Seanad Éireann díospóireacht -
Thursday, 28 Apr 1988

Vol. 119 No. 7

Maritime Jurisdiction (Amendment) Bill, 1987: Second Stage.

Minister of State at the Department of Foreign Affairs (Mr. Calleary)

The Maritime Jurisdiction (Amendment) Bill, 1987, comes before the Seanad, having been passed by the Dáil on 16 March last following an informed and interesting debate. Although it is very short, this Bill is a very important piece of legislation in so far as it extends the sovereignty of the State by extending the width of the territorial sea. I would like, therefore, to explain in some detail the effect of the enactment of the legislation.

First, however, I would like to recall for Senators the areas which will not be affected by this amendment. It will not alter, in any way, the rights of the State in relation to the Continental Shelf around our shores. The Continental Shelf is the natural prolongation of the land under the sea and a coastal State may, in accordance with international law, exercise sovereign rights for the purpose of exploring it and exploiting its natural resources. Ireland is in the happy position of having a very extensive Continental Shelf as defined by international law.

The extension of the territorial sea will not change the extent of our jurisdiction over it or our entitlements, nor will it affect the provisions of the Continental Shelf Act, 1968, or the legislation relating to exploitation of minerals or related activities which come within the Minerals Development Act, 1940, and the Petroleum and Other Minerals Development Act, 1960, all of which Acts regulate activities in relation to minerals on Ireland's Continental Shelf.

The other major resources, which are the living resources around our shores, are governed by the Common Fisheries Policy. This regime applies within Ireland's 200 mile exclusive fishery zone. The extent of this exclusive zone will not be affected by this legislation. The rules relating to fishing in this area will remain as agreed in accordance with the Common Fisheries Policy. I would emphasise that Ireland will continue to have exclusive fishing rights within six miles from the shore or baseline. Similarly, the arrangements which now exist for a system of reciprocity with Northern Ireland fishermen will continue to apply and the rights of other Community countries in areas beyond the six mile limit and stretching out to 200 miles from the coast will remain unchanged.

In practical terms, as Senators will be aware, this means that five of our Community partners are entitled to fish in the six to 12-mile belt around our coast, but in that area may only fish for certain species. Council Regulation (EC) No. 170/83 of 25 January 1983 is the most recent regulation governing these fishing rights.

In the 12-to 200-mile area, all fishing also comes within the European Community's Common Fisheries Policy and the regulations made under it. These regulations lay down the total allowable catches and quotas, and both of these are reviewed annually so that the best use of resources, a balancing of exploitation and conservation, can be achieved. The Common Fisheries Policy will continue to apply as before, and fishing will continue in accordance with it, unaffected by the proposed extension of our territorial waters.

I should, however, also mention here the question of patrolling, which is an important right as well as a duty of this country. The sea area to be patrolled, which extends in the Atlantic as far as 200 nautical miles from the coast, is a vast area and the proper patrolling of it is of primary importance if the regime governing the use of its resources, both living and nonliving, is to be properly applied. This is very much in the national interest, but also in the interest of the wider international community, since the living resources of the seas in particular are a vulnerable commodity, the over-exploitation of which would affect us adversely. Our fishery protection service does excellent work in this regard. Community funds helped us to improve patrolling capacity, and we are at present pursuing an application for further funding for what the Government see as a very important matter and one where the co-operation of the Community and its members will be to the benefit of all.

I might also say that among the developments in international law has been general acceptance by the international community that coastal States may claim an exclusive economic zone out to a limit of 200 n.m. This is a new concept, developed during the UN Conference on the Law of the Sea, which is contained in the provisions of the Law of the Sea Convention. It is now being gradually applied by coastal states around the world. It is an arbitrary zone, unlike the Continental Shelf, which is a natural feature and therefore irregular in many respects. Within a 200-mile exclusive economic zone, which in Ireland's case would coincide with our exclusive fishing zone, a coastal State can exercise rights of exploration and exploitation and wide jurisdiction with regard to the activities which may take place therein.

Ireland has not yet claimed such a zone, though it is hoped appropriate legislation can be prepared so that Ireland, in line with other countries, may, before too long, also lay claim to an exclusive economic zone. This is again a separate maritime area, and I refer to it here to distinguish if from other zones, such as the territorial sea, which is what we are now considering. The present extension of the territorial sea will not affect any rights which Ireland, in future, may claim in an exclusive economic zone.

Finally, with regard to matters which will not be affected by the current legislation, I must stress the position of the State with respect to the national territory. The Bill now under discussion cannot affect the State's position as laid down in the Constitution which provides that the national territory consists of the whole island of Ireland, its islands and the territorial seas. What is now being proposed is that the territorial seas be extended from three to 12 nautical miles from baselines, and this legislation is subject to Articles 2 and 3 of the Constitution in respect of Northern Ireland and the waters off its coast.

I now turn to the background to the developments in this field of coastal State jurisdiction, and to the purpose of the Maritime Jurisdiction (Amendment) Bill now before you. Few topics have provoked more controversy or elicited more divergent views and opinions back through history than the subject of coastal State jurisdiction over the seas, and in particular territorial waters. Roman law passed on to posterity the concept of the freedom of the seas. In later centuries, however, nations continued with varying degrees of success at different periods in history to claim control over the oceans, working out from the shore. They sought in some respects to erode the freedom of the seas by vague and unfounded claims, culminating perhaps in the 16th century when even the Atlantic and Pacific Oceans were divided up with purported exclusive rights of navigation and a monopoly of commerce by certain countries. It was not until considerably later that the concept of the freedom of the seas was finally re-established.

