, 0 0 0 0

52 ibid, pp 468-469. 53 ibid. pp 469 and 54Ibid. 55 ibid, p 498.

286

470

Very little sediment has been contributed to the Trough by erosion of the Rockall Plateau: The sediment drifts (clays and oozes) of the Feni Ridge extend to the axis of the Trough, where they meet: The western edge of the terrigenous sediments of the broad British continental rise; Although the western drift and the eastern fans probably ‘interfinger’ in the area of the axis, that axis may well provide the common terminus of the continental rises of the two ‘continents’ on either side of the Trough.

‘Natural prolongation ‘/‘continental margin’ - three formulae. Given the preponderant view that there is oceanic crust underlying the Rockall Trough, it seems to follow that a conclusion concerning the status of the Trough in terms of ‘natural prolongation’ and the ‘continental margin’ will depend on the role to be played by the sediments in the Trough. Pending the adoption of precise definitions (possibly in UNCLOS III), three basic formulae have to be considered: the geological formula; the geomorphological formula which may be further subdivided by reference to the continental slope and the continental rise; and the mixed geological-geomorphological formula. If ‘natural prolongation’ and ‘continental margin’ are defined by reference to geology - the nature of the underlying crust - then confirmation that the Trough is underlain by oceanic crust would mean that there was no natural prolongation between the UK (or Ireland) and the Rockall-Faeroe microcontinent and that the continental margin terminated where the oceanic crust began. If ‘natural prolongation’ and ‘continental margin’ are defined by reference to geomorphology, one of two formulae might be adopted either the seaward edge of the continental slope or the seaward edge

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Rockall and the limits of national jurisdiction of the UK: Part 2

of the continental rise. If the continental slope formula is used, there would again be no natural prolongation between the UK (or Ireland) and the microcontinent and the continental margin would terminate at the base of the slope. Application of the continental rise formula is more difficult in this situation. The rationale of including the continental rise in the definition of continental margin or natural prolongation is that the sediments constituting the rise are of continental provenance. In the present case, however, where two ‘continents’ are involved, it is necessary to determine whether the sediments are of British (or Irish) provenance or of Rockall-Faeroe provenance and, if they are both, whether it is possible to identify a line, with sufficient precision for boundary purposes, which could be said to mark a division between the British (or Irish) contribution and the Rockall-Faeroe contribution. The answer to which the preponderant view of geologists seems to point is that the sediment drift of the Feni Ridge extending to the depth axis of the Trough is of Rockall-Faeroe provenance, whereas the deep terrigenous sediments east of that axis are of British (or Irish) provenance. Given goodwill - or the delegation of sufficient powers to an international tribunal - it would not be beyond the wit of man to agree upon a dividing line marking the seaward extent of those terrigenous sediments. This line would then mark the boundary of the natural prolongation or continental margin of the UK and Ireland. It is possible, but seems highly unlikely on the basis of the above geological evidence, that a Tribunal might hold that the task of distinguishing the contributions of the two ‘continents’ to the sediments of the Trough is impossible to perform and that the British or Irish natural prolongations or continental margins extend across the Trough by virtue of the continuous body of sediments of mixed origins linking the two ‘continents’. It should be noted that the UK has a case for arguing that it makes no difference where the sediments come from because her sovereignty over Rockall means that the Rockall Trough sediments are the natural prolongation of either her Rockall continental margin or of her mainland continental margin. The validity of this argument does, however, depend upon acceptance of the proposition that such a rock generates an entitlement to a legal continental shelf.56 Finally, it is possible to define ‘natural prolongation’ and ‘continental margin’ by reference to a mixed geologicalgeomorphological formula. Thus, the natural prolongation or continental margin would extend seawards to a line which included not only the continental shelf and continental slope, but also that part of the rise which overlay continental crust. Application of this formula to the Rockall Trough would again mean that there was no natural prolongation between the two ‘continents’ - assuming, of course, that the Trough is underlain by oceanic crust. The following conclusions may be drawn from the above analysis: 0

56See

Part 1,

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If the crust underlying the Rockall Trough is ‘continental’, application of the geological formula would indicate that the natural prolongation or continental margin of the UK (or Ireland) extended across the Trough. There would be no such extension, however, if the geomorphological or the mixed geologicalgeomorphological formulae were applied alone.

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0

0

w Roberts, lot cif, Ref 28, at p 351, and Bott. /oc cit. Ref 34, pp 105 and 1 1 l112. 58 Roberts, lot tit, Ref 28, p 343. 59 Bott. lot cit. Ref 34, p 1 12. 6o Roberts, lot cit. Ref 28, at p 351, and Bott. lot tit, Ref 34, p 1 1 1. 6’ Bott. /oc cit. Ref 34, P 1 12 6216id, pp 11 l-l 12. 631bid,p112.

288

If the crust underlying the Rockall Trough is oceanic - the hypothesis seemingly favoured by available evidence - there is no extension of the natural prolongation or continental margin of the UK or Ireland across the Trough under any of the above formulae. The overall conclusion must therefore be that there is no extension across the Trough of the natural prolongation or continental margin of the UK or Ireland unless it can be shown that these territories are linked with the microcontinent wholly or partly by an underlying common continental crust, and the geological formula is accepted as a proper interpretation of the terms ‘natural prolongation’ and ‘continental margin’.

