HL Deb 02 March 1987 vol 485 cc442-9

3.8 p.m.

Report received.

Lord Campbell of Croy moved Amendment No. 1:

After Clause 1, insert the following new clause:

("Passage through straits Where extension of the territorial sea in accordance with the provisions of this Act makes it impossible for vessels to pass through channels or straits which have been accepted as international routes without entering the territorial sea of the United Kingdom or of another state, rights of passage will be observed consonant with current international law and practice.")

The noble Lord said: My Lords, this is a probing amendment, the object of which is to seek clarity regarding international routes near our shores. One effect of the Bill is to convert three international routes from high seas to territorial sea. The most obvious of the three routes is the Straits of Dover. At the narrowest point it is less than 24 miles, and France already administers a territorial sea of 12 miles.

At present, vessels passing through the English Channel can choose a course which keeps them within the high seas, without having to enter the French 12-mile or the British 3-mile territorial sea. That will change when the Bill has been enacted and brought into force. The other two straits affected are at the northern end of Britain. One is the Fair Isle Gap and the other the North Channel. In each of those cases, the Bill extends the UK territorial sea from each side.

Consequently, there are at least three channels where foreign vessels have in the past been able to stay in international waters—the high seas—but in future they will at some stage of their passage be in the British territorial sea or, in the case of Dover, the French territorial sea. Those vessels can expect rather more than the rights to be experienced in the rest of the territorial sea; that is to say, if they were, for example, simply sailing within 12 miles of the coasts of Cumbria, Ayrshire or East Anglia.

The rights normally expected in passage through international straits include that no prior notification is necessary for civil or military aircraft and that submarines can remain submerged. I remind your Lordships that they have to be on the surface in the territorial sea elsewhere.

In those circumstances, the wording of my new clause provides: rights of passage will be observed consonant with current international law and practice". I draw attention to those words because international law in these matters is still evolving. The United Nations Convention on the Law of the Sea, in the sections dealing with territorial seas and related matters, was accepted by virtually all the members of the United Nations. The section which was not agreed by some members, including the United States and the United Kingdom, was on a different subject; namely, deep-sea mining.

Because all the nations which participated in the sessions of the United Nations conference, ending about three years ago, have not yet signed the convention, uncontroversial elements of it are likely to be put into effect as customary law. This is what the United Kingdom appears to be doing in this Bill. As your Lordships know, I fully support the Bill's purposes. I should like to give every encouragement to the Government in the part they are playing internationally while changes are being made, such as extending the territorial sea.

All maritime countries stand to benefit from freedom of navigation. The rest of the world is also likely to gain from the advantages to trade and to shipping of using the shorter, direct routes. It is to be hoped that governments in all parts of the world where international sea and air routes pass through narrow channels will adopt policies which continue the principles that I have outlined. I beg to move.

Lord Denning

My Lords, I support this probing amendment. My noble friend is probably going back to the Corfu incident in October 1946 when our destroyers went up the Corfu Channel between Albania and Greece. Two of them struck mines and were damaged, and 83 of our officers and men were killed or injured. The question was whether Albania was responsible, under international law, for putting the mines there. The International Court of Justice held that it was wrong because no notice or warning had been given of the presence of those mines. Albania was therefore guilty of a breach of international law. Compensation was ordered to be paid to our people. I do not know whether it has ever been paid.

A noble Lord

My Lords, no.

Lord Denning

My Lords, that illustrates the importance of the right of innocent passage for merchant ships and warships not just through the high seas but, in proper cases, through the territorial seas.