Despite being jealously guarded, this freedom continued to be constantly at risk. In particular, it began to come into conflict with another established principle, that of protection. Coastal States asserted a right to protect their citizens against invasion or interference and eventually succeeded in establishing an entitlement to sovereignty over an adjacent area of coastal waters. This is the basis on which international law now recognises the concept of the territorial sea to which the sovereignty of the State extends. Even with the recognition of this right for coastal States, there remained a long period of uncertainty in which no agreed limit to this maritime area was established.

In more recent times, several major international conferences failed to achieve agreement on this issue. International practice and the acceptance of a three-mile territorial sea limit by the majority of States established as customary law the coastal State's right to a similar belt of sea adjacent to its coast. The UN Convention on the Law of the Sea, adopted as recently as 1982, is the first multilateral convention to include among its provisions one which established the maximum extent of the territorial sea to which a coastal State may lay claim. During the negotiations at the conference, a large number of States were of the view that the existing three-mile limit was no longer the most appropriate. They sought a wider area of sovereignty.

Eventually the provision, which is included in the Convention, established that the outer limit of the territorial sea shall not extend beyond 12 nautical miles from baselines. While this agreed limit was only achieved with considerable difficulty in the negotiations, it is now virtually universally applied and accepted, as evidenced by the fact that by the end of last year 103 States had established a territorial sea taking advantage of this rule, which is no longer disputed by landlocked countries. Of the European Community's 11 coastal States, only one other, Denmark, still adheres to a three-mile territorial sea. Beyond the outer limit of the territorial sea, the high seas cannot be made subject to the sovereignty of any State and high seas freedoms continue to apply.

The purpose of the Bill now before the Seanad is to establish for this country also a wider territorial sea, in accordance with international law and practice. The manner in which this is being done is by simple amendment of the Maritime Jurisdiction Act, 1959, which is the existing legislation governing the territorial seas of Ireland. The amendment now proposed will provide that the breadth of the territorial seas shall be 12 nautical miles from the nearest point of the baselines.

The baseline is the low water mark along the coast of the mainland or of any island or on any low tide elevation situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island. Where the coastline is deeply indented, international law also provides that baselines may be drawn, joining appropriate points along the coast. The Maritime Jurisdiction Act, 1959, (Straight Baselines) Order, 1959, established straight baselines for Ireland from Carnsore Point around to Malin Head and for the remainder of coastline the baseline is the low water mark along the shore. The baselines, as established in 1959, which are in accordance with international law, do not require any adjustment as a result of the extension of the territorial sea. These baselines are still valid and are the lines from which the outer limit is measured.

While the amendment before Senators is a simple one, it gives rise to important consequences. In the first place, it increases the national territory. In doing so, it extends the sovereignty of the State, not only over the territorial sea, its bed and subsoil, but also includes the airspace over it. The area of application and effect of all legislation is extended correspondingly.

The rights of the State which are thus extended also give rise, under international law, to corresponding duties. The most fundamental of these is the right of all ships to innocent passage through the territorial sea. Such passage means continuous and expeditious navigation by foreign ships for the purpose of traversing that area of sea, whether or not it is for the purpose of entering port. A coastal State may not hamper innocent passage.

Ships exercising this right also have obligations. They must not engage in any action which is prejudicial to the peace, good order or security of the coastal State, and must abide by its laws and regulations. Their passage must be continuous and expeditious and they may not, for example, engage in fishing or research activities, or in any such activity in the territorial sea. The right, it must again be stressed, relates only to passage. Warships, which are entitled to this right also, must stow all weapons. Submarines and other underwater vessels must navigate on the surface and show their flag.

This latter requirement is of particular importance, given the unfortunate incidents which have occurred around our coasts in recent years when fishing vessels, engaged in legitimate fishing activities, have been damaged and endangered by their nets becoming entangled with submarines and their equipment. In this respect, therefore, the dangers which existed in the three- to 12-mile limit should no longer exist since underwater navigation is not permitted. Any vessel which does not comply with these rules may be required to leave Irish territorial waters immediately.

Among the questions which are often raised in relation to innocent passage is whether nuclear vessels may be excluded. I must stress that the territorial sea can in no regard be an exclusion zone where it relates to navigation. The position, under international law, is quite clear. It provides that all ships, and this includes nuclear powered vessels, have the right of innocent passage. Special provisions, however, may be applied to vessels carrying hazardous or dangerous material and, for example, where this is thought to be appropriate, traffic separation schemes may be established where justified for the greater safety of navigation in these waters.

In the territorial sea there is greater control for the State in relation to pollution. No dumping may take place without express prior approval from the State. Senators can rest assured that no permission detrimental to this country will be given, and dumping of any hazardous material will not be allowed. In this regard, I might also mention that the State also has duties. Pollution of the sea can affect not only the immediate coastal area, but neighbouring areas, and international law imposes an obligation on all States to give due consideration to the concerns of other States which may be adversely affected as a result of any dumping or other activity likely to create pollution. The Government take their duty in this regard very seriously, and are committed to the protection and preservation of the marine environment around our coasts. This concern extends to activity legitimately undertaken in our coastal areas which might lead to pollution damage, and to the control of these activities so that no damage will ensue.

As I have indicated, the main section of this Bill, section 2, deals with the substitution of a 12-mile for a three-mile limit. Subsection (3) of section 2 deals with consequential amendments following on from this extension. Section 14 of the 1959 Act, the Principal Act, deals with the adaptation of other enactments. This Bill proposes the amendment of section 14 subsection (1) of the Principal Act, which concerns any legislation which refers to the breadth of the territorial sea as being of three nautical miles, or three miles, or other similar expressions. This amendment is designed to ensure that for the purpose of all legislation, both before and after 1959, the territorial seas shall be taken henceforth to be 12 nautical miles from baselines. The amended section 14 subsection (1) is set out in Part III of the Table to section 2 of this Bill.