Faeroe-Shetland Channel As has been seen, the Rockall-Faeroe microcontinent is separated from the margin of the British Isles not only by the Rockall Trough but also by the Faeroe-Shetland Channel. It appears5’ that the Faeroe-Shetland Channel, which is separated from the Rockall Trough at 60°N by the Wyville-Thomson Ridge,58 may have been formed by a north-eastern extension of the spreading axis contemporaneous with the Rockall Trough. Bott comes to the tentative conclusion that ‘three continental margins are believed to separate the main North Atlantic basin from the North Scottish continental. shelf. Two of these on either side of the Faeroe-Shetland Channel formed contemporaneously and are probably of Mesozoic age. The most distant margin developed at about 60 my as Greenland separated from the Rockall-Faeroe microcontinent . . .‘5p While the origin of the Faeroe-Shetland Channel still remains to be conclusively determined, the view taken by geologists on the basis of the existing evidence thus seems to be that, like the Rockall Trough to the south, the Channel was formed by sea-floor spreading and the sediments have been laid down on an underlying oceanic crust.(” If this is so, then the same considerations would apply here as in the case of the Rockall Trough in determining the situation of the ‘natural prolongation’ and the ‘outer edge of the continental margin’. A further word must be said about the Wyville-Thomson Ridge, the origin of which is still obscure.61 As described by Bott, it is a ‘bathymetric ridge of west-north-west-east-south-east trend connectlingl the south end of the Faeroe Bank to the North Scottish continental shelf and separatling] Rockall Trough from the FaeroeShetland and Faeroe Bank Channels . . . Detailed bathymetry ... shows that there are two ridges separated by a Trough. The name Wyville-Thomson Ridge has been restricted by Ellett and Roberts (1973) to the northern ridge which is continuous between the Bank and the Shelf, and the new name Ymir Ridge has been suggested for the southern ridge which extends about two-thirds way across, being separated by an embayment at the north end of Rockall Trough’.62 Again according to Bott, ‘The origin of the ridges is obscure on the basis of present evidence. One possibility is that intense igneous activity has penetrated and substantially thickened pre-existing crust, either continental or oceanic . . . Another possibility is that the ridge formed by unusually intense differentiation from the mantle during the evolution of the Rockall Trough and the Faeroe-Shetland Channel by sea-floor spreading . . .‘.63 If the view that the Faeroe Bank forms part of the Rockall-Faeroe

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microcontinent is confirmed, it would seem that a case could conceivably be made for saying that there is a natural prolongation between the microcontinent and the North Scottish continental shelf via the Wyville-Thomson Ridge. Such a case would depend upon evidence to show that the Ridge incorporates continental crust.64 Faeroe

Bank

Channel

Finally, the status of the Faeroe Bank Channel has to be considered. If the tentative conclusion, reported above,65 is ultimately confirmed and it is proved that the Rockall-Faeroe microcontinent extends northwards into the Faeroe Block, it is important to determine for legal purposes whether the Faeroe Bank Channel marks a discontinuity in the northwards extension of the microcontinent or whether the continental crust of the Faeroe Bank extends beneath the Channel to link up with the continental crust underlying the Faeroe Islands. Bott has described the Channel as follows: The Faeroe Bank Channel joins the Faeroe-Shetland Channel to the main North Atlantic basin. At its narrowest it is 24 kms wide and has a sill depth of 410 fathoms (750 m) . . Sediments of the order of 1 km in thickness form the floor of the Channel and are underlain by highly magnetic basement similar to that beneath the bank and the Faeroe shelf . . . The origin of the Channel is obscure, but possibilities include (1) subsidence on a pre-existing line of weakness, (2) erosion during early tertiary uplift associated with the Faeroe volcanism and continental splitting, or (3) incipient sea-floor spreading with dyke injection.66

The ‘natural prolongation’, ‘continental margin’ problem is thus the same for Denmark in this area as it is for the UK and Ireland in relation to the Rockall Trough. If further evidence confirms the presence of continental crust under the Channel and the geological formula discussed above is applied, the Faeroes natural prolongation will extend across the Channel. If not, such an extension would have to be based on the continental rise variant of the geomorphological formula and it would then be necessary to show that the 1 km deep sediments in the Channel were derived from the continental terrace of the Faeroe Islands.

h4 For a similar view, see P. Birnie, ‘Rockall: A problem of delimitation of the British continental shelf’, Proceedings and Papers of Fifth Commonwealth Law 1977, Edinburgh, July Conference, William Blackwood & Sons, Edinburgh, 1978, pp 44 l-448. hS See text above between Refs 28 and 36. hS Bott. /oc cit. Ref 34, pp 1 1 O-l 1 1. f’7R.D. Hodson, and R.W. Smith, ‘The Negotiating Text Informal Single II): a geographical (Committee Ocean Development and perspective’, International Law, Vol 3, 1976, pp 225259, at p 232; House of Commons Hansard, 13 December 197 1, Col 202. he J.R. Hawkes et al. ‘Rockall Island’ in R.K. Harrison, Expeditions to Rockall 1971-72 (Report No 75/l of Institute of Geological Sciences), HMSO, 1975. p 117.

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Geographical nature of Rockall The Island of Rockall lies at latitude 57” 36’N, longitude 13” 41’W. It measures about 80 by 100 ft at its base, rises at high tide to a height of about 70 ft, and has an area of approximately 624 square metres (0.000241 square miles). It lies at a distance of 402 miles from Iceland, 322 miles from the Faeroes, 226 miles from Bloody Foreland, the nearest point of the Republic of Ireland. It is about 289 miles from the nearest point of the Scottish mainland, Ardnamurchan Point, some 200 miles from Barra Head in the Outer Hebrides and 165 miles west of the Island of St Kilda.67 The Island of Rockall is uninhabited and uninhabitable. It lacks fresh water and, given its inaccessibility, is unsuitable as a base for a manned lighthouse, though it does support a light placed on the rock in 1972 by the UK. Rockall is the only part of the Rockall Bank which rises above sea-level at high tide, although Hasselwood Rock, about 250 metres to the north,68 is a low-tide elevation.

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oflhe

UK: Part 2

Median lines As has been seen, the boundary lines between legal continental shelves sometimes take the form of median lines or lines of equidistance from the nearest points on the baselines of the territorial sea of the neighbouring states. In other cases, the boundary departs from the equidistant line under the influence of various equitable factors. In either case, however, it is necessary to know where the equidistant lines lie and for this reason they have been drawn on Figure 5.6Y

The object of this paper being to determine the limits of national jurisdiction of the UK, this section is focused primarily on the claims made by the UK and considers their validity in the light of the legal rules analysed in the opening section and the geographical and geological information provided in the second. Since, however, the strength of the British case depends in part on the strength of the competing claims made by Denmark and Ireland, the validity of these claims must also be examined.