The purpose of this amendment is to make the law as certain as it can be with regard to the right of innocent passage through straits such as those tiny noble friend mentioned. At the moment, international law on the matter is entirely uncertain. There was a definition in the 1958 convention which said: Passage is innocent so long as it is not prejudicial to the peace, good order and security of the coastal state". Commentators have said that that is a matter of some difficulty. It was thought to be of such importance and uncertainty that it was much discussed at the United Nations Conference on the Law of Sea in the late 1970s. Brownlie, one of the commentators, said: The maritime states, faced with expanding claims to territorial seas affecting many seaways, were concerned to provide firmer outlines for this right. As my noble friend has said, that Convention on the Law of the Sea was agreed by practically everybody. Articles 18 and 19 contained a clear and definite definition of the right to and meaning of innocent passage. It is too long for me to read now. The Government accepted the convention, at least to that extent. It has not been signed by everybody. We did not sign it because, as my noble friend said, there was an argument about deep-sea mining and the like. I hope that the meaning of innocent passage, as defined in that convention, will be accepted.

It is open to Her Majesty's Government to say—without waiting for customary law to develop—that those provisions as to innocent passage in the 1982 convention should be applied and recognised in English law, especially over the territorial seas where we have sovereignty. I support the amendment.

3.15 p.m.

Lord Harvington

My Lords, I should like to ask my noble friend a short question. It will be in your Lordships' recollection that the English Channel is divided so that there are two lanes. One lane goes down channel on the British side and the other lane goes up channel on the French side. Those two channels cause a problem when they reach the Straits of Dover. Although it is just possible to keep the lanes separate now, the Straits of Dover are one of the most dangerous and frequented passages in the world. People, including yachtsmen, have been prosecuted for not crossing the lanes at the proper angle, as defined, and making the crossing too acute or obtuse depending upon which way one looks at it.

Is there anything in the Bill which affects that? If so, will my noble friend assure the House that the necessary steps will be taken, no doubt with international agreement, to rectify any difficulties which may occur with regard to the convergence of those lanes?

Lord Silkin of Dulwich

My Lords, we welcome the probing amendment moved by the noble Lord. He has drawn attention to what appears to be an extremely important point and one which arises as a direct result of the Bill's provisions, coupled with the fact, as has been pointed out, that we are not a party to the United Nations convention.

The Government should make a very clear statement of policy as to how they propose to tackle this difficulty in a way which avoids lessening the rights of those who at the moment have rights of passage through international routes which will be affected by the Bill. I can understand that it may not be possible to incorporate the safeguards within the Bill but a clear statement is necessary.

Baroness Young

My Lords, I was very glad to hear from my noble friend Lord Campbell of Croy that this was a probing amendment. The reception it has received from the noble and learned Lord, Lord Silkin, and from others of your Lordships who have spoken indicates that they see it in that light. I hope that I can give my noble friend the assurances that he requires.

The Government share the view of my noble friend on the importance of navigation in straits and I am glad to reaffirm it on this occasion. Perhaps I can say to my noble friend how grateful I have been for his support over this Bill at the Committee stage and the support that it has received from all parts of the House. As I explained at Second Reading, there are good reasons to support the view that a special regime for certain important straits is appropriate, as indeed was envisaged at the United Nations Law of the Sea Conference, to which my noble friend has made reference.

Around the United Kingdom the appropriate straits are the Fair Isle Gap between Shetland and Orkney, the North Channel and the Straits of Dover. In such straits, as I said at Second Reading, there is a right of unimpeded passage for merchant vessels and warships, the right of overflight and the right of submerged passage for submarines. We believe that the various freedoms involved in the passage through such straits have been widely respected and that other countries will understand and support this position.

Perhaps I may say in answer to my noble friend Lord Harvington that he made a very important point, but navigation in the straits is an issue which falls outside the terms of this Bill because nothing in this Bill affects the sea lanes themselves.

The noble and learned Lord, Lord Denning, in his remarks quoted the case of the Corfu Channel incident, which illustrates the importance of passage through straits. However, as I hope my noble friend will understand from what I have said previously, we do not believe either that it is necessary or that it would strengthen our position to incorporate a general provision on passage in straits in this Bill. This would not be appropriate in a Bill which is to provide the necessary statutory provisions for the extension of the territorial sea rather than to regulate specific elements of the substantive regime within the territorial sea, broad or narrow.

With that explanation, and I hope having reaffirmed the Government's close interest in this question that my noble friend has raised, I hope that he will feel able to withdraw his amendment.