The nautical mile is now the generally recognised maritime measurement used internationally and it is, therefore, appropriate to ensure that no ambiguity will arise from different terminology in various enactments and that all references for the future should be to nautical miles. It is not necessary to amend section 14 subsection (2). That subsection does not refer to the breadth of the territorial seas as being of a specific distance. It provides that, for the purposes of all legislation, the territorial seas are as defined in the 1959 Act itself. That Act, therefore, will continue to apply as amended.

In summary, therefore, this Bill is designed to extend the sovereignty of the State. By this legislation we propose to take the maximum advantage permitted by international law on the breadth of the territorial sea and, as a consequence thereof, the State will have greater control over an extended area of the seas around our coasts in areas of pollution, security, customs and research. The State is also committed in that area to affording to the ships of all States, without discrimination, the right of innocent passage and to complying with its international obligations.

I commend the Bill to the Seanad.

Mr. Manning

I thank the Minister for his clear exposition of the contents of the Bill. It is a short Bill. It is straightforward and, as the Minister said, the purpose is to establish for this country a wider territorial sea in accordance with international law and practice.

The Bill, short as it is, raises a number of questions which I would like the Minister to answer. The Minister raised the question of the patrolling of our territorial waters. It is very clear to anybody who has taken an interest in this subject that we do not, at present, have sufficient resources to patrol our territorial waters, as we will probably never have them. As a country, we have taken the decision that we do not want to invest a large proportion of our national income in the provision of extensive defence forces. We have acted on the principle in the past that our neutrality, a policy which has the support of the vast majority of Irish people, would not go hand in hand with a need to build up massive defence forces on the same lines as Sweden or Switzerland. We acted on the assumption that we will not be invaded or, if we are, somebody else will look after us.

The same principle has applied to our patrolling. In recent years there has been greater investment in the resources available to the navy and the air force to patrol our territorial waters, but they are still very far from adequate. Any fisherman will tell you in great detail of the frequent blatant infringements of our current territorial boundaries.

The Minister referred to this problem of patrolling. There is one intriguing reference in the paragraph in which he makes the point that the proper patrolling of European Community territory is very much in the interests of the wider international community. He makes the point that the living resources of the seas are a vulnerable commodity of which over-exploitation would affect all of us adversely. He makes the point that we will be looking for additional resources. If that is all we are looking for, are we just looking for extra funding to beef up our own resources or are we thinking at this stage in terms of co-operation with the naval and air forces of other Community territories to ensure that our resources and Community resources are adequately protected?

I am quite certain that, if we want to take seriously the question of adequate patrolling, we are unlikely to get the funding necessary from the Community to reach that stage. I realise also that the sensible course of working in co-operation with other maritime countries who have a common purpose in patrolling might lead to a de facto infringement of our neutrality. Would the Minister clarify whether the thinking behind this paragraph relates exclusively to funding, or if there is the possibility of co-operation on a more practical, tangible basis?

The Minister referred to the 200 mile exclusive economic zone, which is obviously a matter of enormous importance to Ireland even though as yet, we have not reaped the benefit of the enormous quantities of minerals which almost certainly lie waiting to be discovered in these areas — or waiting until it suits the convenience of the exploration companies to announce that they have been discovered. The Minister makes the point that Ireland has not yet claimed such a zone. Could he tell us why we have not yet claimed such a zone? Is there a question of principle involved, or is it simply that we have not got around to it. Could the Minister tell us how long such a process might take and when we might expect that claims to this type of zone will be made?

With reference to other points in the Minister's speech I am intrigued by the oblique reference to our constitutional position after this Bill has been passed. I am not certain, but is the claim in the Constitution to the entire island of Ireland, its seas and territorial waters, in any way affected by this legislation? Where we will be claiming a 200-mile economic zone and Britain will also be claiming a 200-nautical mile economic zone, where does the boundary line take place in counter claims like that where our claim would have us virtually up against the English coast and vice versa?

The Minister referred to innocent passage through the territorial sea. The word "innocent" must raise many an eyebrow, especially among those people who habitually fish in the Irish Sea, given the use of that water by submarines many of which may well be nuclear, given the range of incidents some of which the Minister referred to and the damage suffered. It is a miracle that, up to this point, there has not been serious loss of life through the activities of the submarines whose passage was anything but innocent. The Minister said that submarines must navigate on the surface and show their flags within this zone. What worries me and what is a characteristc feature of much of the legislation we process through both Houses is how we can ensure that this will be the case. What sanctions do we have to ensure that submarines which are probably engaged in military exercises the very nature of which is secrecy, the very purpose of which is not to be found out, will act as provided for in the Bill? We can say to the people who are three or 12 miles inside Irish territorial waters: "You must now surface, stow your weapons and show your flag", but how can we even begin to ensure that this will happen?

In the same way, how can we get information? Is it obligatory on the British or the Soviet or the American Governments who are carrying out naval exercises within our territorial waters to give us that information? Is there an obligation on those countries to inform us that it is happening, to inform us that they may well be passing through these waters? Though their passage may be innocent, the consequences may not be. What sanctions do we have if, for example, we discover that there are submarines of this nature infringing our rights in that way? What sanctions do we have against those countries. I do not think we have very many.

What sort of accountability is involved in all of this? One could go back to the old way and say there should be greater diplomatic pressure, but our diplomatic clout can only do so much. Our newspapers here forth with indignation at encroachments of this sort and, no matter how much we say in the Houses of the Oireachtas, it all cuts very little ice in Whitehall or in the Pentagon or the Soviet Union that the rights of a small, sovereign, neutral State are infringed in this way. While I support the sentiments in the Minister's speech I have great reservations about our capacity to do anything about infringements of this particular section, which are happening.