Continental

shelf claims

The UK claim by section 1 of the Continental

It is provided

Shelf Act 1964 that:

I( I) Any rights exercisable by the United Kingdom outside territorial waters with respect to the sea bed and subsoil and their natural resources, except so far as they are exercisable in relation to coal, are hereby vested in Her Majesty. (7) Her Majesty may from time to time by Order in Council designate any area as an area within which the rights mentioned in subsection (1) of this section are exercisable, and any area so designated is in this Act referred to as a designated area.

69 For a description of the method used to construct these lines. see A.L. Shalowitr, Shore and Sea Boundaries, US Government Printing Office, Washington, DC, Vol 1, 1962. p 234 and Figure 50. 7o S.I. and 197 l/594, 1974/l 489. 1978/I 78. ” S.I. 1978/l 78, Article 2 Hansard. 13 ‘* House of Commons December 197 1, Col 190.

Figure

5 (facing

in the Rockall

290

page).

sector.

Median

lines

By Orders’O made under the Act in 197 1, 1974 and 1978, the UK has designated the area shown in Figure 6 as ‘an area within which the rights of the United Kingdom outside territorial waters with respect to the sea bed and the subsoil and their natural resources are exercisable’.‘l It does not of course follow that the area designated constitutes the full extent of the UK’s continental shelf but the 1974 Order - designating an area of 52 000 square miles - does make it clear that the government believe that the British continental shelf extends a considerable distance west of Rockall. It is less than clear from the record of ministerial statements what the government considers to be the foundation of their claim in international law. In December 197 1, in the course of the Second Reading of the Island of Rockall Bill, the Under-Secretary of State for Home Affairs and Agriculture, Scottish Office, stated that: Once the island is incorporated in the United Kingdom, it will become subject to the provisions of the Fishery Limits Act 1964. It will also be possible for an Order in Council to be made under the Continental Shelf Act, 1964 . . .72

The clear implication of this language is that the incorporation of Rockall in the UK would bring with it an area of continental shelf to which Rockall, as an island, was entitled in international law. This is

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I

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Rockall and the limits of national jurisdiction

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import too of the Under-Secretary’s further statement that ‘ . . . there is no doubt that Rockall and its Continental Shelffall within the jurisdiction of the United Kingdom’.73 That the government, at that time, based their case on the Geneva Convention on the Continental Shelf (1958) is apparent from the Minister’s statement that, ‘We shall stand by the limits laid down, either as they exist under the 1958 Continental Shelf Convention or as they may be decided at the United Nations Law of the Sea Conference in 1973’.74 A different view seems to have been adopted more recently. Thus, at the time of publication of the 1974 Order, the Foreign Office was reported as having indicated that the area claimed was not attributable to Rockall but was claimed on the ground that the area was a natural prolongation of the land mass of the UK.75 It must be assumed that this move was a reaction to indications at the Caracas Session of UNCLOS III that support was growing for the Irish view that uninhabited rocks should not be permitted to generate their own area of continental shelf. No doubt the Minister of State had in mind the need to strengthen the natural prolongation case for an extensive continental shelf around Rockall when he stressed in statements made in January and April 1975 that, ‘It is our view that under existing international law a coastal state already has sovereign rights for the exploitation of seabed resources to the edge of the continental margin, and we would hope to see this principle reaffirmed in the new Convention.‘76 As noted above,” this is tantamount to saying that the exploitability criterion in the Geneva Convention on the Continental Shelf ( 195 8) is now, in the government’s view, obsolete. It is also clear, however, that the ‘island’ argument had not been prolongation’ argument but simply replaced by the ‘natural strengthened by this alternative. Thus, in his statement of 30 January 1975, Mr Ennals, referring to the question of island, said: the

73 /bid, Col 203. emphasis added. l4 Ibid. Cols 203-204. 75 The Telegraph, 7 September 1974; The Times, 15 January 1975. ‘6Statement by Minister of State for Foreign and Commonwealth Affairs at The Third United Nations Law of the Sea Conference. Consultations with Nonand Organizations Governmental Individuals on British Policy at the Conference, Church House, 30 January 1975. 77 See Part 1, p 190 78 Lot cit. Ref 76, p 2. 79 House of Commons Hansard, Vol 885, Col 1467. *O Written Answer, House of Commons Hansard, Vol 924, No 33, Col 384.

Figure

6

(facing

continental

shelf

designated

areas.

292

of the

page). Rockall

The

The British view is that the existing position under international law should be preserved. namely . . . that islands should count in full for both the generation and the delimitation of zones of jurisdiction. But of course, other states wish to see the law on this changed. The Conference will have to consider whether all islands, no matter how large or small, should be entitled to their own territorial sea, fishing zones. and continental shelves. Also whether the influence of islands on median lines between states should be reduced, perhaps by using some formula based upon size and population of the islands themselves. There has in this country and overseas been a good deal of speculation about the significance of Rockail. Rockall is part of the United Kingdom. Under present international law, in our view, Rockall generates its own continental shelf. It also has a 12.mile fishing limit like any other part of the United Kingdom.‘*

The same view was expressed by the Lord Advocate given in the House of Commons on 23 January 1975:

in an answer

. . . under present international law, in the Government’s view, the island of Rockall generates its own continental shelf, and we are content to rely on that basis for the exploitation of oil and other purposes.79 That the government has maintained its view that Rockall generates areas of maritime jurisdiction is indicated in a reply given by the Foreign Secretary in the House of Commons on 24 January 1977: Rockall is part of the United Kingdom and accordingly extend around Rockall to 200 miles or to the median line.“’

British Fishery

Limits

sector:

Summing

up,

it

would

seem that

the British

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Rockall and the limits of national jurisdiction of the UK: Part 2

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arguments, the ‘island’ argument and the ‘natural prolongation’ argument, which may be regarded as either complementary or alternative to each other. The island argument is that international law does not distinguish different categories of islands. Rockall is an island, and as such generates an area of continental shelf. The natural prolongation argument is that the exploitability criterion in the 1958 Geneva Convention may no longer be regarded as placing any limitation upon the seaward extension of the continental shelf even as between parties to the Convention; the continental shelf extends throughout the whole of the natural prolongation of the state’s land territory into and under the sea to the edge of the continental margin; the Rockall Trough does not constitute an interruption of the UK’s continental margin. The validity of these arguments will be considered following a review of the claims made by Ireland and Denmark.

