Dáil Éireann díospóireacht -
Tuesday, 21 Jul 1959

Vol. 176 No. 11

Committee on Finance. - Maritime Jurisdiction Bill, 1959—Committee and Final Stages.

Sections 1 to 3, inclusive, put and agreed to.

SECTION 4.

Question proposed: "That Section 4 stand part of the Bill."

Mr. Dillon

I should like to record our appreciation of the facilities afforded us by the Minister in regard to seeing the approximate outline of what the Government has in mind in regard to the base line proposals suggested under subsection (2).

I would like to ask what exactly is the position? When we publish our charts, what happens then? Is there any international tribunal or any international agreement under which our base lines are accepted or do we have to negotiate bilaterally with every other State to secure their assent to our jurisdiction for prosecution for what we will regard as illegal fishing within these base lines ?

Mr. Aiken

No. We do not have to negotiate with other States. The Convention lays down very clearly what our rights are in the matter. We publish the Order and the map and our Courts are bound to exercise jurisdiction where the map shows they have it in certain respects. That would be the situation. The law will be there and the Courts will be bound to enforce it.

Mr. Dillon

Under subsection (2) we take a certain course and declare part of our coast to be deeply indented and on foot of that declaration we indicate the base line which we regard as the true coast line ignoring deep indentations and we define the waters within the new base line drawn by us on our charts as being our fishing waters within which it is an offence against the law to fish. Suppose Spanish trawlers turn up and—as commonly happens—are fishing off the Continental shelf 150 miles south of Ireland. They are told by their own meteorological service by radio that storms are impending and these Spanish trawlers come to Bantry Bay or to one of our harbours for shelter during the storm and possibly are received. The difficulty usually arises when these trawlers are returning to their ordinary fishing grounds that they begin to trawl at a time which in our judgment is too soon to let out their trawls within our territorial waters and if we catch them at that we arrest them, prosecute them in the Court and impose appropriate penalties.

Suppose these trawlers say: "We are not within your territorial waters. We question that your base line is properly drawn within the meaning of the Convention to which you have subscribed". Is there any tribunal provided by the conference which drafted this Convention to which a legitimate difference of opinion on the interpretation of the Convention would be properly referred? I fully appreciate the situation in Iceland does not arise from this problem at all. The problem in Iceland derives from the fact that the Government of Iceland claimed to extend its territorial waters and Great Britain refused to accept the extension to the limit which Iceland wished to define. We now have a most unfortunate situation obtaining in these waters where I think the British accept a six mile limit but, in the area from that six mile limit out to the 12 mile limit, contention is proceeding between the naval forces of Iceland and of Great Britain as to whether British trawlers shall legitimately fish in the six mile belt of water to which rival claims are made. There does not seem to be any Court of competent jurisdiction to enforce agreement between them.

Here is a Convention to which I gather the vast majority of maritime nations subscribe. Surely somebody has foreseen the possibility of a perfectly bona fide difference arising as to the correct interpretation of the Convention and ought there not be some simple procedure for the resolution of such difficulties especially inasmuch as it has been generally agreed among the signatories of this Convention that we should separate economic considerations from strategic and territorial considerations in relation to the drawing of these baselines? As I understand it the baselines for the definition of fishery waters are not understood to carry with them any political implications or declarations of the right to restrict or restrain ordinary shipping. They simply define the area within which each signatory claims exclusive fishery rights.

Mr. Aiken

The Deputy will remember, I am sure, that some years ago Norway adopted this straight baseline system and the matter was thrashed out in the International Court. Britain objected, but the Court held with the Norwegians that they had a right to draw these baselines and since last year the Geneva Conference agreed upon a Convention which clearly set out the rights of the coastal States to define their territorial waters with reference to the straight baseline system. If there are objections to our Order I expect the objecting State could take an action against us in the International Court and we would have to defend the baselines that we had drawn. Once the Dáil passes this legislation our own Courts will decide cases of contravention of the fishery limits in accordance with that legislation and it will operate until it is changed by Order.