Likewise, in the Minister's speech there is a very relevant and timely reference to the question of the carrying of hazardous waste. Senator O'Callaghan has already raised this. Yesterday I raised on the Order of Business the question which will be very relevant to all of this in the near future. I would like the Minister or his Department to react very seriously and promptly to the allegations being made by a very responsible organisation, the Irish Fishermen's Organisation. Frank Doyle of that organisation claimed that the Spanish authorities will be burning waste at sea at a point about 300 nautical miles off the west coast of Ireland and, given the prevailing winds and tides, this may very well have serious consequences for this country. I would like to know if any attempt is being made to find out from the Spanish Government if this is so and if the consequences of this happening have been assessed.

I would like to know if we intend to take whatever action is possible, and it must be the most severe action, within the Community to ensure that anything which will further increase the pollution of our sea and in particular damage our coastal waters or our environment in any way will not be allowed to happen. This report, which was first carried in The Irish Times yesterday, if it is true, and I believe it is well founded, is a very serious development for this country. I would like the Minister to address that question today.

In the same way, we have enormous problems about the control of pollution within our territorial waters. Over the years we have seen the scandalous antisocial activities of the British authorities in the dumping of nuclear waste into the Irish Sea. They have treated the Irish Sea in the same way as certain pig farmers treated Lough Sheelin as a dumping ground for the most dangerous effluent. Whatever the consequences were for people on other islands or even on their own island, this was a matter of no consequence to them.

I now come to the point which I feel most strongly about and about which perhaps we all have a certain sense of helplessness. There are very few issues in Ireland on which all parties would agree, but one of these is the undesirability of Sellafield and, in particular, the outrageous behaviour of the British Government in using the Irish Sea as a dumping ground for waste. Representations have been made at European level, at interGovernmental level — the views of the Irish people have been expressed time after time on this issue. Yet it strikes me, and sadly I think I am right, that all of this has been to no effect. When it comes to the crunch, the cost factor, the security of supply for the British power industry, takes precedence over the concerns, the health and the well-being of the people not just of Ireland but people along the Cumbrian coastline as well. It is with a great deal of sadness that I reflect on the fact that all our protestations and all the right that is on our side seem to cut such little ice with the British authorities on this matter.

I would like the Minister in his reply to indicate whether we can expect to have any greater degree of success in getting the British Government to change their mind than we have had to date. The huffing and puffing and taking strong stances at home or banging the table abroad seem to have brought us very little in all of this. It may well be that there is a need for the Government to take a major Community initiative to ensure that there are proper sanctions against countries who behave in this way. I do not think it will be easy because the nuclear industry is extremely powerful in Germany, France and Britain and it will be very difficult to get the sort of changes we need in this way.

Having said that, I welcome the Bill. I thank the Minister for his brief essay on Roman history in the early part of his speech. He has made the case clearly. We will have no difficulty in supporting this Bill.

Mr. Fitzgerald

Ba mhaith liom ar dtús fáilte a chur roimh an Aire Stáit go dtí an Teach seo, agus freisin ba mhaith liom aontú leis an mBille seo.

This is a very short but important Bill which extends our territorial rights from three to 12 nautical miles. I agree with Senator Manning, that over the years, one of the greatest fears of fishermen has been that of their boats being pulled under water by submarines. Indeed, the authorities in the countries to which these submarines belonged were very slow to admit that the fault lay with their submarines. Years ago there were many old wives tales to the effect that Moby Dick or huge whales had dragged fishermen's boats underwater. We know now that there are submarines moving within our territorial waters, even within the three-mile limit which obtained to date. They have been manoeuvring within those territorial waters for quite some years past.

I do not know how any Government or country can control or restrict submarines. I do not know how we can force submarines to come to the surface in innocent passage through our territorial waters. We must advance a very strong case against this practice. The lucrative fishing stocks within our 12 miles territorial limit are an enormous source of income for us and must be protected. We must emphasise in possible forum, whether in this House, the European Parliament or elsewhere, that countries that use our territorial waters for the innocent passage of their submarines must inform us in some way of that passage. Above all, they must adhere to the relevant regulation that they must travel on the surface, be disarmed, show their flags and so on.

The Sheralga was dragged under water in the Irish Sea approximately four or five years ago. It is amazing that only recently did those fishermen get their claim for compensation finally fixed. Practically six years after the event the British Government admitted that the damage was caused by one of their submarines. In the meantime those fishermen were deprived of their livelihood, jobs and boat and had to wait that length of time to be compensated. I should have thought that any offending Government would have stepped in immediately, admitted that one of their submarines had been the cause of the problem and adequately compensated those involved. It is amazing that only two weeks ago was there a final settlement reached in respect of those fishermen and their vessel.

I might refer to what happened in the past with regard to the smuggling of drugs, gun running, and so on carried on beyond our three mile territorial limit. We could have had naval boats there at the ready to pounce on or apprehend any ship trading illegally or bringing illegal goods into our country but their jurisdiction was limited to those three miles. This meant that one of our naval boats could be traversing our three mile limit with an illegal boat sailing 200 miles beyond our three mile limit. Our naval vessel could not do anything by way of apprehension until the offending vessel had entered our territorial waters.

Therefore, the provisions of this Bill constitute an enormous step forward in that regard. One's visibility at sea is unlike that on land. On land — because of the terrain — one's visibility can be restricted, perhaps, to half a mile or two miles, dependent on the prevalence of mountains or whatever, whereas at sea one can observe possibly as far as the horizon, perhaps 15 or 20 miles. It was ridiculous that to date while our naval vessels could observe activities as far off as the horizon, could observe other vessels engaged in illegal activities, they were powerless to apprehend them. Take the example of the Marita Ann when guns were transferred from one boat to another. Yet our naval vessels had to wait until such time as the offending vessel came within our three mile limit before they could apprehend them.