L(lThe following Orders were made under s.2(3) of the Continental Shelf Act 1968: S.I. 182/l 968; S.I. 96/1970; S.I. 3611974; S.I. 371/1974: S.I. 21/1977 and S.I. 22/l 977. a2 S.I. 371/l 974. a3 S.I. 22/l 977. 11 February 84 The Financial Times, 1977. 85 Dail Debates, Vol 268, Col 1 197, cited in CR. Symmons, ‘The Rockall Dispute’, The Irish Geographer, Vol 8, 1975. pp 122-l 26. 86See, eg. UNCLOS III Official Records. Vol IV. 1975, p 15, Para 47, and the ‘draft of areas of article on delimitation continental shelf between neighbouring States’ (ibid. Vol V, 1975, pp 220-221). The draft article provided infer alia that ‘In median line for the determining a purposes of this article account may be taken of an island only if it is inhabited and if (i) It is situated less than the breadth of the territorial sea from the low water line of the coast; or (ii) It contains at least one tenth of the land area and population of the State concerned’. As a basis for negotiation, this proposal is somewhat lacking in political realism. w Symmons. Ioc cit. Ref 85, p 124. 88 Issued by Government Information Services on behalf of Department of Foreign Affairs.

294

The Irish claim Of the six designation orders so far made by the Irish government8’ two are of particular relevance to the delimitation problem in the Rockall sector. By an Order dated 20 December 1974,82 the Irish government designated the area of 15 000 square miles shown in Figure 6. As the figure shows, this area did not overlap with the UK’s designated areas but it did extend across the Rockall Trough to include a small part of the Rockall Plateau. The next Irish action brought the two countries into direct conflict. By an Order dated 1 February 1977,83 a small additional area was designated to the north-east of the Irish sector, as shown in Figure 6. It appears that this designation order was prompted by the British action in allocating oil exploration licences to British Petroleum and the British National Oil Corporation in blocks 132/15 and 133/11. These blocks lie within the area designated by the UK in 197 1 but it would appear to be the view of the Irish government that they lie on the lrish side of the boundary line between the British and Irish continental shelves.s’ The Irish case has two aspects, one negative and the other positive. Negatively, Ireland, since at least 1973, has been ‘adamant in resisting any British claims to exercise jurisdiction over . . . [Rockall’s] adjoining seas’,85 and, in the UNCLOS III proceedings, the Irish delegation has taken a leading part in advocating that small and isolated islands should not generate an area of continental shelf.86 Moreover, in response to the British Order in Council of 6 September 1974, the Irish government made a formal protest and its Department of Foreign Affairs issued a strong statement, pointing out that the British designated areas were not acceptable to the Irish government; that they included areas which ‘as a matter of international law fall within Irish jurisdiction’ and ‘which are closer to the Irish than to the British coast’.87 In a statement issued on 25 January 1977, the Minister of Foreign Affairs said: The Irish Government must make it plain, once again, that it absolutely rejects any claim based on the notion that rocks and islands may play a role in determining the extent of maritime jurisdiction. We have encountered, but refused to accept, such claims in our negotiations with the British over an equitable division of our common continental shelf.“”

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Positively, Ireland has responded to British claims by asserting its own claims to areas of continental shelf which extend across the Rockall Trough to include part of the Rockall Plateau. The legal basis of their claims would seem to be that the natural prolongation of the territory of the Republic of Ireland extends across the Trough to the Rockall Plateau. The Order of 1 February 1977 has drawn attention to another aspect of the Irish case. As is noted below, the Irish government made a Fishery Limits Order in 1976, specifying the coordinates of an ‘equitable equidistant line’ boundary between the British and Irish fishery zones. The line so drawn departs to a marked extent from the equidistant line drawn from the officially prescribed territorial sea baselines of the two states. No mention is made of any such ‘equitable equidistant line’ in either the Continental Shelf Act 1968 or any of the designation orders. That the same line is regarded as marking the continental shelf boundary also is strongly suggested, however, by the fact that the two most northerly coordinates employed to specify the area designated in the Order of 1 February 1977 lie just on the Irish side of the fishery limits line.89 The Danish (Faeroes) claim Denmark too was incensed by the UK’s 1974 Order and it has been reported 9o that, in December 1974, the Danish government delivered an official note expressing reservations over the designations in question, claiming that Rockall formed part of the same geological formation as the Faeroe Islands and calling for negotiations. In another formal protest, lodged in January 1977, the government did not challenge British sovereignty over Rockall but argued that Rockall could not legitimately be used as a basepoint for drawing the British 200-mile fishery limit.91 It would, therefore, appear that Denmark is adopting the same attitude as Ireland. Negatively, they would reject the use of an uninhabited rock as founding a continental shelf claim and would challenge the UK’s assertion that the Rockall Plateau is a natural prolongation of British territory. Positively, they would assert their own continental shelf claim on the basis of a natural prolongation argument. Analysis of claims As has been seen, the claims made by the three states are founded on one or other of two basic arguments - the ‘natural prolongation’ argument and the ‘island’ argument.

*’ Coordinates and (4) of the (3) Designated Areas Order of 1 February 1977 are: (3) 56’ 36’N. 09” 12’W; (4) 56’34’N. 09’ OO’W. They lie just south of coordinates (3) and (4) of Part II of the Schedule to the Fishery Limits Order of 22 December 1976: (31 56’ 38’N. 09” 18’W; (4) 56’ 35’N. 09’ OO’W. See further below, section on ‘Exclusive fishing zone claims’. So The Times, 15 January 1975. $’ The Times, 29 January 1977.

