Gibraltar Dispute: Sovereignty and Jurisdiction - Essay Sample

Introduction

For decades Spain has had an unfounded claim on the waters off of the Rock of Gibraltar and the Rock itself. The Rock of Gibraltar being one of Britain's overseas territories is entitled to dominion over a sea belt adjacent to its coast.1 Despite this, Spain still claims Gibraltar as its own and has on occasion conducted futile sieges on Gibraltar in order to gain control over it.2 Therefore, the issues of sovereignty and jurisdiction are a bone of contention with regards to Gibraltar as the two are interlinked. This paper aims to bring to light the fact that Gibraltar is indeed under British sovereignty and that by virtue of this Gibraltar is undoubtedly entitled to territorial waters. This position is asserted by three main international law instruments:

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Treaty of Utrecht

The 1958 Convention on Territorial Seas and Contiguous Zones

United Nations Convention on the Law of the Sea

For decades the Rock of Gibraltar was the subject of a game of thrones with the key players being the Great Britain and Spain. This war finally ended with the Treaty of Utrecht in which Spain ceded control of Gibraltar to the United Kingdom in 1713.3 With this treaty in place, Gibraltar became one of the crown's colonies. With this treaty, Gibraltar was also mandated to prevent any smuggling of items into Spain as before.4 The Treaty of Utrecht also provided that in the event the United Kingdom wanted do away with its responsibility to Gibraltar, she would offer Spain the rock first.5

However, the United Nations created a Special Commission whose sole purpose was to implement the granting of independence to colonised countries in accordance with Resolution 1514 which was passed in 1960.6 This led to the United Kingdom placing democratic institutions in Gibraltar and offered the people of Gibraltar, British citizenship.7 This did not sit well with Spain as they claimed that it was in breach of the Treaty of Utrecht. The United Nations called on Britain and Spain to negotiate on the sovereignty of Gibraltar and asked the parties to comply with Resolution 2231 which called for both Great Britain and Spain to take into account the interests of the people of Gibraltar. Both countries committed to resolve issues regarding Gibraltar in the Brussels Document.

In response to this Britain held a referendum in Gibraltar where the people overwhelmingly voted to retain their links with Britain rather than share sovereignty with Spain. The United Kingdom also promulgated a Constitution for the people of Gibraltar in which one of the provisions provided that the United Kingdom would not pass sovereignty of Gibraltar to another state without the consent of the people of Gibraltar.8 Such acts by the United Kingdom and Laws has secured Gibraltar's sense of sovereignty as a British Overseas Territory.

Therefore, with its status as a British overseas territory, Gibraltar is entitled to territorial waters in the Bay and straits area around Gibraltar. Spain maintained that the promulgation of Gibraltar's constitution coupled with the referendum held by Britain in Gibraltar were violations of the Treaty of Utrecht as Gibraltar could only obtain sovereignty and Statehood with Spain's consent. However, Spain has never recognised the territorial waters claimed by Britain. According to the Spanish interpretation of the Treaty of Utrecht, the British are only entitled to a small portion of territorial waters in the Gibraltar area.9

Furthermore, without prejudice to the above, Spain's claims that the Treaty of Utrecht does not provide for British waters, the treaty in itself does not also provide for Spanish waters therefore such claims by Spain that those waters are Spanish are unsubstantiated. From the above, it can be inferred that Spain's interpretation of the Treaty of Utrecht is selective or based on the context that would favour them most since they validate the terms that favour them but the misinterpret the provisions that do not favour them. For instance, they validate the treaty by agreeing with the provisions of the treaty that grant Spain the right to first refusal, while they refuse to acknowledge the territorial waters granted to Britain when they ceded Gibraltar to Britain.10

The 1958 Convention on Territorial Seas and Contiguous Zones in its provisions clearly states under article one that the Sovereignty of a State extends beyond its land territory to a belt of sea adjacent to its coast.11 Although this convention was superseded by the United Nations Convention on the Law of the Sea, during the time it was in force Britain declared that British waters would extend 3 nautical miles around Gibraltar. During this time Spain raised no objection to this declaration.12

The United Kingdom and Spain have both ratified the United Nations Convention on the Law of the Sea. This treaty governs territorial claims of the oceans by the community of states.13 This treaty has as one of its provisions under article 3 "that every state has a 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 the convention"14 However, Spain did not agree with this provision and placed a reservation declaring that they did not recognise any territorial waters claimed to be owned by Gibraltar.15

Despite this, article 310 of the treaty provides that 'a state is not precluded from making declarations and statements when ratifying the treaty provided that these do not purport to exclude or modify the legal provisions of the treaty'.16 This, in essence means that despite making a reservation or declaration, a party to the treaty is not exempted from complying with the provisions of the treaty. This position is maintained by the International Court of Justice in its judgement on delimitation of maritime between Romania and Ukraine where the court held that a declaration made by Romania on the treaty would not affect its interpretation of the law in accordance with article 310 of the treaty17.