I welcome the provisions of this Bill because they afford our vessels that much more sea area within which to operate. To date, from a naval point of view, if our vessels were endeavouring to arrest a boat trading illegally or engaging in some other unlawful activity, nearly always the offending vessel could slip, unnoticed, around a point of our headland. With the new 12 mile limit it will not be so easy to do so.

With regard to pollution, I might echo the fears of Senator Manning in regard to the Irish Sea and the dumping of nuclear waste. We must remember that the seas are very different from land. I remember saying here before that we have been ever so lucky that oil flows. I can say without fear of contradiction that, if oil sank to the bottom of the sea, our seas would be dead now from all the oil and pollution in them. There is very little we can do about it. It should be remembered that if one dumps some commodity or substance on land at least it will remain where it is dumped. But if something is dumped at sea, a substance that floats and goes with the tide, it can traverse many seas, ending up on our shores and so on.

I concur with Senator Manning in his call for the closure of nuclear power stations in England, those that dump their waste into our seas. It is not that we are located 200 or 300 miles away; in places the distance is a mere 35 to 40 miles. I have to travel 220 miles to get home this evening. Yet the distance to England is much shorter. Now that we are in the EC there should be legislation introduced and implemented to prevent the dumping of nuclear waste into the Irish Sea. The same law would prohibit us from doing the same thing, which would only be right and proper. The seas must live.

I do not know whether any Member saw a beautiful film made about four years ago, the theme of which was that the seas must live. My plea is that, if the seas die, then we die also. The same principle applies to fresh water in our streams and lakes. If fishlife in that water dies there is nothing left for us because we cannot live without fresh water. In the same way the seas must live. If the seas are polluted and destroyed that must herald the end of life for all of us.

Bearing in mind the limited amount of vessels available to them our Naval Service are giving a great service protecting our territorial waters. Not alone have they been protecting our waters up to the three mile territorial limit — now to be 12 miles — but they are also protecting our fishing rights up to a limit of 200 miles under the agreement reached between ourselves and our EC counterparts. To the best of my knowledge I think their jurisdiction or powers of arrest extend to 200 miles. This means they can apprehend anybody fishing within our 200 mile limit who is not a member of the EC. I agree with Senator Manning that we should have more vessels. Some of ours are now old or obsolete. We know that the minesweepers have become obsolete. The Government must take a decision shortly to invest in more corvettes and minesweepers. This Government and, indeed, the previous one gave our Naval Service an uplift or fillip by the provision of helicopters and new corvettes having the facility to land a helicopter on board. In recent years, therefore, not alone has our Navy been out there but there is also a watch maintained on our waters by helicopters and Army jet personnel.

Professor Murphy

In the early decades of independence the State was preoccupied with establishing sovereignty; that was its major foreign policy preoccupation. By the outbreak of World War II it had indeed succeeded in establishing the sovereignty of the State which had been very curtailed by the original Treaty and Constitution. The question was and remains today: to what extent can a small, relatively powerless State, make its theoretical sovereignty effective and practical? It seems to me that this Bill reflects this dilemma. In that respect little has changed.

While welcoming the Bill and supporting the remarks made by Senator Manning and Senator Fitzgerald, I must say that there is a certain air of unreality about the Bill a certain air of make-belief, a certain unconvincing theme running right through the Bill. In the matter of fisheries it would be great if, first of all, we had done better out of the Common Fisheries Policy. This is part of our deal with the Community that has not really been great for us because of the undeveloped state of our fisheries at the time of accession. Accepting that as it is, the question is: how can we ensure our rights under the Common Fisheries Policy? Like Senator Manning, who politley expressed his reservations about the extent to which we can make our fishing rights effective, I am also very doubtful how far the theory here can be put into practice.

I suppose one way of effective patrolling is to carry the logical extension of the fisheries policy into a common policing policy — that the seas of the Community should be policed by some kind of common patrolling force. I do not think that would interfere with sovereignty to any great extent than sovereignty is limited anyway by our membership of the Community. As someone who is not and was never a very enthusiastic European, nonetheless I am beginning, belatedly, to accept the facts of life. My philosophy now is: if we are in it, let us try to develop it as much as possible. Certainly I would not have any objection to a common patrolling policy.

When we come to the whole business of extending the national territory, extending sovereignty, it seems to me we really are entering a fairytale world. Theoretically, of course, I am delighted that, suddenly, we have acquired more territory and more sovereignty. It would gladden the heart of Eamon de Valera. One of the most interesting items in his papers in the Killiney archives is a draft definition of the national territory. It runs as follows: the national territory shall consist of such territory as, from time to time, will come within the jurisdiction of the State. That suggests a definition of territory which is an infinitely expanding national territory.

Mr. Manning

And crystal clear.

Professor Murphy

Absolutely.

Mr. Calleary

Always a very far-seeing man.

Professor Murphy

Actually, he was probably thinking of Tyrone and Fermanagh rather than the territorial seas. In an age of diminishing sovereignty, it seems to me paradoxical that we are now extending the national territory and extending our sovereignty. I would like to make two points of interest here. I would like to ask the Minister, through the Chair, whether our claim to Rockall now lies dormant and at what if any stage of international arbitration that claim now rests. We have heard little about it for a long time. There is another curiousity about extending national territories of course. Am I not correct in recalling that one nationalist-minded judge in Northern Ireland maintains that the seas around Northern Ireland are within our jurisdiction, in any case, because of the historical argument that, when the Irish Free State was established by the Treaty of December 1921, and came into effect in 1922, but before partition was finalised, before Article 12 of the Treaty was implemented theoretically again the Irish Free State extended to the whole Thirty-two Counties and its territorial waters accordingly? Perhaps somebody could give me details on this one. There is as a judicial point of view that the waters around Northern Ireland do in fact belong to the jurisdiction of this State. Of course this is real never, never land anyway. We all know that the national territory does not consist of Thirty-two Counties, its islands and the territorial seas. The national territory is what we have: what you see is what you get. It is one of my repeated points about the constitutional position of this country that we should accept the definition of the State as being what we have now. This kind of double-think gets us nowhere.