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The ‘natural prolongation’ argument. It must be said that, given the present uncertainties concerning the geology of the area, the lawyer, pending further geological research, has little option but to work on the basis of various geological alternatives. Recapitulating the conclusions reached in Section II, these various geological alternatives may be presented as follows. In relation to the UK, alternative 1 is that there is no natural prolongation of the territory of the UK across Rockall Trough and the Faeroe-Shetland Channel because (a) there is no underlying continental crust linking the ‘continent’ of the UK with the RockallFaeroe microcontinent and (b) it is not possible to say that the

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sediments laid down in the Trough and Channel are derived from the continental terrace of the UK. Alternative 2 is that a natural prolongation does exist on one or more of three grounds: (a) the existence of a common continental crust in at least part of the Trough and/or Channel; (b) the existence of a continental crust link in the shape of the Wyville-Thomson Ridge; (c) acceptance of the proposition that sediments laid down in the Trough and Channel are predominantly of British provenance and that this is sufficient to constitute a natural prolongation. In relation to the Republic of Ireland, alternative 1 is the same, mutatis mutandis, as for the UK. Alternative 2 is also similar but the case for Ireland is weaker in that (a) there is no ridge between Ireland and the microcontinent like the Wyville-Thomson Ridge and (b) if there is continental crust linking the British Isles with the microcontinent, it is more likely to be found in the northern part of the Rockall Trough and in the FaeroeShetland Channel. In relation to Denmark (The Faeroes), alternative 1 is again, mutatis mutandis, the same as for the UK. Alternative 2 is similar to the Irish alternative 2 - a natural prolongation exists because (a) there is a continuation of the continental crust across the Faeroe Bank Channel and/or (b) the sediments in the Channel are predominantly of Faeroes provenance. The Danish case appears to be stronger than the Irish because of the greater likelihood that the Faeroe Islands can be shown to be continentally linked with the Faeroe Bank and the remainder of the Rockall-Faeroe microcontinent. In the absence of the detailed expert geological evidence which would no doubt be made available to an international tribunal, it is difficult for the academic lawyer to come to anything more than a highly qualified conclusion as to which of the various permutations of these alternatives best reflects a correct application of the law. Depending upon the degree of reliance placed upon this or that item of geological evidence and on the definition of natural prolongation/continental margin adopted, a case can be made out for a great many different conclusions, including the following: 0 0 0 0 0

That none of the three states is entitled to extend its continental shelf to the Rockall-Faeroe microcontinent. That only the UK is entitled to extend its continental shelf to the microcontinent. That only the Faeroes is so entitled. That the UK and the Faeroes are so entitled. That all three states are so entitled.

On balance, it is the writer’s opinion that only the geological formula offers any of the three states a basis for claiming a natural prolongation across to the microcontinent. This being so, it must be concluded that the Faeroes has the strongest claim, being subject only to the need to confirm that the microcontinent’s continental crust does in fact extend under the Faeroe Bank Channel. The UK’s claim depends on the nature of the Wyville-Thomson Ridge; even if it provides a continental crust bridge between Scotland and Faeroe Bank, it is a somewhat slender basis for a natural prolongation argument. So far as Ireland is concerned, the only basis for asserting a geological link with the microcontinent would again be provided by

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the Wyville-Thomson Ridge, the argument - feeble though it is being that the Ridge provides a bridge not between the microcontinent and the UK but between the microcontinent and the continental margin of the British Isles of which Ireland forms part.

y2Part

1,

The ‘island’ argument. It is noted above that the UK government’s view, stated by Mr Ennals in 1975, is that ‘islands should count in full for both the generation and the delimitation of zones of jurisdiction’. This statement serves as a reminder that, especially when dealing with very small islands, it is necessary to consider not only whether, in principle, the island concerned is entitled to generate an area of continental shelf but also whether, in relation to the delimitation of a common continental shelf, tne situation of the island constitutes a special circumstance in the meaning of Article 6 of the Geneva Convention or a factor creative of inequity under international customary law. The opinion is expressed aboveg2 that, under the present law, international customary law and the Geneva Convention are at one in not recognizing any distinction between islands, islets or rocks. It was recognized that state practice was trending in the direction of the formula contained in ICNT Article 128(3) but that the trend was not yet so pronounced as to have brought about a change in the law. It followed that, in principle, rocks such as Rockall were entitled to generate a continental shelf of their own. Whether, on further examination, this prima facie finding may be confirmed in a given case, depends upon the situation of the rock in question. The answer, so far as Rockall is concerned, depends once again upon interpretation of the geological data. It will suffice to consider five interpretations, corresponding to the five alternative conclusions presented above in relation to the natural prolongation argument. If, first, Rockall does not lie on the natural prolongation of any of the three states, then full effect may be given to it and it should be permitted to generate its own continental shelf. And if, secondly, Rockall lies on the natural prolongation of only Great Britain, then the shelf generated by Rockall will overlap that generated by the UK mainland. The third possibility is that Rockall lies on the natural prolongation of the Faeroes only. In that case, Rockall should again be permitted to generate its own continental shelf, which may possibly extend to meet that of the UK mainland, and which will be separated from the Faeroes continental shelf by a median-line boundary. There would not seem to be any justification for treating the situation of Rockall as a special circumstance in that context. The fourth and fifth possibilities may be considered together. If Rockall lies on the natural prolongation of the Faeroes and the UK or of all three claimant states, quite a different question is posed. It is no longer simply a question of considering the entitlement of islands to generate an area of continental shelf: it is now a question of applying the rules for the delimitation of a common continental shelf between two or more neighbouring states. Whether or not full effect, or indeed any effect, should necessarily be attributed to Rockall in the delimitation of the continental shelf will now depend essentially upon the question whether the size, nature and situation of Rockall are such that it constitutes a special circumstance in the meaning of Article 6 of the Geneva Convention or a factor creative of inequity under

p 204.