Mr. Dillon

I am perfectly content so long as the Minister is able to say to me that if we do this and if somebody questions the propriety of the baselines drawn by us it will simply go to the Court of International Justice and the decision of that Court will bind us both. All I want to ensure is that we are not doing something that might get us out on a limb and into an argument with somebody with whom we have not the slightest desire to have an argument. At the moment we are in a position to say: "If you do not like our baseline or think it is inconsistent with the Convention, we will meet you at The Hague, argue our case and agree."

Question put and agreed to.

Sections 5 to 8, inclusive, agreed to.

SECTION 9.

Question proposed: "That Section 9 stand part of the Bill".

Mr. Dillon

I do not know whether it applies to Section 9 or 10, but one thing requires to be clarified. I personally am in no doubt, but perhaps the Minister would avail of this occasion to clarify it? As I understand it, the effect of Sections 9, 10 and 11, taken together, is that if a foreign ship commits an offence against our fishery laws within our exclusive fishery limits, as defined by Section 4, the ship and its master will be answerable to our Courts as at present without any interference by the Department of External Affairs.

Mr. Aiken

That is right.

Mr. Dillon

But in respect of ordinary Common Law or Statute Law offences, other than those against the fishery laws, the masters and personnel of ships flying foreign flags will not be prosecuted in our Courts without the approval of the Minister for External Affairs and that ordinarily that approval is not granted as such personnel are ordinarily, but not universally, answerable to the law and the Courts of the flag which their ships fly. Is that correct?

Mr. Aiken

That is correct, yes.

Question put and agreed to.

Section 10 agreed to.

SECTION 11.

Question proposed: "That Section 11 stand part of the Bill."

Mr. Dillon

Might I suggest to the Minister that he might have a word with his colleague, the Minister for Justice, because it has come to my knowledge that certain State Solicitors are in some doubt as to the present situation if and when this Bill passes into law? It would be of assistance to State Solicitors, who are responsible for the prosecution of fishery offences in their areas of jurisdiction, if some note to clarify the position were sent to them to remove any doubt that they are entitled to proceed with prosecutions under the fishery laws without the prior sanction of the Department of External Affairs.

Mr. Aiken

I shall ask the Minister for Justice to have a memorandum circulated to the State Solicitors on the matter.

Question put and agreed to.

Sections 12 to 17, inclusive, agreed to.

SECTION 18.

Question proposed: "That Section 18 stand part of the Bill."

Mr. Dillon

I interpret the Minister's undertaking with regard to the circular as applying to whoever is the prosecuting authority?

Mr. Aiken

That is right.

Question put and agreed to.

Schedule agreed to.

Title agreed to.

Bill reported without amendment.

Agreed to take Report Stage now.

Mr. Dillon

On the Schedule I should like to raise one minor point and to have the Schedule recommitted for that purpose.

Bill recommitted in respect of Schedule.

Question proposed: "That the Schedule be the Schedule to the Bill."

Mr. Dillon

I expressed our misunderstanding of the Minister's position in regard to the drawing of the baseline and I do not want to qualify that. However, I see a number of enactments repealed in the Schedule. The Sea Fisheries Act, 1843, the Sea Fisheries Act, 1868, the Territorial Waters Jurisdiction Act, 1878, the Sea Fisheries Act, 1883, the North Sea Fisheries Act, 1893 and the Fisheries (Consolidation) Act, 1959. In repect of the Territorial Waters Jurisdiction Act, 1878, and the Sea Fisheries Act, 1883, has the repeal of these Statutes been examined from the point of view of the impact such repeal might have on our sustained position on the much wider question of the territorial waters of Ireland? The Minister will recall there are certain questions which are outstanding and which, by decision of our Government, have been allowed to remain in abeyance, but we have never conceded that any Statute heretofore enacted has effectively under any system of law, foreign or domestic, operated to transfer the jurisdiction of the Irish Government over territorial waters from the Irish Government to anybody and that not even the extreme extent to which that argument might be pressed could call in question the appropriate jurisdiction for the waters of Lough Neagh. I agree with the Minister that in the context of this Bill there is no necessity to raise these issues, but at the same time I should not like inadvertently in the Schedule to this Bill to repeal an Act to which it might be requisite at some future time to refer him in substantiation of another and graver matter which we might be concerned to argue before an appropriate tribunal, national or international.