I echo Senator Manning's and Senator Fitzgerald's reservations. Again how effective can we make our aspiration to clean waters? How can we stop the scandalous and cynical behaviour on the part of the British authorities in respect of toxic dumping? How can we stop the Irish Sea, or how can we reverse the position in which the Irish Sea is the largest open cesspool certainly in this part of the world? How can we reverse that? I should like to see some proof — like Senator Fitzgerald and Senator Manning — that there would be some way of getting the British to stop behaving in this scandalous fashion simply because they are bigger and more powerful than we are.

The largest reservation I have about the Bill is its quite incredible and contradictory assurance that we will have to keep on giving rights to all ships of innocent passage even if — as I read it — they are armed with nuclear weapons. How can you reconcile innocent passage with the obscenity of nuclear weapons? In the present argument taking place in Denmark — and it has already been decided on in New Zealand that a State which has any respect for peace should never welcome nuclear-armed ships in its harbours — there is a figure quoted, and generally accepted, that United States military craft are nuclear-armed to the extent of 80 per cent, that 80 per cent of all American military craft carry nuclear weapons. In effect that means that eight out of ten American ships sailing the seas, sailing into ports, carry these nuclear weapons. How can we talk about innocent passage? It is rather like being assured that military aircraft fly over our national territory only with our permission. Here again we are in the never never land of pretence. I hold very strongly that the State should never welcome any ship with nuclear arms, into its harbours. That being said, and these reservations having been voiced, I am in favour of the Bill as I would be in favour of anything which enhances the resources and the power of this country. I would like to receive some assurances about translating theory into practice.

Mr. O'Callaghan

Like previous speakers, I welcome the Bill. It is appropriate that we should endeavour to extend the sphere of our control however effective it may be. When we do acquire or take on board additional territorial waters we should endeavour, as far as possible, to protect them. For that reason I welcome the fisheries protection element built into the provisions of this Bill even though, as Senator Fitzgerald pointed out, our jurisdiction extends to a 200 mile limit in relation to some activities in regard to fisheries protection. Now that we are getting down to the serious business of the protection of fisheries at least we should provide an adequate number of vessels or craft to ensure that we can protect our fish stocks and fishing fleet.

I live in an area where there is an ongoing confrontation with the huge Spanish fleet permanently located off our south west coast with constant abuse of our fisheries by this fleet at times when fish stocks are supposed to be protected, fishing species which are totally protected, killing species of fish which are much too small, which should not be caught at all and so on. There is constant confrontation in that they endeavour to drive the few of our vessels that can go that far out away from the more lucrative fishing grounds by virtue of their greater size. If we seek to protect our fishing stocks and vessels we must provide proper patrol vessels. I look forward to the time when we will have an adequacy of such craft for that purpose.

If the European Community is to have any meaning, for a small country like ours, there has to be some measure of goodwill. In aligning ourselves with east or west blocs we make ourselves much less effective. Senator Murphy correctly referred to the problem of welcoming nuclear-armed vessels. New Zealand and now Denmark from a very early stage adopted a specific position to the effect that they would not allow vessels carrying nuclear weaponry into their territorial waters in any circumstances, for which they have been admired worldwide.

On this subject there tends to be a definite contradiction in terms, in that we allow visits by vessels of friendly nations into many of our ports, vessels carrying nuclear-weaponry. It is a subject to which we should address ourselves. We appear to be somewhat nonchalant in this respect. The whole meaning of innocent passage is subject to question in this regard.

The other aspect of the term "innocent passage" which needs to be addressed is the condition of vessels that seek to avail of the facility afforded by this innocent passage clause. Our country has a proud tradition of providing a safe haven for ships in difficult weather conditions. That being said, there is an obligation on international trading companies with ships at sea to maintain them in good condition. We should not have a recurrence of the Kowloon Bridge incident. It is well known that that vessel was in a defective condition when it came into Bantry Bay last year before there was ever a storm. That additional problem needs to be addressed. If our citizens are expected to welcome with open arms such ships seeking safe or innocent passage, there is an onus on their owners to maintain their vessels in good condition so that they will not damage or cause damage to our coastline.

The dumping of waste is referred to quite specifically in the Bill and is the subject of a motion of mine later today. Possibly I should have addressed it more correctly to the Minister for Foreign Affairs. It is inconceivable that as we are moving into the next century we should still have the phenomenon of dumping of nuclear waste at sea. We seek to learn so much more about conditions at sea nowadays. It is all the more surprising therefore that, at this late stage, as Senator Manning said, we should have the phenomenon of the Spanish Government seeking permission to burn toxic waste 300 nautical miles off our south west coast. The existence of the Oslo Convention means they must seek the permission of somebody, some nation, to burn this waste. No doubt our Department of Foreign Affairs will make our position abundantly clear. We should be trenchantly opposed to any such dumping.

For example, on the west coast of the United States, in the California area where there was significant dumping of nuclear waste in the mid to late fifties there is now considerable evidence that toxic substances have found their way into the food chain, that fish life has been significantly affected, with fish growth and so on having been quite significantly affected. This evidence is quite well documented. Yet we are being asked by a Community colleague in the form of the Spanish Government to subject ourselves to the experiment. We must make our position quite clear on this subject. The matter is referred to in this Bill. While it is obviously outside our territorial waters, there is a Community dimension to this debate to which our Government could address themselves. There has been the suggestion of the dumping by the British Government of a redundant nuclear submarine the same argument must surely apply. We do not know enough about the ramifications of such activity to have any truck with it at all. We should make our position quite clear.