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international customary law. The issues raised will be examined on the basis of the fifth possibility, that is on the assumption that Rockall lies on a microcontinent which is the ‘natural prolongation’ of all three claimant states. On this assumption and in the light of the references made in Section I to situations in which islands may constitute special circumstances or factors creative of inequity,93 it is difficult to believe that any objective observer could possibly deny that this is a case of special circumstances par excellence. Moreover, the UK would find it difficult to dispute such a finding in view of its pleadings in the AngloFrench case. In the course of its argument in relation to the Channel Islands, the UK government invoked a statement made by Commander Kennedy, RN, a British delegate to UNCLOS I in Geneva in 1958, in which he said that, ‘for the purposes of drawing a boundary, islands should be treated on their merits, very small islands or sand cays on a continuous continental shelf and outside the belts of territorial sea being neglected as base-points for measurement and having only their own appropriate territorial sea.‘94 As the Court of Arbitration observed, the UK was concerned to show that, ‘in the context of the equidistance-special circumstances rule, it is only very small islands which, in certain circumstances, may not be given full effect’.Y5 To the same effect, the UK government emphasized that in the Judgment in the North Sea Continental Shelf case (1969) it is only ‘islets, rocks and minor coastal projections’ which are spoken of as having a ‘disproportionately distorting effect’ on the course of the median line.96

93 See Part 1, p 192; pp 196-197 on position of Channel Islands; and pp 202203 on position of Stilly Islands. 94 UNCLOS I Official Records, Vol VI, p 93, quoted in Decision, Para 170. To the same effect is Commander Kennedy’s further observation that, ‘For a boundary across a continental shelf the problem of islands may become very acute. It would seem most inequitable for instance, if the existence of an island or islet (which by definition need be only a small abovewater rock or sandbank, possibly only a few yards long and a few feet high) should be allowed to divert a boundary and thus give extensive areas of shelf to the State possessing the islands’. (Brief Remarks on Median Lines and Lines of Equidistance and on the Methods Used in their Construction, distributed at UNCLOS I by British Delegation, 2 April 1958). 95 Ibid. 46 Ibid. p 155. =’ Lot cit. Ref 93. 98 Decision, Para 251, where the method of giving half effect is described as ‘delimiting the line equidistant between the two coasts, first, without the use of the offshore island as a base-point and, secondly, with its use as a base-point; a boundary giving half effect to the island is then the line drawn mid-way between those two equidistance lines’.

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Delimitation of the common continental shelf. Three questions remain to be considered, and they will be considered on the assumption that the Rockall-Faeroe microcontinent is the natural prolongation of the territories of the three claimant states and that Rockall neither generates a continental shelf of its own nor influences the delimitation of this common continental shelf among the three states. The first question is whether the situation of some of the more seaward, very small islands is such that less than full effect should be attributed to them in constructing boundary lines, on the ground that they constitute special circumstances or factors creative of inequity. The second question is whether the ‘proportionality factor’ has any part to play in constructing the line of delimitation between the Faeroes and the UK. Third, brief reference must be made to the equitable equidistant line which Ireland is apparently asserting. The effect of the more seaward, very small islands. The islands to be considered are Foula (west of the main Shetland group), Sule Skerry and Stock Skerry (west of Orkney), North Rona and Sula Sgeir (north-west of Cape Wrath), and the Flannan Islands and St Kilda (west of the Outer Hebrides). In the light of the examination above9’ of islands as special circumstances and bearing in mind that only half effect was attributed to the Stilly Isles by the Court of Arbitration in the Anglo-French Continental She@ case ( 1977),98 it seems highly probable that an international court or tribunal would hold that those islands (to the extent that they would otherwise provide basepoints) should be disregarded for the purpose of constructing median lines between the Faeroes and the UK.

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Rockall and the limits of national jurisdiction of the UK: Part 2 The proportionality factor. As was seen above, the ICJ held in its Judgment in the North Sea Continental Sheycases that, to ensure the application of equitable principles to the delimitation of the continental shelf, account had to be taken of ‘the element of a reasonable degree of proportionality which a delimitation effected according to equidistance principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the length of their respective coastiines ...‘99 In view of the evident lack of such proportionality as between the Faeroes and the UK, the question must be asked whether this factor has to be considered in this case. In the light of the re-examination of the ICJ’s dictum by the Court of Arbitration in the Anglo-French case,loO and bearing in mind that the Anglo-Danish line is to be drawn in accordance with Article 6 of the Geneva Convention rather than the rules of customary law with which the ICJ was concerned, it seems right to hold that the proportionality factor may be invoked in this case only in the sense that the broad notion of proportionality is one which may be called in aid to help in establishing whether the situation of the Faeroes relative to the UK constitutes a special circumstance because of its unjust distorting effect on a median line boundary. There is no doubt that an argument for a modification of the median line in favour of the UK could be made on this basis, emphasis being placed not only on the lack of proportionality but also on the isolation of the Faeroes from metropolitan Denmark. However, on the other side of the balance, weight would have to be given to the fact that the Shetland group is also a good distance from the mainland of Scotland.

The equitable equidistant line. The Irish claim to an equitable equidistant line is quite explicit in the Maritime Jurisdiction (Exclusive Fishery Limits) Order, 1976, where its precise coordinates are given. Since the corresponding claim in relation to the continental shelf has been made only by implication, it is sufficient to say, on the basis of the arguments considered below in relation to fishery limits, that there seems to be no justification for the departure from a ‘strict’ equidistant line asserted by the Irish government in the Order of 1 February 1977.‘O’ Conclusions. It may be stated that: 0

0

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99See

Part 1, p 193. loo See Part 1, p 199. below lol See section fishing zone claims’.

