Both the United Kingdom and Spain have ratified the
United Nations Convention on the Law of the Sea of 1982, which governs countries' oceanic territorial claims. Both countries made statements regarding Gibraltar in their declarations upon ratification of the Convention. The Spanish statement 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.
[38]
The British government responded to the Spanish statement in their own statement:
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.
[39]
However, Articles 309 and 310 of the Convention state that "No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention", and that if a signatory state makes a declaration upon ratification, that declaration must "not purport to exclude or to modify the legal effect of the provisions of this Convention in their application" to that state.
[40]
The dispute over territorial waters, which was rekindled in 2013 following a fishing dispute
[41] seems likely to become more important with the discovery of a British treasure ship,
HMS Sussex, and the
Black Swan Project controversy.
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. 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.
[42] The European Court of Justice had again ruled against that appeal in 2012.
[43]
There have been disputes concerning Spanish patrol boats inside these claimed territorial waters. In May 2009 there was 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.
[44][45]
Under the United Nations Convention on the Law of the Sea, vessels passing through the Strait of Gibraltar do so under the regime of transit passage, rather than the more limited innocent passage allowed in most territorial waters.[46][47]