There are other minor provisions of the Bill which are also to be welcomed. For example, I presume they allow us additional control over the preservation of national monuments. I am not sure whether they are specific to this Bill, but nevertheless they are welcome in that respect.

As time goes on other ships of historical significance will be discovered. We have had examples of this off the north west coast where vessels were stripped by unscrupulous people who took the artefacts to other countries. I would be interested to hear the Minister's observations on this. I do not know whether it is relevant to this legislation but if it is I would welcome his comments on it.

In general, this Bill is welcome. As I said at the outset, the most significant aspect of the Bill is that it requires Community goodwill because if our big daddy neighbours are not prepared to recognise the rights of small member states like Ireland, much of the Bill will be rendered superfluous. It is incumbent upon us to continue to endeavour to make our point abundantly clear. As a sovereign State we are entitled to protect ourselves and, for this reason alone, the content of this Bill is welcome.

Mr. Cullimore

Like my colleagues. I welcome this Bill. It is one of the most significant pieces of maritime legislation to come before this House. The Bill seeks to extend the existing three-mile limit of Ireland's territorial jurisdiction to 12 miles. In effect, it proposes to extend our national sovereignty. The Bill confers rights and obligations on us. One of the obligations is that we should maintain our territorial 12 mile limit as a pollution free zone. This is a welcome obligation. All the indications are that the seas will be a source of great development in the future and it is vital that our fishing beds and seas are pollution free. I welcome the right we will have to regulate and control dumping within the 12-mile limit. However, I am very concerned at the Spanish Government's proposal to dump toxic waste 300 miles off our coastline. It is vital that we use all the powers at our disposal to obstruct this dumping.

This legislation will compel nuclear submarines to surface if they are travelling within 12 miles of our territorial waters and they will have to identify themselves if called on to do so. This will help to ensure the safety of our fishermen. In Wexford in particular we welcome this legislation. Many submarines travel around the south east coast, especially in the Tuskar Rock area, which is four nautical miles off our coast. Much damage is being caused to fishermen's nets and gear and it has been suggested by experts that much of this damage has been caused by submarines travelling below water. The fact that submarines will be compelled to sail above water within the 12 miles limit will help to alleviate this problem.

On the question of marine scientific research, coastal States have the exclusive right to regulate, authorise and conduct marine scientific research in their territorial seas. A great deal of research has been conducted within the 12-mile limit and in the future we may have to look further than the 12-mile limit to conduct this research.

The Bill extends the national territory. It gives Ireland increased sovereignty and control over the sea that surrounds her and this is vital from our economic, tourist, research and pollution points of view.

Minister of State at the Department of Foreign Affairs (Mr. Calleary)

First, I want to thank all the Senators who contributed to the debate for raising many wide-ranging points. I welcome the general support the Bill has received and the manner in which the Seanad has dealt with it. I also appreciate very much the importance the Seanad attaches to the Bill and the various points that have been raised. I will try to reply to the very wide-ranging points which have been made.

The Bill proposes to extend the territorial waters from three miles to 12 miles. It does not have very much to do with some of the matters which were raised concerning our rights in relation to fishing which, as I explained in my opening speech, are set out already in Community law but it does, however, give effect to a principle of international law — the right of all States.

Senator Manning raised the question of the exclusive economic zone. The Bill does not affect the State's sovereign right to a 200-mile exclusive economic zone. It is a completely different concept from that of the territorial sea. The exclusive economic zone will require separate legislation. The matter is being examined at present by the relevant Departments. I stress the word "Departments" because there are a number of them involved. While I accept Senator Manning's comments — and I think the matter was referred to by Senator Murphy also — because it is very important to us, I believe the legislation would need to contain very wide provisions to cover all the activities the establishment of such zone would entail.

Senator Manning and Senator Fitzgerald referred to patrolling and asked whether we would consider common patrolling. Each member state of the European Community is responsible for patrolling its own part of the exclusive fishery zone. Again, this is probably an aside to the Bill because it does not relate to fisheries.

I want to pay tribute to the Naval Service for the tremendous and very important work they have done in the past number of years. The extent of their activity is manifest in Cork at present. Many Senators asked whether this Bill will be effective. Of course, there are problems. Senator Murphy asked how we could put the theory into practice. We must first have the theory before we can put it into practice and we should look at the Bill from that point of view. Of course, there will be difficulties. I am not under-estimating the difficulties which will be there but, if the legislation is not in place, we cannot take any steps to try to overcome those difficulties. We are continuing to look for further funding for fishery protection. We are pursuing that with the Commission at present.

The question of dumping and pollution of the sea was raised by probably every Senator who spoke. This is an indication of the concern about dumping that exists in the Seanad, in the Oireachtas generally and throughout the country. On the specific question in relation to the suggestion by the Spanish Government that they would like to dump burned waste, this is outside the ambit of this legislation but I take the points made by the Senators. The Government will continue to monitor that activity. Senators will be aware that all coastal States have the exclusive right to permit, regulate and control dumping in their territorial waters. This Bill purports to extend our territorial waters and that has to be an asset in itself. No permission with regard to dumping will be given that will be detrimental to this country and it is Government policy not to permit the dumping of any hazardous material within our territorial waters. We would expect and insist that other States would also act in accordance with the general international obligation and afford us the same consideration as is our right under international law. We will certainly do all in our power, in relation to the specific instance, to object, in so far as we can, to any dumping which we feel would be detrimental to our natural resources and environment.