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If Rockall lies on only the natural prolongation of the UK, the question of Rockall’s right to generate a continental shelf of its own does not arise and the continental shelf of the UK mainland will extend to include the Rockall Plateau. If Rockall does not lie on the natural prolongation of any of the three states, then, under existing international law, it generates a continental shelf of its own - which may in places extend to meet the continental shelf of the mainland. If Rockall lies on the natural prolongation of only the Faeroes, then, under existing international law, it generates a continental shelf of its own. This shelf may again extend in places to meet the shelf of the mainland of the UK and will be separated from the shelf of the Faeroes by a median-line boundary. In relation to the second and third conclusions, it has to be recognized that the time may shortly come when it will be

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possible to say that internationaf customary law, following ICNT draft Article 128(3), sanctions only a belt of territorial sea for rocks such as Rockall. Given doubts as to the meaning of ‘islands’ in Article 1 of the Geneva Convention on the Continental Shelf, such a development may in time be relevant for the interpretation of the Convention as well. If Rockall lies on the natural prolongation of the Faeroes and the UK or of all three claimant states, the rule which in principle entitles rocks to generate a continental shelf will be displaced by the special circumstances/equitable factors rule and Rockail will be permitted neither to generate its own continental shelf nor to influence the delimitation of the common continental shelf between the two or three neighbouring states. If, pending a settlement of the dispute, a new convention (incorporating ICNT draft Article 128(3)) is adopted by UNCLOS III and becomes binding upon the parties, Rockall will generate only a belt of territorial sea and have no effect upon the delimitation of the continental shelf. On balance, it is believed that the very small islands referred to above should be disregarded if it becomes necessary to draw a median-line boundary between the Faeroes and the UK and that no modification of the median line is called for by application of the ‘proportionality factor’. Nor would there seem to be any justification for the adoption of the equitable equidistant line apparently claimed by the Irish government.

Exclusive fishing zone claims As was noted above, the UK Faeroes and Ireland all adopted 200-mile fishery limits with effect as from 1 January 1977. In the case of the UK, under the Fishery Limits Act 1976, British fishery limits were extended to 200 miles from the baselines of the territorial sea or to the median line between the UK and another state where the median line is less than 200 miles from the said baselines. The government is empowered, however, to alter these limits by Order in Council ‘for the purpose of implementing any international agreement or the arbitral award of an international body’. Although the Island of Rockall is nowhere mentioned in the Act, it is clear from the map accomp~ying Admiralty Notice to Mariners No 2611 of 1976 that the territorial sea baselines round Rockall have been employed in the construction of the outer limit (see Figure 5). This policy is, of course, in accordance with the view of the British government, reaf&med as recently as 24 January 1977, that ‘ . . . Rockall is part of the United Kingdom and accordingly British Fishery Limits extend around Rockall to 200 miles or to the median line’.iO* The reaction of the Irish government to the British use of Rockall as a basepoint has already been referred to in relation to continental shelf claims. It is summed up in the words of the Irish Foreign Minister’s statement of 25 January 1977:

102 Lot ‘03 Lot

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tit, tit,

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Ref 88.

The British claim, therefore, that their fishery limits can be reckoned from Rockall as though it were mainland is directly contrary to the views of the majority of the world’s states as to the relevant rules of international law. We reiterate our rejection of this claim . . . ‘o3

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Rockall

““‘Text in New Directions in the Law of the Sea, edited by R. Churchill et a/, Oceana Publications, Inc. New York, Vol V. 1977, pp 120-122. ‘05 Article 4, emphasis added. “‘61reland: Maritime Jurisdiction Acts 1959 (No 22 of 1959) and 1964 (No 32 of 1964). s.4 and the Maritime Act, Jurisdiction 1959 (Straight Baselines) Order, 1959 (S.I. 173/l 959) (texts in United Nations Legislative Series: National Legislation and Treaties the Territorial Sea etc. relating to ST/LEG/SER.B/15. 1970. DD 90-94. ‘r” J.V.R. ihe Prescott, Political Geography of the Oceans, David & Charles, London, 1975, p 85, notes that, in constructing their own straight baselines, the Irish authorities have not used the outermost islands in each case. Tory island in the north, the Stags of Broadhaven in the west, and Fastnet Rocks in the south lie outside the straight baseline. A similar approach to the Scottish coast would of course produce a very different series of straight baselines from those which now run from Cape Wrath round the Hebrides to the Mull of Kintyre. Irish ‘r” Under Article 2 of the ‘The Constitution, national territon/ consists of the whole island of Ireland, its islands and the territorial seas’. The question was raised (albeit by a Northern Irish Magistrate) in 1973 and is fully discussed in C.R. Symmons, ‘Who owns the territorial waters of Northern Ireland? A note on D.P.P. for Northern Ireland v McNeill’, Legal Northern Ireland Quarterly, Vol 27, No 1, 1976, pp 48-66. See also O’Higgins’s note on the Maritime Jurisdiction Act in International and Comparative Law Quarterly. Vol 9, 1960, p 325, at pp 333-334. lo9 Order No. 598 of 2 1 December 1976 (H. Churchill, op cit. Ref 104, Vol V, 1976, plll).

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They did not rest content, however, with simply registering a protest against the British claim. Under the Maritime Jurisdiction (Exclusive Fishery Limits) Order, 1976,io4 which entered into force on 1 January 1977 contemporaneously with the British Act, Ireland laid claims to an exclusive fishing zone extending to 200 nautical miles or to ‘the equitable equidistant line between the State and the other state, being the appropriate line set out in the Schedule to this Order’.io5 The northerly segment of this ‘appropriate line’ is plotted on Figure 5 and, since it departs quite radically from the line of equidistance drawn by reference to the baselines officially published by the two states (disregarding Rocka11),lo6 it raises the question of what exactly is meant by the ‘equitable equidistant line’. In the absence of further information, one can only speculate on what equitable factors may have been identified by the Irish government. There may be an implied rejection of some or all of the straight baselines published by the UK. lo7 It is even possible that there is an implied reassertion of the old claim that the Province of Northern Ireland has no jurisdiction beyond low-water line and that the Republic of Ireland is entitled to the territorial sea (and presumably also the exclusive fishing zone and continental shelf) around all the coasts of the whole of the island of Ireland.lo8 At first sight, however, it does not appear possible to justify this ‘equitable equidistant line’. As noted above, Denmark too rejected the use of Rockall as a basepoint in the formal protest lodged in January 1977. The Order of 21 December 1976, proclaiming a 200-mile fishing zone around the Faeroes, envisaged a median-line boundary with the UK, drawn by reference to Faeroe’s straight baselines specified in the 0rder.io9 There are thus two basic legal questions involved: may a rock such as Rockall generate an exclusive fishery zone of 200 miles; and by reference to what rules are the fishery-zone boundary lines to be drawn? Right to generate an exclusivejishery zone The argument on this question is similar to that on Rockall’s right to generate a continental shelf. In principle, under the present law, Rockall is an island, and as such entitled to generate an exclusive fishery zone. The crucial question, however, is whether this prima facie right survives closer examination. As in the case of the continental shelf, the rules on generation of a fishing zone have to be considered in the context of the rules governing delimitation between neighbouring states. Viewed in this context, a persuasive case can be made out for saying that the situation of Rockall relative to the three claimant states constitutes a special circumstance or a factor creative of inequity. It is unlikely, therefore, that an international court or tribunal would recognize that Rockall was entitled to generate anything more than a 12-mile belt of exclusive fishery zone. In analysing the corresponding question in relation to the continental shelf, the point was made that this conclusion was based upon the law as it is at the moment and on the view that the present law has not been altered by the UNCLOS III proceedings and related state practice. If this view is mistaken or if UNCLOS III were to adopt a Convention incorporating ICNT draft Article 128(3), then, of course, as argued above in relation to the continental shelf, there