Mr. Aiken

The Deputy will notice in regard to these Acts being repealed that, with the exception of the Fisheries (Consolidation) Act, 1959, the extent of the repeal is that we say: "The whole Act is repealed in so far as it is or ever was in force in the State." It is held in regard to these Acts being repealed, barring our own Act enacted this year, that their application here is very doubtful, but we want to remove the doubt. These Acts were all enacted to give effect to international conventions which make reference to fishing within three miles off the coast.

It does not affect the other issue to which the Deputy refers. We are merely getting rid of things which might be held to conflict with exclusive fishery limits as defined in this Bill.

Mr. Dillon

The Minister has often heard of the danger of throwing out the baby with the dirty water.

Mr. Aiken

That is so.

Mr. Dillon

I can quite understand that it is expedient to remove doubts by repealing these Acts in so far as they ever applied here. All I am concerned with is to ensure that, in taking that decision, we do not do anything to our own disadvantage. Reference has been made to the possible implication of the acknowledgment of the force of these Acts by other parties within this jurisdiction. To put it quite bluntly, there may have been an implied acknowledgment by other persons that the effect of these Acts was to recognise the sovereign authority of the Irish Government over our territorial waters in the period in which it was recognised as the 32-County Government. Subsequently, in legislation which purported to subtract from our jurisdiction six counties of Ireland, inadvertently or otherwise, there was no attempt made to deal with the territorial waters of these six counties. Therefore territorial waters were left in the original jurisdiction. Has the repeal of these Acts been considered in the light of the desirability of preserving that position in case it should be necessary to argue it at some future date? Or could the casual repeal of these Acts be brought in evidence in some entirely different context to argue that, by the repeal of these Acts, in so far as they apply within our jurisdiction, we are acknowledging the effective withdrawal of the territorial seas around our North-East corner as having been effected? I do not know whether the Minister has looked at it from that angle.

Mr. Aiken

I have.

Mr. Dillon

The Minister says that does not arise.

Mr. Aiken

No. This Bill, in so far as it amends the extent of our territorial waters, extends the area of sea over which we claim territorial jurisdiction.

Mr. McGilligan

In relation to fisheries.

Mr. Aiken

And in relation to territorial waters.

Mr. McGilligan

Where is that?

Mr. Aiken

Section 4.

Mr. McGilligan

No. Section 5 is internal waters.

Mr. Aiken

Section 4 gives us the right to establish a baseline. Section 13 gives us evidence as to the extent of internal waters, territorial seas, exclusive fishery limits and fishery conservation areas. The chart will be the evidence as to what our territorial waters are at that part of the coast on which the x straight baseline is drawn.

Section 3 gives the outer limit of the territorial areas:—

For the purposes of this Act, the outer limit of the territorial seas is the line every point of which is at a distance of three nautical miles from the nearest point of the baseline.

Mr. McGilligan

What is that purpose? Mainly fisheries?

Mr. Aiken

The Bill makes provision in respect of the territorial seas and the exclusive fishery limits. In this Bill we are not attempting to extend our exclusive fishery limits beyond our territorial waters. Our waters in the indented parts of our coast will be measured by the straight x baseline system in future instead of by the old system.

Mr. Dillon

There is no difference between us. All I want to do is to take precautions. This is a Bill to make provision in respect of the territorial seas and the exclusive fishery limits of the State, and to provide for the conservation of the living resources of the sea. Quite bluntly, we have never conceded anywhere that the territorial seas of our country are other than the seas that wash the four shores of Ireland. Rightly, I think, in the present context the Government elect to leave that question in abeyance for the practical purpose of drawing a straight x baseline to define fishery law in respect of that area over which we effectively exercise jurisdiction.

