Thursday, 3 June 2021
Maritime Jurisdiction Bill 2021 [Seanad]: Second Stage
Colm Brophy (Dublin South West, Fine Gael)
I move: "That the Bill be now read a Second Time."
This Bill is being brought forward to consolidate in one stand-alone enactment the State's maritime jurisdiction legislation and to update it to reflect recent developments in international law. It is a technical Bill that establishes in domestic law the framework of different maritime zones of national jurisdiction recognised by international law. Within those zones a coastal state is entitled to regulate human activity only to the extent permitted by international law. Within each zone states have different sets of rights, which I will explain shortly. It is important to emphasise at this stage, however, that the purpose of the Bill is simply to provide for those zones and their limits in domestic law. Separate legislation regulates different activities within those zones, depending on the activity concerned, and that is not the purpose of the Bill.
The regulation by states of human activity at sea is governed in the first instance by the international law of the sea and, as I have said, a state may only regulate an activity at sea to the extent permitted by international law. The oceans and seas are shared spaces in which different interests of states compete. Unsurprisingly, coastal states may wish to exclusively control activity in their coastal waters while all states have an interest in preserving freedom of navigation and other freedoms of the seas. International law seeks to balance these different interests.
The development of international law in this field has been greatly influenced by advances in technology. These advances have led to enormous increases in both the scope and scale of human activity at sea. During the last century, the age-old division of the seas between, on the one hand, a narrow territorial sea to which the sovereignty of the coastal state extended and, on the other, the high seas beyond the territorial sea came to be regarded as inadequate to deal with this increased activity. A number of efforts were made to develop international law, beginning with the 1930 Hague Conference under the auspices of the old League of Nations and culminating in the Third United Nations Conference on the Law of the Sea, which met for ten years from 1973. That conference adopted the 1982 United Nations Convention on the Law of the Sea, which established a comprehensive framework within which all activity in, on and under the seas can be regulated. The convention was ratified by Ireland in 1996 and currently has 168 state parties.
The 1982 convention recognises five different maritime zones of national jurisdiction within which the coastal state has the exclusive right to regulate activity to different extents. In general, the closer the zone to the coastal state's land territory, the more control it may exercise over activity within that zone. The zones of national jurisdiction are the internal waters, the territorial sea that may extend to a maximum distance of 12 nautical miles, the contiguous zone, the exclusive economic zone that may extend to a maximum distance of 200 nautical miles and the continental shelf, comprising the seabed below and, in some cases, beyond the exclusive economic zone.
Beyond these zones are the high seas and the "area", which is the deep seabed beyond the continental shelves of states. A different legal regime applies within each zone and so a coastal state has a different suite of rights and duties within each zone. What activities a state may regulate will depend on the zone in which they are carried out. In general, the international law of the sea seeks to strike a balance between the jurisdiction of the coastal state to regulate activity in its coastal waters and the jurisdiction of the flag state over the vessel from which that activity is being carried out. A coastal state may not assume for itself greater jurisdiction than has been recognised by the convention without intruding on the jurisdiction recognised as belonging to the flag state. The purposes of the Maritime Jurisdiction Bill, therefore, are to provide in domestic law for the establishment and delineation of each maritime zone and to clarify the State's rights within each one.
The Oireachtas first made provision for the maritime jurisdiction of the state in the Maritime Jurisdiction Act 1959. That Act established the outer limit of the territorial sea at three nautical miles and made provision for a straight baseline system. It was amended in 1964 and again in 1988 to reflect relevant developments in international law. Subsequently an attempt to consolidate this legislation was made in Part 3 of the Sea-Fisheries and Maritime Jurisdiction Act 2006, which also established the State's exclusive economic zone. Separately the Continental Shelf Act 1968 conferred power on the Government to designate as Irish the continental shelf seabed beyond the territorial sea.
This Bill is being brought forward now for a number of reasons. First, the Bill will bring the State's maritime jurisdiction law up to date, reflecting in particular developments in international law and practice in recent years. The Bill sets out in detail the sovereign rights and jurisdiction the State may exercise on the continental shelf and within the exclusive economic zone, in accordance with international law. As Deputies will be aware, it is expected that increased levels of activity and development will take place in the exclusive economic zone in coming years, in particular with the production of offshore renewable energy from floating installations.
Second, the Bill will consolidate the State's maritime jurisdiction legislation in one accessible, stand-alone enactment. This is particularly important in the context of the new national marine planning framework and the forthcoming marine planning and development management Bill. Third, the Bill will ensure the exercise of order-making powers is guided by policies and principles linked to the detailed rules set out in the 1982 convention.