Consequently, despite Spain's Declaration regarding article 3 of the treaty, she is not excluded from complying with the provisions of the treaty as clearly stated under article 10 of the treaty. Therefore, in the instant case, Gibraltar was well within its rights in dropping the concrete blocks to create an artificial reef to create an artificial reef to encourage Fauna and flora to flourish. This is because the bay falls into the required zone of territorial waters provided for under the United Nations Convention on the Law of the Sea. Spain's claim that Gibraltar was required to obtain authorisation from them is clearly unwarranted and unfounded.

Notwithstanding the impasse on sovereignty, Spain and Gibraltar have in the past peacefully coexisted with regards to fishing rights particularly the period between 1991-1997. Spanish fishermen have formerly conducted their fishing activities in Gibraltar, although in contravention with local law, the people of Gibraltar did not feel threatened by the fishermen. An agreement was later entered by the two countries in 1999 regarding to fishing rights where it was agreed that Gibraltar would enforce its law promptly if any of the following terms were breached:

• if the fishermen come closer than 225 meters to the shore or harbour
• if the number of fishing boats on the Western Side (excluding luceros which do not fish) exceeds four at any time.
• If the entrances to the harbour are obstructed or shipping movements are obstructed or interfered with.18

This terms were put in place to ensure that Spain would not use her fishermen as a Trojan horse to undermine Gibraltar's sovereignty.19 This agreement was complied with for some time after which Spanish incursions which were ultra vires with the agreement became frequent. This led to collapse of the agreement and a deadlock with regards to fishing rights between Spain and Gibraltar. With the collapse of the gentleman's agreement regarding fishing both countries resorted to activities that benefited the individual countries.

The artificial coral reef being created by British Gibraltar was not in any way or measure a breach of any laws that bind either Spain or British Gibraltar. Furthermore, the reef has been in existence for almost thirty years and there had never been a complaint since the beginning of its construction. Additionally, the construction of the reef will also benefit the Spanish fishing industry as it helps in encouraging breeding of fish.20 Consequently, there has been no breach of any environmental laws by Gibraltar in building the reef.

Conclusion

In summary, the claims by Spain regarding the concrete blocks are baseless. From the above we can deduce that they do not have a say in the building of the concrete blocks in Gibraltar's territorial sea because this would amount to interfering with the sovereignty of another nation. In that regard Spain's failure to acknowledge the Sovereignty of British Gibraltar does not in any way, shape or form take away from the fact that Gibraltar is a British overseas territory. This remains the position until all parties involved can engage in negotiations that will benefit the people of Gibraltar as envisioned by the United Nations in Resolution 2231. By virtue of this, the sovereignty of British Gibraltar extends to a limit not exceeding 12 nautical miles. British Gibraltar has only claimed 3 nautical miles which falls squarely into the provisions of the United Nations Convention on the Law of the Sea. Therefore, British Gibraltar cannot be faulted for trying to conserve marine environment in its territorial waters.

Bibliography

The 1958 Convention on Territorial Seas and Contiguous Zones (1958).

Johnson, B., n.d. The History Of Gibraltar. [online] Available at: <http://www.historic-uk.com> [Accessed 23 April 2020].

O'Reilly, G. (2000). Gibraltar: Sovereignty Disputes and Territorial Waters, 71. Retrieved 24 April 2020, from https://www.researchgate.net.

Vilalta, N. (2020). British we are, British we stay: An analysis into the legal ramifications of the treaty of Utrecht of 1717 on Gibraltar's sovereignty; the legal developments since, new legal considerations and contextual developments of the present day. University of Reading.

Lincoln, S. (1994). The Legal Status of Gibraltar: Whose Rock is it Anyway?. Fordham International Law Journal, 18(1). Retrieved 25 April 2020, from https://.ir.lawnet.fordham.edu.

Vilalta, N. (2020). British we are, British we stay: An anaysis into the legal ramifications of the treaty of Utrecht of 1717 on Gibraltar's sovereignty; the legal developments since, new legal considerations and contextual developments of the present day. University of Reading.

O'Reilly, G. (2000). Gibraltar: Sovereignty Disputes and Territorial Waters, 72. Retrieved 24 April 2020, from https://www.researchgate.net.

Gibraltar Constitution Order 1969 (1969). The Delimitation of Spanish Marine Waters in the Straits of Gibraltar. (2012). [Ebook] (p. 7). Retrieved 25 April 2020, from https://www.ieee,es.

Vilalta, N. (2020). British we are, British we stay: An anaysis into the legal ramifications of the treaty of Utrecht of 1717 on Gibraltar's sovereignty; the legal developments since, new legal considerations and contextual developments of the present day. University of Reading.

The 1958 Convention on Territorial Seas and Contiguous Zones (1958).

Potts, S. (2009). Gibraltar: Territorial Waters. academia. Retrieved 25 April 2020, from https://www.academia.edu.

Nations, U. The United Nations Convention on the law of the Sea: A historical Perspective. Retrieved 25 April 2020, from Https://www.un.org.

United Nations. United Nations Convention on the Law of the Sea (1984).

Trinidad, A. The Disputed Waters around Gibraltar: Time for a Judicial Settlement. Newstatesman. Retrieved 25 April 2020, from https://www.newstatesman.com.

United Nations. United Nations Co...