Disputed Status of Gibraltar - Territorial Waters

Territorial Waters

The Treaty of Utrecht did not specify territorial waters. By the first half of the 18th century, the concept of the 3-nautical-mile (5.6 km)-wide sovereign territorial sea emerged and was eventually adopted by most countries as the basis of marine jurisdiction, until the UN Convention on the Law of the Sea 1982, which entered into force in 1995, set a new standard of 12 nautical miles (22 km). British Gibraltar Territorial Waters currently extend up to 3 nautical miles. Spain included a declaration, the content of which was rejected by the UK. The Chief Minister of Gibraltar, Peter Caruana noted that "Spain subscribed to that treaty, making no reservation whatsoever in relation to the Gibraltar question. International law makes Spain's denial of territorial waters in Gibraltar completely unsustainable in law."

The Spanish statement upon ratification of the Convention was:

2. In ratifying the Convention, Spain wishes to make it known that this act cannot be construed as recognition of any rights or status regarding the maritime space of Gibraltar that are not included in article 10 of the Treaty of Utrecht of 13 July 1713 concluded between the Crowns of Spain and Great Britain. Furthermore, Spain does not consider that Resolution III of the Third United Nations Conference on the Law of the Sea is applicable to the colony of Gibraltar, which is subject to a process of decolonization in which only relevant resolutions adopted by the United Nations General Assembly are applicable.

The British statement upon ratification of the Convention was:

With regard to point 2 of the declaration made upon ratification of the Convention by the Government of Spain, the Government of the United Kingdom has no doubt about the sovereignty of the United Kingdom over Gibraltar, including its territorial waters. The Government of the United Kingdom, as the administering authority of Gibraltar, has extended the United Kingdom's accession to the Convention and ratification of the Agreement to Gibraltar. The Government of the United Kingdom, therefore, rejects as unfounded point 2 of the Spanish declaration.

Article 310 of the 1982 Convention specifies that "such statements and declarations cannot exclude or modify the legal effect of the provisions of the Convention" in their application.

The dispute over territorial waters, which was rekindled over the fishing dispute seems likely to become more important with the discovery of a British treasure ship, HMS Sussex, and the Black Swan Project controversy finally ruled in favor of the Spanish Kingdom by the US Justice. Questions about the waters have previously been asked in the House of Commons, and answered as follows:

Under international law, States are entitled, but not required, to extend their territorial sea up to a maximum breadth of 12 nautical miles. Where the coasts of two States are opposite or adjacent, the general rule is that neither is entitled, unless they agree otherwise, to extend its territorial sea beyond the median line. The UK Government considers that a limit of three nautical miles is sufficient in the case of Gibraltar.

The Government of Gibraltar for its part holds that there is no economic or social need for more than three nautical miles of territorial water.

At the end of 2008, the European Commission included most of the territorial waters that surround Gibraltar under a marine conservation area known as the "Estrecho Oriental" that will be maintained by Spain. Spain's actions were seen by most in Gibraltar as the EU being duped by Spain into recognizing Spanish sovereignty over Gibraltar's waters. The UK initiated legal proceedings with the support of Gibraltar, which were initially rejected by the General Court on procedural grounds. A 2011 appeal was dismissed, again on procedural grounds. Reports in 2012 indicated that the European Court of Justice had again ruled against that appeal. However, the court's officials stressed "the ruling is merely on the technical issue of ability to take the case forward, it does not decide the merits of the case".

There have been disputes concerning Spanish patrol boats inside these claimed territorial waters. In May 2009 there were a number of Spanish incursions into British-claimed waters around Gibraltar, including by a Spanish Navy fisheries protection vessel, leading to intervention by police and a diplomatic protest by the UK. Further incursions were made in 2012.