Walter Finch
GIBRALTAR has invited Spain to bring its claims to the Rock’s territorial waters to ‘any international tribunal’ and settle the centuries-long issue once and for all.
It comes after Spain’s foreign minister, Jose Manuel Albares, revealed in a letter seen by the Olive Press that a verbal protest was lodged with the British embassy over the controversial Eastside marina development in August.
“Any construction or landfill [by Gibraltar] in territory not ceded in the Treaty of Utrecht constitutes a violation of the sovereignty and territorial integrity of Spain,” Albares claimed in Spain’s latest iteration of its claims to Gibraltar’s waters.
READ MORE: Exclusive: Gibraltar is about to smash past the 40,000 population barrier – but can it cope?
The Gibraltar government told the Olive Press in response: “Any international tribunal that fairly considers these matters would decide that the waters are British full stop.”
It added that Madrid ‘understands this’.
“Even retired Spanish diplomats have confirmed that the Spanish Ministry of Foreign Affairs privately understands that to be the case, despite their nonsensical public position,” it added.
The issue of the territorial waters has set a pattern of contention for decades.
The Spanish navy and Guardia Civil vessels make frequent incursions into disputed British waters in order to ‘assert their claim of sovereignty’, while the UK lodges formal complaints with Madrid in response.
The most recent incidents involved a Spanish Navy patrol ship passing within one kilometre of Gibraltar’s eastern shoreline in August, while just two weeks before a Guardia Civil boat had sailed back and forth just a few hundred metres from bathers on Eastern Beach (Madrid contends that those bathers were swimming in Spanish waters.)
Meanwhile, the issue of Spanish fishing vessels trawling in what Gibraltar and the UK consider to be British Gibraltar Territorial Waters is a perennial source of tension.
However, despite the history of constant incursions and harassment, Spain has been reluctant to take the issue of sovereignty to a tribunal such as the International Court of Justice in the Hague.
The most recent formal invitation to settle the issue ‘once and for all’ came back in 1966, when Spain refused a proposal from Britain to take the issue to the ICJ.
Since then, the Gibraltar government has claimed that the invitation is open.
But Spain’s own foreign minister in 2015, José Manuel García-Margallo, acknowledged Spain’s maximal position that it owned all the waters around the Rock would be difficult to defend in court.
At the heart of the dispute lies the ambiguity in the wording of the 1713 Treaty of Utrecht, which ceded control of Gibraltar to the United Kingdom.
The Spanish government claims the treaty did not cede the waters around the Rock as it made no mention of it in the text.
Whereas scholars of international maritime law note that no mention was made because, over 300 years ago, concepts of delineated territorial waters did not exist.
Meanwhile, the Gibraltar government refers to the United Nations Convention on the Law of the Sea (UNCLOS) which provides for a three mile territorial sea generated by every coastal state, ‘with the possibility to claim up to twelve miles where the geography allows.’
Spain ratified the United Nations Convention on the Law of the Sea (UNCLOS) on 15 January 1997, but issued a declaration at the time asserting that Gibraltar does not generate territorial water or an exclusive economic zone (EEZ).
The Gibraltar government noted: [This] declaration entered in UNCLOS simply records the traditional political view of Madrid and it has no binding legal effect of any kind.”
It added: “The waters around Gibraltar are indisputably British under international law and no amount of political posturing on the Spanish side will ever change that.”
“In the case of Gibraltar, in international law, the UNCLOS means Gibraltar can claim three miles to the east and the south and the median line in the Bay, although the UK is entitled to claim those twelve miles where possible.”
“It is worth recalling that a top legal adviser to the Spanish Foreign Ministry itself, Jose Antonio de Yturriaga, published a paper on retirement which indicated that Madrid’s claim to Gibraltar’s territorial sea was weak and had no legal basis,” the government concluded.