Many Senators referred to Sellafield and what is happening there. I suppose it underlines the difficulties which we have, or any nation would have, as a result of people insisting on carrying out activities which have a detrimental effect on other nations. As Senators are probably aware, Ireland has ratified the Paris Convention on the prevention of marine pollution from land based sources and has given effect to it domestically in the Water Pollution Act, 1977, and the Air Pollution Act. We will continue to exhort all States to do likewise and to comply with their international obligations. I can assure Senators that in accordance with international law the Minister for Energy, who has overall responsibility for matters relating to Sellafield, is continuing to pursue the Government's concerns very vigorously with the British. As Senator Manning rightly said, it is one matter in which everybody in this House is of a common mind. That has been made quite clear in the various resolutions on this matter which have been before both the Dáil and the Seanad. We will continue to press the British Government to honour their international obligations in relation to this activity.

Senator Manning and Senator Fitzgerald referred to the Sheralga incident. As Senator Fitzgerald rightly explained, this incident did not occur inside our territorial waters. In future this part of the sea will be in our territorial waters and submarines must be on the surface. I accept fully the point made by Senator Manning on how we might be able to achieve that. I know there will be difficulties with some countries but I believe that most countries will honour their obligations. While we may have doubts about over-flights, etc., I think most countries will be happy enough to honour their obligations under international agreements. I fully agree with the Senator that, if countries do not honour their obligations, particularly in relation to submarines, it will be very hard to take any action. If a submarine does not comply with internationally agreed rules, we can require it to leave Irish territorial waters. If it does not surface there will be a difficulty and I accept fully that that difficulty will exist.

If the incident referred to by Senator Fitzgerald took place now it would be within our territorial waters. I should like to inform the Seanad that, as a result of an Irish initiative, the Assembly of the International Maritime Organisation passed a resolution unanimously on 19 November 1987 recommending that, even in international waters, submerged submarines should, as far as possible, keep away from fishing vessels and any fishing gear connected to them. Again the question can be posed: how can you ensure that? At least it is an initiative that was taken by Ireland. The point in relation to submarines was made by almost all the Senators who spoke, Senator Manning, Senator Fitzgerald, Senator O'Callaghan and Senator Cullimore.

Senator Manning asked whether a military exercise would be allowed in territorial seas. Innocent passage means only passage and no military exercise would be allowed in our territorial seas, particularly if the boats were carrying nuclear weapons. Both Senator Manning and Senator Murphy raised the question of jurisdiction over the waters off Northern Ireland. That is tied up with the overall political solution to the Northern Ireland question and consequently I do not propose to deal with such matters or concepts in the debate on this legislation. As I said, it is dealt with on a political level. Legislation, such as we are processing here today, cannot alter and will not alter the Government's commitment in this regard. As I said in my opening speech, the Bill will be governed by Articles 2 and 3 of the Constitution and, therefore, will not in any way affect the State's position under the Constitution.

Senator Murphy and Senator O'Callaghan referred to nuclear weapons and the New Zealand legislation. That legislation is called the New Zealand Nuclear Free Zone Disarmament and Arms Control Act, 1986. It is important to point out that, while the Act declares that the territorial sea is included in the nuclear free zone, it expressly states in section 12 that it will not affect in any way any ship exercising the right of innocent passage through the territorial sea of New Zealand in accordance with international law and that this would include nuclear powered ships. It does, however, state that all arms must be stowed. The legislation provides that the Prime Minister of New Zealand may grant approval for entry into New Zealand's ports and internal waters, that is inside base lines, to foreign warships only if he is satisfied they are not carrying any nuclear explosive device. This power accords with the exclusive sovereign jurisdiction of all States over their internal waters under international law. If we have reason to suspect that any warship is failing to comply with these international regulations, Irish authorities are entitled to require it to leave Irish territorial waters immediately.

Senator Murphy raised the question of Rockall. First I want to stress that the Government reject the claim of the British Government to ownership of Rockall and jurisdiction over the surrounding seas. That position remains unchanged and what we are discussing here to day does not change, alter or affect that position in any way. The Government feel that a rock of this nature cannot generate extended marine jurisdiction and it follows that British claims to extended marine jurisdiction, for example, exclusive fishery zones based on their purported ownership of the rock, are untenable and would be rejected by any independent international tribunal. The Government are satisfied that the British claims are not in accordance with international law.

A number of Senators expresed views on the division of wider marine zones. These are not connected in any way with the Bill. Any arbitration which may take place between Ireland and Britain will be with respect to the overlapping claims to the Continental Shelf.

Senator O'Callaghan raised the quesiton of accidents at sea and referred in particular to the Kowloon Bridge incident. I concur with what the Senator said in that regard. The Government are very concerned to ensure that such an incident will not occur again. While this Bill is not directly connected with that matter, the House should note that the relevant Departments are continuously monitoring all international developments and our legislation in this area. I would refer in particular in this instance to the Oil Pollution of the Sea (Civil Liability and Compensation) Bill, 1987.

Senator O'Callaghan referred also to the question of archaeological and historical objects. The extension of the territorial sea proposed in the Bill will not affect the legal position on ownership or salvage rights of archaeological or historic wrecks and objects from the sea. Any such wreck or object found in the territorial sea is protected by the National Mounuments (Amendment) Act, 1987. While the identification of ownership is often a complex legal matter, the House can rest assured that the present law will not be affected in any way by this Bill, if enacted, other than by extending its area of application.

I hope I have covered the various points raised by Senators in relation to this legislation which, while it is very short, is of great significance. I should like to thank all the Senators who contributed to the debate and to express my appreciation of the interest shown and the welcome given by them to the Bill.

Question put and agreed to.

Agreed to take remaining Stages today.