Secret documents in Madrid show that the official Spanish position is flawed.
You do not have to be too long in the Spanish foreign ministry in Madrid before you are confronted with a painting of a former Spanish foreign minister Fernando Castiella, the chief architect of the anti-Gibraltar campaign, that started with a ban on altar wine and ended with the full closure of the frontier in 1969. It is a constant reminder of the 16-year siege, which no Spanish minister or diplomat can easily forget.
What they would like to forget are confidential documents hidden away in the archives in the Palacio de Santa Cruz, advising them that the Spanish claim to Gibraltar's British territorial waters is fundamentally flawed. One of the documents was by none other than the ministry's legal adviser, Jose Antonio de Yturriaga, a senior diplomat, who retired just a few years ago.
Why, then, does the Spanish government keep saying that Gibraltar's territorial waters are Spanish?
A better question is, why is it that Spain refuses to take their waters claim to an international court? Obviously, because as their senior legal adviser concluded, the Spanish claim is fundamentally wrong and unsustainable in law.
Thus, the Spanish interpretation of the treaty of Utrecht, in respect of territorial waters, is at least suspect. As their own legal adviser also pointed out, in the days of Utrecht, treaties did not make reference to territorial waters as such.
Yet, the underlying Spanish concept is that Gibraltar does not have any territorial sea because the treaty of Utrecht does not say so.
However, what determines our territorial waters is not Utrecht but the 1958 UN Convention on the Territorial Sea and the Contiguous Zone, which is essentially a codification of customary international law.
The Convention states: "The sovereignty of a State extends beyond its land territory and its internal waters to a belt of sea adjacent to its coast, described as the territorial sea."
It is pellucidly clear that the waters that surround Gibraltar are British territorial waters. How can it be possibly denied?
Even in the days of General Franco, when the modern siege of Gibraltar was escalating, Spanish warships, including the celebrated 'Smokey Joe', would keep their distance - and when Spain imposed an air prohibition area it essentially followed the median line concept that Britain has advocated as demarcating territorial waters in Gibraltar bay.
And if you want to go back in history, in order to look forward, in the 1800s both Canning and Palmerston defended the 'absolute' rights of Gibraltar as derived from Utrecht.
Said Canning in 1826: "In the absence of all mention by the treaty of utrecht of any boundary, real or imaginary, of the port of Gibraltar, which was ceded to Great Britain in that treaty, it becomes necessary, in the first place, to look for a natural boundary in the trending of the coast.
"What boundary is to be found in the curvature of the coast terminating in the Punta Mala, the whole of which space is within range of the guns of the garrison.
"Accordingly, that point of land has invariably been considered as the limit of the port to the northward..."
Lord Palmerston also refuted the Spanish arguments in detail in 1851.
The British line was this: "The cession of the fortress and port of Gibraltar to Great Britain formed part of the general European arrangement which followed the War of the Spanish Succession, and it would be unreasonable to suppose that Great Britain, after her successes in that struggle, and after having been for some years in possession both of the fortress and of the port of Gibraltar, would have accepted the surrender of the one without requiring at the same time the cession of the other; that the possession of the fortress necessarily gave her, by means of the guns of the fortress, the command of the port; and it would have been an anomaly and an absurdity if she had consented to relinquish the sovereignty of waters which she could sweep with her guns, and which, being a halting station for her shipping at the gates of the Mediterranean, was a possession which it was of importance for her to retain."
In fact, in those days, as many as 500 ships, including Spanish ones, anchored in the waters of Gibraltar and paid their port dues to the Gibraltar authorities.
So, why don't the Spanish accept once and for all that the waters that surround Gibraltar are not Spanish, and if they believe otherwise, why don't they take the matter to the appropriate international court - and save the long suffering peoples of this part of the world so much unnecessary hassle and conflict?
05-10-12 By Joe Garcia