The Bill consists of 33 sections and two Schedules. Many of these provisions re-enact, with updates, provisions of the 1968 and 2006 Acts. I draw particular attention to the following provisions. Section 6 of the Bill deals with the baseline and replaces and builds on section 85 of the 2006 Act. It establishes the low water mark along the coast as the normal baseline from which the breadth of the State's maritime zones is measured and clarifies for completeness that this includes the straight line across the mouth of a river where that river flows directly into the sea. It also provides a power enabling the Government to prescribe by order straight baselines and bay closing lines in accordance with the relevant provisions of the 1982 convention and preserves the existing straight baselines and bay closing line orders.
Section 7 defines the State's territorial sea. The 1959 Act and subsequent legislation used the term "territorial seas" but the singular 'sea', as used by the 1982 convention and other instruments of international law, is now employed. A power to prescribe by order boundaries in the territorial sea is also introduced. Section 9 is a new provision and clarifies for the avoidance of doubt both that the sovereignty of the State extends to the territorial sea and that the State owns the seabed of the territorial sea, as well as the mineral and other non-living natural resources located there and all forms of potential energy in, on, under and above the territorial sea.
Section 10 extends the State's criminal jurisdiction to cover offences committed on or by foreign vessels in the territorial sea and section 11 sets out the procedure to apply in prosecutions of such offences. Section 12 defines the State's contiguous zone, which is the zone within which a coastal state may enforce its customs, immigration and fiscal rules and where it has jurisdiction to protect historic wrecks and archaeological objects. It lies outside the territorial sea and may extend to a maximum distance of 24 nautical miles from the baseline. Section 13 defines the State's exclusive economic zone, providing a power enabling the Government to prescribe by order the boundaries of the zone in accordance with the 1982 convention and preserves the existing boundaries order.
Section 14 sets out the sovereign rights and jurisdiction enjoyed by the State within the exclusive economic zone. As part of the compromise reached at the Third United Nations conference, coastal states do not enjoy sovereignty within the exclusive economic zone, as they do within the territorial seas. Instead they have a more limited set of sovereign and jurisdictional rights relating to the exploitation of natural resources and the protection of the marine environment. However, these sovereign and jurisdictional rights are exclusive and cannot be exercised by any other state. This more limited set of sovereign and jurisdictional rights enables the preservation of many of the freedoms of the high seas within the exclusive economic zone, in particular the freedom of navigation for the vessels of all states.
Section 15 clarifies the criminal and civil jurisdiction of the State in the exclusive economic zone. Sections 16 to 19, inclusive, replace sections 2 and 3 of the Continental Shelf Act 1968, which will be repealed. Section 16 defines the continental shelf in accordance with the convention and sets out how the outer limit of the continental shelf is to be determined.
Section 17 provides a power enabling the Government by order to designate seabed within the outer limit as Irish continental shelf and preserves the existing designation orders. Section 18 sets out the sovereign and jurisdictional rights enjoyed by the State on, in and under the continental shelf in accordance with the convention.
The legal regime of the continental shelf is concerned mainly with the exploitation of the non-living natural resources located there, in particular the oil, gas and other mineral reserves. Section 19 clarifies the criminal and civil jurisdiction of the State on the continental shelf.
Section 22 makes it an offence to commit on board an Irish vessel beyond the territorial sea any act which would be an offence if committed within the State. A number of enactments already provide for this in respect of specific offences, such as offences under the Cluster Munitions and Anti-Personnel Mines Act 2008 and the Biological Weapons Act 2011. However, given that the primary jurisdiction over any ship is the jurisdiction of the flag state, the opportunity is being taken now to extend the criminal jurisdiction of the State to all Irish vessels in respect of any act committed outside the State which, if committed inside the State, would be a criminal offence. This is already the position with offences committed on board Irish registered aircraft under section 2 of the Air Navigation and Transport Act 1973.
Section 24 provides that proceedings for an offence under the Bill may be taken in any place in the State. Sections 25 to 33 make technical amendments to a number of enactments to reflect changes that will be effected by the present Bill.
The Schedule 1 to the Bill sets out the texts of relevant parts of the 1982 United Nations Convention on the Law of the Sea. These are: Part II, which deals with the territorial sea and the contiguous zone; Part V, which deals with the exclusive economic zone; and Part VI, which deals with the continental shelf. Schedule 2 is a table of consequential amendments of other enactments.
As I said, the Bill will consolidate and update the State's maritime jurisdiction law, as well as making it more accessible in one stand-alone enactment. I thank Deputies for their consideration and I commend the Bill to the House.