Lord Campbell of Croy

My Lords, I am very grateful for the support from the noble and learned Lords, Lord Denning and Lord Silkin of Dulwich, for the principles in my new clause. I am also grateful to my noble friend Lord Harvington for raising the question of the traffic through the English Channel and its present divisions into two lanes, and for pointing out the problems that there may be in the future. My noble friend is an experienced navigator of the Channel but, I understand, in rather smaller vessels than most of those that pass through. I am extremely grateful to my noble friend Lady Young for explaining the position so clearly. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denning moved Amendment No. 2:

After Clause 1, insert the following new clause:

("1958 Convention. The provisions of the Convention done at Geneva on 29th April 1958 and ratified by the United Kingdom and many other states, in so far as they relate to the territorial sea (namely Articles 1 to 23 inclusive) shall apply to the breadth of the territorial sea prescribed by and under section 1 above.").

The noble and learned Lord said: My Lords, I shall speak to this amendment and the next one together. This is a probing amendment. I am following up what my noble friend Lord Kennet said on Second Reading, referring to this expanded area of up to 12 miles. What international law do the Government propose to adhere to, to be guided by and to enforce in the new and enlarged territorial sea? Do the Government propose to recognise, enforce and be guided by the provisions of the 1982 convention, or will the Government go by the 1958 convention?

The two amendments which I have put forward are designed to elucidate that question. Are the Government and all of us to adhere to the terms of the 1958 convention which was signed and ratified, I gather, as part of our law; or are we to go by the 1982 convention which was agreed by almost everyone at the United Nations Law of the Sea Conference and not ratified or signed only because of another matter altogether? In 1958 the conference on the territorial sea went into that subject most carefully. It stated what the limits of the territorial sea and the rights of innocent passage were in 1958. That is what we agreed to. I understand that that convention is now part of international law.

Since 1958 things have developed greatly. When the 1982 convention was passed and agreed by most countries it was said that developments since 1958 had accentuated the need for a new and generally acceptable convention on the law of the sea. In another article it is stated that this convention shall prevail as between states parties over the 1958 convention. There is the recommendation. Instead of having the 1958 convention as part of our law, framed as it was then and agreed by practically everyone, we ought to bring it up to date to include the 1982 convention, which is very detailed. The convention has brought in an important new article about the meaning of innocent passage. It also deals with nuclear ships and so forth going through the seas.

All these matters are dealt with by the 1982 convention but not by the 1958 convention. It is very important that we should state—as I hope will be stated—that the Convention on the Law of the Sea—agreed by almost everyone in 1982 and not signed for a fortuitous reason; because of the deep sea mining—should be accepted as part of the international law of the sea today so far as it concerns the internationl law.

Although I put forward this amendment to this Bill I shall be quite content if the Government accept it in principle and tell us in principle by what convention they will be bound or will apply in the future. The Government can do so without Parliament. I read a short passage from a judgment by the late Lord Diplock in the case of the Post Office v. Estuary Radio Limited: It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or received sovereignty or jurisdiction. For such extension the authority of Parliament is not required. The Queen's Courts, upon being informed by an Order in Council or by the appropriate Minister or Law Officer, of the Crown's claim to sovereignty or jurisdiction … must give effect to it and we are bound by it". Therefore, it is not necessary for the Government to trouble the courts or Parliament, but they can assure us and, I hope, make matters clear. All writers of textbooks on international law will then know the correct situation, and all the books will clearly set out the law of the sea, rather than leaving the matter to further discussion and argument. At all events, let it be stated quite clearly as it is stated in the 1982 convention, especially on controversial subjects such as nuclear powered ships and the meaning of "innocent passage". I hope that the Government will feel able to answer the question of the noble Lord, Lord Kennet, by saying that the law ought to be observed in our own territorial sea over which we have sovereignty, and that the law to be observed, applied and enforced is the law set out in the 1982 convention. I beg to move.

3.30 p.m.