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would be all the more reason to hold that Rockall was not entitled to a fishery zone of its own.

Rules for delimitation It was argued above that, although treaty rules had not yet been developed on delimitation of fishery zones between neighbouring states, there were grounds for holding that the applicable rules were the same, mutatis mutandis, as those laid down in the Geneva Conventions of 1958 for the delimitation of the territorial sea, continental shelf and fishery conservation zones. Accordingly, in applying the equidistance-special circumstances rule, the same reasoning as excluded the outermost Scottish islands as basepoints for continental shelf boundaries and denied any effect to the proportionality factor would hold good here too in relation to the construction of fishery zone boundaries.

The exclusive economic

zone

At a time when none of the three parties has made an EEZ claim, it would be premature to dwell on this aspect at great length. It must suffice to draw attention to the fact that if, in the future, two or all of the three states become parties to a new UNCLOS III Convention embodying the concept of the EEZ in more or less the form it takes in the ICNT, or if, as a result of extensive state practice, such a concept is received into the corpus of rules of international customary law, the delimitational problems of the Rockall sector would be quite transformed. Since the EEZ would entitle the coastal state to the natural resources of the bed and subsoil of a submarine area extending out to 200 miles, irrespective of the geological nature of the area, the continental shelf argument rehearsed above would be relevant to only an entitlement to an additional submarine area beyond the 2O@mile line. Moreover, assuming that Article 12S(3) of ICNT survived in the new Convention, the problem of the status of Rockall would be solved at a stroke: it would be entitled to a 12-mile territorial sea and nothing more. The task of drawing the EEZ boundary lines would then present very few difficulties. IV.

Conclusions

A study of the limits of national jurisdiction in the Rockall sector has to contend with two major difficulties - the lack of precision and certainty in the current law and the provisional status of the views of geologists on the geological nature of the various features in this area. Given such complications, it is possible to do no more than present tentative conclusions which appear to be justified by the above analysis. On balance and subject to the various caveats made above, the evidence seems to justify the conclusions that: 0

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The exclusive fishery zone boundaries of the UK in the Rockall sector should be equidistant lines between the territorial sea baselines of the UK and the Republic of Ireland in the south of the sector and of the UK and the Faeroes to the north. The baselines around the Island of Rockall and the other very small outlying islands referred to above should be disregarded in the construction of these lines.

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0

Professor Brown studied for his degrees at the University of Edinburgh and 1Jniversity College London. Before joining rhe Department of Law at UWIST he was Reader in Law at University College. His recent publications include The Legal Regime of Hydrospace, Stevens, London, 19 7 1; ‘Exclusive economic zone: criteria .md machinery for the resolution of International conflicts between different llsers of the EEZ’, Maritime Policy and Management, Vol4, No 6, October 1977; The continental shelf and the exclusive problem of economic zone: the delimitation at UNCLOS Ill’, ibid; and ‘It’s Scotland’s oil?: hypothetical boundaries in the North Sea ~ a case study’, Marine Policy, Vol2, No I, 1978, pp 3-2 1.

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of the UK: Part 2

The same equidistant lines will serve to delimit the EEZ of the UK if this becomes necessary in the future. As regards the boundaries of the continental shelf, it is less easy to be so specific, but the above analysis, by reference to the ‘natural prolongation’ and ‘island’ arguments, suggests that further geological evidence will probably justify one of two conclusions: (i) that Rockall lies on only the natural prolongation of the Faeroes, in which case Rockall would generate its own continental shelf which would probably extend to meet that of the UK mainland, and the boundary line with the Faeroes would be a median line (unless a modification was felt to be called for by arguing that full effect should not be given to Rockall on the ground that its size and nature made a special circumstance of it), and Ireland’s shelf would not extend across the Rockall Trough; (ii) that Rockall lies on the natural prolongation of both the Faeroes and the UK, but not of Ireland, in which case a delimitation would be effected on the basis of a median line drawn from the territorial sea baselines of the Faeroes and UK, Rockall having no influence upon it (Ireland again would not be permitted to extend its continental shelf across the Trough).

If either of these last conclusions is ultimately upheld in third-party proceedings, it will of course mean that the exclusive fishery limits will not coincide with the continental shelf limits, and that Ireland will have no share in the continental shelf of the Rockall Plateau. Viewed in the context of long-term policy considerations, this result is scarcely a recipe for stable relations among the three states. Given the need to police boundaries, it is, of course, desirable to keep the number of boundaries as small as possible. Moreover, there would seem to be every likelihood that the EEZ concept will be generally accepted within the next few years, and that rocks like Rockall will not be entitled to generate maritime zones other than the territorial sea. If so, this would give Ireland an entitlement to not only the fishery resources out to 200 miles but also the natural resources of the seabed and subsoil - irrespective of the geological nature of the area. These difficulties would be avoided if an international tribunal were to take the view that the Rockall-Faeroe microcontinent was in law the natural prolongation of the territories of all three states. It seems a little unlikely that a tribunal will come to this conclusion, but it is not impossible, given a large dose of equitable principles and an awareness of this policy consideration.

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