Maritime zones around Gibraltar

Abstract

SPANISH YEARBOOK OF INTERNATIONAL LAW 2017 Spain and the law of the sea: 20 years under the Law of the Sea Convention 21 SYbIL (2017) 311-326 DOI: 10.17103/sybil.21.21

One of the specific legal and political facets of the dispute between Spain and Britain over Gibraltar is that of the maritime zones around it. The dispute extends to the waters around the Rock, its maritime zones and the jurisdiction over them, as Spain rejects the existence of British jurisdictional waters around the Rock, whilst the United Kingdom has always claimed them and exercised de facto jurisdiction over them.

In summary, with the exception of the waters of the port, Spain denies the existence of waters appertaining to Gibraltar. However, in practice, it allows the exercise of British jurisdiction within an extension unilaterally established by the UK, without distinguishing between the waters of the Rock and those of the isthmus. Meanwhile, the UK asserts a presumed sovereignty over the waters around the Rock; however, its initial position that the waters surrounding the isthmus are British is legally weak.

Two main factors explain the glaring lack of coordination with regard to the legal regime governing the waters around the Rock. The first is structural: it is inextricably linked to the core issues of the sovereignty dispute, as the waters are legally and judicially inseparable from the other disputes over the cession of the town, port, rock and isthmus, as well as from the UN doctrine on decolonization. The other factor is temporary: the lack of institutional channels or other channels of dialogue to encourage the parties to address practical issues of coexistence and jurisdiction in the waters since the elimination of the Forum of Dialogue on Gibraltar following the arrival in office of the Rajoy administration in 2011. This explains the utter impossibility of reaching understandings regarding the waters and even the unlikelihood of reaching a simple and provisional modus vivendi on the regime to govern navigation in them .

The Spanish ‘dry coast’ position is not as legally sound with regard to the waters as to other aspects of the dispute, and it moreover weakens Spain’s claim as a whole. This theory, advocated by Spain, is in some ways inconsistent with Spanish practice and, furthermore, seems to be fairly young, having been established in the 1960s during the dictatorship and subsequently continued in the Spanish democracy .

Ensuring greater coherence between Spanish theory and practice in relation to Spain’s position on the waters of the bay would strengthen the consistency and credibility of its claim to the waters in the Gibraltar dispute, which seems to have arisen in the 1960s in response to the ‘dry coast’ theory applied by the UK to Spain at that time __________________________________________