Lord Silkin of Dulwich

My Lords, as in the case of the first amendment, which was moved by the noble Lord, Lord Campbell of Croy, I am happy to support Amendments Nos. 2 and 3 as probing amendments, as they were advanced by the noble and learned Lord, Lord Denning. I can particularly support the new clause, Amendment No. 3, because we on this side feel very strongly that events have marched far since 1958 and the provisions of the United Nations convention 1982 are already to a very large extent the common view of humanity. It is certainly time that, as regards matters germane to this legislation, this country should accept as binding the provisions of that convention. I agree with the noble and learned Lord that the correct course is a statement rather than to have a provision in the Bill. I hope that such a statement will soon be forthcoming.

Baroness Young

My Lords, I am glad that the noble and learned Lord, Lord Denning, has indicated that, in putting down these two amendments at Report, they are probing amendments. I listened with care to what the noble and learned Lord, Lord Silkin, said in supporting the amendments as probing amendments. I hope that I can give both noble and learned Lords the explanation that they require.

I take the point that the noble and learned Lord. Lord Denning, attached his remarks to the question asked by the noble and learned Lord, Lord Kennet, at Second Reading. It would appear that the noble and learned Lord is interested in the relationship between the 1958 convention and the 1982 convention and in our position in that regard.

I should recall to the House where the conventions stand. The 1958 convention is now nearly 30 years old. Naturally, in the intervening years much consideration has been given to its terms. At the UN Law of the Sea Convention from 1973 to 1982, though much wording was carried over from the earlier convention, some changes were made. However, the general thrust of the two conventions is much the same as it was in the past as regards the territorial sea, to which the noble and learned Lord's amendment refers. Indeed, some apparent differences in the two sets of articles which he names are not in fact substantial. Some formulations which figure as interpretive material in the preparative work on the 1958 convention were carried explicitly into the text of the 1982 convention. There is a fuller mention of traffic separation schemes for the safety of navigation because since 1958 the International Maritime Organisation has been extremely active in this field. Other provisions may be regarded as clarifications of the earlier text.

The 1982 convention is not in force and has achieved only just over half the number of ratifications which would bring it into force among the ratifying parties. The United Kingdom did not sign it. Nevertheless, the effect of the wordings of the convention can be seen to some extent in state practice in certain fields. The provisions on fisheries, which were developed at an early stage in the conference, in part inspired the practice of states in connection with the extension of fishery zones to the 200-mile limit.

The conference and its convention have undoubtedly encouraged the widespread move towards establishing or recognising 12-mile territorial seas to which I referred at Second Reading. Where the elements figuring in the 1982 convention reflect generally accepted state practice, we would expect to observe them. We have already said that we regard the parts of the convention relating to navigation as helpful and we naturally welcome state practice which reflects them as useful. In order to assess the current position in international law one must look not only at the old convention but also at the extent to which modern state practice reflects the newer formulations in the 1982 convention. Such an assessment can be made only by reference to specific points and practice on those points. I hope that that makes clear how we see the relationship between the two conventions.

On the 1982 convention, the sets of articles on the territorial sea in general cover the same ground. The convention is not in force and the United Kingdom has not signed it. For obvious reasons it would not be appropriate to carry its wording into the law of the United Kingdom.

The two conventions in this field are largely similar in content. However, the earlier one is old and the later one is not in force or signed by the United Kingdom. The true position cannot be expressed simply by a choice of texts. I think the most useful thing that I can do is to repeat that, if specific points arose, we should have to examine state practice on the specific points as well as the two texts, and the degree of support for the wordings in them, if they are different.

I hope that, with that rather detailed explanation of our position on these two conventions and their effects in relation to the Bill, the noble and learned Lord will feel able to withdraw his amendments.

Lord Denning

My Lords, I should like to thank the noble Baroness for her explanation. It is completely satisfactory to me. I gather it means that the 1958 convention holds but it is to be interpreted in the light of the 1982 convention. Therefore, in international law we virtually have to look at the 1958 convention in the light of the amendments incorporated in the 1982 convention. I believe and hope that on the whole that position will be satisfactory. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]