Partition of Ireland - Details of The Partition - Division of Territorial Waters - Dispute Arises

Dispute Arises

A particular dispute arose between the Government of the Irish Free State of the one part and the Northern Ireland and UK Governments of the other part over territorial waters in Lough Foyle. Lough Foyle lies between County Londonderry in Northern Ireland and County Donegal in the then Irish Free State. A court case in the Free State in 1923 relating to fishing rights in Lough Foyle held that the Free State’s territorial waters ran right up to the shore of County Londonderry. In 1925, the Chief Justice of the Irish Free State, Hugh Kennedy advised the President of the Executive Council of the Irish Free State, WT Cosgrave as follows:

A Uachtaráin, A Chara dhílis,

I saw in some paper the other day some reference to a claim by the Northerners that they are entitled to the whole of Lough Foyle. It occurred to me that I should drop you a line lest the question of territorial jurisdiction as regards water might be lost sight of. You will remember the point that was made that Northern Ireland consists of certain parliamentary counties and that the Free State consists of the rest of Ireland, so defined by the Government of Ireland Act, 1920; and you will remember that we have always contended that this definition gave us the whole sea shore surrounding the country, together with loughs upon which both Northern Ireland and ourselves abutted.

As far as I could make out - but I never could get anything definite upon it - this view was held in London in the early period of 1922, and was taken, I believe, by the first Law Officers who dealt with our business. Subsequently I was told, but only by hints, that later law officers had given a definite opinion the other way. I know that the Parliamentary Draftsmen were very shaky on the question and nervous about it until they got the later opinion.

Should it not be made clear at the Boundary Commission that we claim to have already in the Free State the whole of Ireland except the territory represented by the parliamentary areas of the Six Counties? The attempt to capture Lough Foyle would be very serious.

Mise do chara,

(HUGH KENNEDY) Chief Justice

In 1927, illegal fishing on Lough Foyle had become so grave that Northern Ireland Prime Minister, James Craig entered into correspondence with his Free State counterpart, W. T. Cosgrave. Craig indicated to Cosgrave that he proposed to introduce a Bill giving the Royal Ulster Constabulary powers to stop and search vessels on Lough Foyle. Cosgrave asserted all of Lough Foyle was Free State territory and that as such a Bill of that nature would be rejected by the Free State and its introduction would create “a very serious situation”. Cosgrave then raised the matter with the British government.

In 1936 in Dáil Éireann, the Minister for External Affairs was asked if he intends to take any steps to safeguard and maintain the rights to fishing in certain parts of Lough Foyle, claimed by and hitherto enjoyed by Free State nationals. The Vice-President (for the Minister for External Affairs), responding, noted that there had been correspondence between the two Governments in recent years. He summarised the position as currently being that:

The matter, therefore, now stands as follows. The Government of Saorstát Eireann are still willing to make temporary administrative arrangements for the preservation of order on the waters of Lough Foyle pending the settlement of the fishery dispute and without prejudice to the general question of jurisdiction. But we decline to accept either of the conditions which the British Government seek to impose as a condition precedent to those arrangements. We decline, that is to say, either (1) to give any undertaking that we will submit the international dispute as to our jurisdiction in the Lough Foyle area to a British Commonwealth Tribunal or (2) to make any agreement with regard to the fishery dispute itself which would prejudice the issue in that dispute or which would purport to remove the legal right of any citizen of Saorstát Eireann to test the claim of the Irish Society or their lessees in the courts of this country.

The Minister was criticised by Opposition politicians for his government's overall indecision on whether the Irish Free State should remain part of the British Commonwealth, a spokesman claiming this was why the Government had such difficulty with the British Government's first pre-condition.