I want an assurance from the Minister that, in deciding on that course of action at this time and in incorporating in the Schedule the repeal of the Territorial Waters Jurisdiction Act of 1878 and the Sea Fisheries Act of 1883, we are doing nothing which could hereafter be availed of by an antagonist in an argument as to the correct definition of the territorial seas of Ireland. I wish to be assured that nothing is being done in this Bill that could be correctly described as conceding that the seas that wash the North-East corner of the territory of Ireland are not the territorial seas of Ireland. If the Minister has looked at the matter from that point of view and if he is satisfied that nothing in this Bill, in its Long Title or in the Schedule, will give any ground for such an argument being made hereafter, I am content. But I think it is important to register here and preferably by declaration of the Minister on behalf of the Government, that nothing in this Bill is to be taken as a recognition of any claims which may be advanced by any party to the exclusive jurisdiction which is the prerogative of the Government of Ireland to the territorial waters of the 32 counties of this island.

Mr. Aiken

I can assure the Deputy that nothing in this Bill or in the Schedule attached to it takes one inch from the territorial seas that exist today. When this Bill is enacted its effect will be to add to the territorial waters in certain parts of the coast. It will not reduce them in any part.

Mr. McGilligan

The Minister's phrase is entirely directed to territorial seas which are defined in Section 2 with two limitations. I am more concerned with Section 5 which deals with the internal waters and we may as well state the claim which has always been maintained as to what are our inland waters. The Articles of Agreement for the Treaty established the whole island with its territorial waters and inland seas with power being given to certain counties to opt out if they so wished. Six counties did so opt away from the State but they were only given six Parliamentary counties or land. They were given no sea and no water. Our claim is that the entire waters of Lough Foyle, Carlingford Lough and Belfast Lough belong here and our extreme claim would include the waters of Lough Neagh which is entirely inland. Is that claim covered by Section 5? I doubt it.

Mr. Aiken

It is not affected. After all, the extent of our territorial claim is set out in the Constitution. We cannot amend the Constitution by ordinary legislation. This Bill does not purport to change or affect any claim we have over the territorial waters as they exist today. When the Bill is passed it will extend our territorial waters and will not restrict them or take anything from them.

Mr. McGilligan

The Constitution refers to the territorial waters which are marked from the baselines or from the Islands. I am not worried about our territorial waters. They are effectively preserved by this legislation. I am thinking of the inland waters. It was in respect of those that the claim was originally sustained and has always been maintained by us. That claim has been stated by Deputy Dillon and myself and I take the Minister's assurance that no part of that substantial claim is being waived or is intended to be waived by this Bill.

Mr. Aiken

No part of it is intended to be waived or is waived in this Bill. Section 5 extends the territorial waters of the State.

Mr. McGilligan

Is the State the Thirty-Two Counties or the Twenty-Six Counties? Section 5 refers to the waters of the State.

Mr. Aiken

The State as defined in the Constitution.

Mr. McGilligan

That does not meet my point.

Question put and agreed to.

Bill reported without amendment, and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Dillon

On the Final Stage, I want the Minister for External Affairs to refer to the points raised by Deputy McGilligan and myself. These points should be carefully examined. I agree with the Minister that it is desirable to pass the Bill so that the new baselines should be drawn at the earliest possible date. At the same time I do not think we should do anything by inadvertence which might embarrass us at some future date. I am satisfied, if the Minister, after full consultation with those competent to advise him, is satisfied that no existing claim which has been sustained by this country in respect of our territorial waters is being waived or prejudiced by the terms of this Bill.

If there is an amendment required to safeguard that situation I would ask the Minister not to hesitate to introduce it in the Seanad even if that involves some little delay in drawing the new baselines. The results would be most unfortunate if, by inadvertence, we did something of that kind and, with an improper appreciation of its gravity, we allowed the thing to slide in order to get this Bill into operation a few months earlier than it otherwise might be. We should take all proper steps to preserve our constitutional claims which are, after all, matters of substance. I would not like to pass the Bill outright without an assurance from the Minister that if it did emerge that there was something in the points we have raised he would introduce an amendment in the Seanad to deal with it.

Mr. Aiken

The matter was examined in the course of the preparation of the heads of the Bill and I can assure Deputy Dillon and Deputy McGilligan that nothing in this Act waives or abrogates any claim we have to any territorial waters around our coast. Its net effect is to add to our territorial waters.

Question put and agreed to.