Gibraltar: Earth, Air, Water and Spanish Fire

Whilst there is a great deal of debate over the status of Gibraltar the essential facts of the case are remarkably clear and this post is an attempt to explain them for those who would challenge the sovereignty of the Rock and her people.

Utrecht 1713

The Treaty of Utrecht is a series of individual peace agreements signed between March and April of 1713. Most of the major European powers of the time signed the treaty. The treaties ended the War of the Spanish Succession which was being fought to decide between the Austrian and French claimants to the Spanish thrones and overseas empire. Various claims to territory all across Europe and the globe were resolved. Most importantly for Gibraltar however was that sovereignty was signed over from Spain to Britain, following its capture by a combined Anglo-Dutch-Catalan fleet in 1704.

Article X of The Treaty of Utrecht 1713.

 

“The Catholic King does hereby, for himself, his heirs and successors, yield to the Crown of Great Britain the full and entire propriety of the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging; and he gives up the said propriety to be held and enjoyed absolutely with all manner of right for ever, without any exception or impediment whatsoever.”

(The complete Article X) http://www.gbc.gi/upload/pdf/Treaty%20of%20Utrecht.pdf

The article unequivocally assures British sovereignty of the Rock and surrounding 6.5 miles long peninsula. It means the territory of Gibraltar and its 30,000 inhabitants are British and will lawfully remain British until such a time that Parliament decides otherwise.

Spain almost immediately tried to reclaim Gibraltar by besieging the settlement in 1727 and again between 1779-83. As Spain’s fortunes declined and Britain became the worlds pre-eminent power the claim was dropped and it was only in the 1950s that Spain resurrected the issue. Under General Franco the border between Gibraltar and Spain was closed for almost 25 years.

United Nations Convention on the Law of The Sea

As some will have noticed the article does not afford any territorial waters to Gibraltar, Britain does not contest that the treaty does because it simply doesn’t. This can be explained by the fact that the very concept of internationally recognised territorial waters as we know it today did not exist in the 18th century. It would have been as daft to have apportioned territorial waters as it would have been to accredit airspace, it simply wasn’t necessary. There were instead mutually acknowledged and respected national boundaries extending to varying distances depending on individual nation states. The British Empire and the USA for example claimed 3 nautical miles, known as the canon shot rule i.e. the distance a cannon could fire and was therefore defendable, whilst Spain claimed 6 NM and Norway 4 NM.

The United Nations Convention on the Law of the Sea 1982 created the opportunity to firmly establish boundaries. The convention introduced internationally accepted regulations regarding territorial waters, air space and subsoil ownership. The convention has been ratified by 165 states as well as being signed by 15 more, Spain signed and ratified the convention. The convention entered into force on the 16th November 1994.

Part II, Section 1

Article 2

1. ‘The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic state, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

2. This sovereignty extends to the airspace over the territorial sea as well as to its bed and subsoil.

3. The sovereignty over the territorial sea is exercised subject to this convention and to other rules of international law.’

Article 3 – States the distance a country can rightfully claim.

‘Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.’

Article 15 – Deals with what do to in the case of conflict between States with opposite and/or adjacent coastline.

‘Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of thetwo States in a way which is at variance therewith.’

As Gibraltar is a British overseas territory it is entitled to territorial waters extending 12 nautical miles from the baseline. As it has coastline both adjacent to and opposing that of Spain it is entitled to extend its territorial waters westwards to the midpoint between Gibraltar and Spain. Britain has instead opted to maintain a 3NM radius as it had done before the Convention.

Upon ratifying the convention Spain made an entirely separate declaration that the treaty that it had just signed did not apply to Gibraltar because no sea territory was greed in the treaty of Utrecht and because Gibraltar is considered a colony by the United Nations. Of course the treaty of Utrecht is entirely irrelevant to the convention and so cannot legally be used to deny Gibraltar territorial waters. Secondly the status of Gibraltar as a colony does not mean the convention denies it territorial waters.

Article 310 of the convention also clearly states that

‘Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.’

Article 309 – states that

‘No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.’

In short all that means is that a signatory can make any comment and declaration it sees fit to but it has no legal basis once the convention has been ratified. Individual states cannot change the treaty meaning that Spanish declarations on Gibraltar have no bearing in law.

So, to conclude, the next time someone tells you Gibraltar is rightly Spanish or doesn’t have any territorial waters you can point out that Article X of the Treaty of Utrecht and Part II, Section 1, Articles 2, 3 and 15 of the Convention on the Law of the Sea 1982, as ratified by Spain, unequivocally state otherwise.

if that isnt enough for them you might also want to point out the two referendums in which the Gibraltarians rejected shared sovereignty and clearly expressed their wish to remain British.


1967:
British Sovereignty: 12, 138 (99.64%)
Spanish Sovereignty: 44 (0.36%)
Invalid: 55
Turnout: 95.67%

 

2002: Shared sovereignty
Yes: 187 (1.03%)
No: 17,900 (98.48%)
Invalid 89 (0.49%)
Turnout: 87.9%

Gibraltar

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