It is hoped that this Bill will resolve the doubts and uncertainties which have sometimes arisen as to the precise extent of the jurisdiction of the State in the sea areas which are adjacent to our coasts.
Perhaps the most notable feature of the Bill is that it will enable what is termed the "straight baseline system" to be applied to parts of the Irish coast. As Senators are aware, the breadth of the territorial sea is normally measured from low-water mark on the coastline. Under the straight baseline system, the breadth of the territorial sea is measured from straight lines joining outermost points on the mainland, islands, and low-tide elevations on which installations permanently above sea level have been built.
The straight baseline system was approved by the International Court of Justice in 1951 in the Anglo-Norwegian Case. The principles enunciated by the Court in that Case have been formulated in the Convention on the Territorial Sea and Contiguous Zone which was drawn up by the first United Nations Conference on the Law of the Sea held at Geneva in 1958. Although the Convention is not yet in force, its provisions dealing with the straight baseline system may justly be said to represent the present international law on the subject. Article 4 of that Convention reads as follows:—
1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
2. The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the régime of internal waters.
3. Baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them.
4. Where the method of straight baselines is applicable under the provisions of paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by a long usage.
5. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State.
6. The coastal State must clearly indicate straight baselines on charts, to which due publicity must be given.
Having regard to these principles and considering the nature of the Irish coast, it is the intention of the Government to prescribe straight baselines from a point in Donegal in an anti-clockwise direction along the northwest, west and south coasts to an appropriate point on the Wexford mainland. The result of the application of the straight baseline system will be a very considerable increase in the area over which this country is entitled to exercise the right of exclusive fishery jurisdiction.
Senators may ask why we have in the Bill chosen a 3 mile limit for our territorial seas. The answer is that we believe that the concepts of territorial sea and exclusive fishery limits are distinguishable and that a narrow breadth of territorial sea—as distinct from exclusive fishery limits — is in our own interests. Extensions of the territorial sea have considerable strategic implications which do not result from an extension of the exclusive fishery limits. Furthermore, a second United Nations Conference on the Law of the Sea is due to be held in the Spring of next year to deal with the very problems of the breadth of the territorial sea and exclusive fishery limits; and we do not wish in any way to anticipate the outcome of that Conference. I have repeatedly stated and I say it again that our preference in any question of extended limits is that they should be achieved, in so far as possible, by international agreement rather than by unilateral action. Accordingly, pending the result of the Conference next Spring, the breadth of our territorial seas will, under the Bill, remain as always save that in the parts of the coast where straight baselines are applied it will be measured in a different manner. At the same time, I wish to make it clear that our adoption in the Bill of the three-mile limit for the territorial seas should not be taken as implying that we necessarily regard the three-mile limit as the existing rule of international law.
The third of the three principal objects of the Bill is contained in the very important provision which empowers the Government by Order to extend the exclusive fishery limits of the State. Such an Order would require resolutions of approval by both Houses. As I have already stated, our expressed preference has been for a separation of the concepts of territorial sea and exclusive fishery limits and we trust that the trend towards such a separation which was manifest in Geneva in 1958 will find full acceptance at the pending Conference in the coming spring. While we cannot claim to be in the same category as some European countries whose economies are overwhelmingly dependent on fishing, nonetheless our fishing industry is an important and expanding one and it is only natural in conformity with the general international trend we should have under consideration the extension of our exclusive fishery area. We do not, however, propose to make an order extending the exclusive fishery limits pending the outcome of the 1960 Conference. After that Conference we will review the position.
The Bill also provides that the Government may take conservation action in areas of the high seas adjacent to the territorial seas. This is a new departure in the international field and is based on Article 7 of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas. This Convention has not yet been ratified and is not in force, and action under Section 7 is not contemplated in the immediate future. Before measures of conservation are taken unilaterally there would have to be negotiations with the other States concerned and the measures taken must not discriminate against foreign fishermen. Furthermore, the need for the measures must be urgent and must be based on scientific findings.
The Minister for Lands is empowered in the Bill to issue a permit authorising fishing within the exclusive fishery limits for experimental purposes by a foreign sea fishing boat. Such a permit would be issued only in exceptional circumstances, for example, to allow study of a particular unfamiliar method of fishing. The Minister is empowered to attach various restrictive conditions to the permit.
Section 10 of the Bill deals with offences in the territorial seas and internal waters. Such offences are offences within the jurisdiction of the State. However, although we claim such jurisdiction, it would be exercised only in suitable instances. It is recognised that, under international law, offences on board ship in the territorial seas are subject in the first place to the law of the ship's flag and the coastal State has concurrent jurisdiction only; furthermore, the jurisdiction of the coastal State is exercised only in certain well defined circumstances, for example, where the consequences of the offence extend to the coastal State. As a further safeguard for the rights of aliens Section II of the Bill provides that proceedings against an alien for an alleged offence in the territorial seas on board or by means of a foreign ship, shall not be instituted without a certificate from the Minister for External Affairs that the proceedings are expedient.
Provision has been made for the prescribing of charts which will be received in evidence. Advantage has also been taken to repeal the Territorial Waters Jurisdiction Act, 1878, and also some old enactments relating to fishing. In the absence of adaptation or by reason of implied repeal it is doubtful if these statutes could be said to be in force at all, but they will be now repealed in so far as they are or ever were in force.
The Bill is designed to come into operation on the 1st October, 1959, that is the day on which the Fisheries (Consolidation) Act, 1959, which is now law, also comes into operation. This is necessary because reference is made throughout the Bill to the Fisheries (Consolidation) Act, 1959.