The legal arguments supporting Spain’s premise that Gibraltar has no territorial waters are “very weak”, Professor Jamie Trinidad, KC, said during a lecture at the University of Gibraltar on Wednesday, adding Spanish authorities know this.
Prof Trinidad, a Fellow and Director of Studies in Law at Wolfson College, University of Cambridge, and a Fellow of the Lauterpacht Centre for International Law, at the same university’s Faculty of Law, was speaking during his inaugural lecture as a newly-appointed Beacon Professor at the Gibraltar university.
Beacon Professors are unique to the University of Gibraltar and the honorary title speaks to the role they undertake in inspiring students and conveying knowledge.
Pro Trinidad, who was speaking in a personal capacity but whose professional work includes advising the Gibraltar Government, has focused his academic research on international territorial disputes, self-determination and human rights.
He is widely published and lectures in the University of Cambridge.
Prof Trinidad said the Spanish claim that Gibraltar has no territorial waters was “very bizarre” and that any serious international lawyer would question why it was even being advanced.
In condensing over 300 years of history into a 30-minute non-technical lecture he said the Spanish stance may rest at least in part on “sociological and psychological” foundations stretching back to the 1960s.
Until then, the UK applied the same “dry coast doctrine” to a stretch of Spanish coastline in the Bay of Gibraltar.
“I’m not making a case for Spain in any sense, far from it,” he said.
“But I want people to understand where it comes from.”
During the lecture Prof Trinidad traced the history of Gibraltar’s waters from the 18th century to modern times, reflecting on how jurisdiction over territorial sea had in the past been upheld by force of arms.
The area of sea claimed was, in effect, the distance that a cannonball fired from Gibraltar could travel.
From the 18th century to the early half of the 20th century, the UK used the northern end of the Bay of Gibraltar as a busy anchorage that stretched from what is now the runway up to near San Roque.
In doing so, it claimed those waters as British and denied Spain use of that stretch of coastline, effectively classing it as a dry coast.
By the 1960s, that position changed and the UK adopted a different approach that acknowledged Spanish waters at the north end of the bay and set a median line as the maritime border, equidistant from Spain and Gibraltar.
But the underlying disagreements over the waters remained unresolved and Spain turned the tables, adopting a political position that insisted Gibraltar had no territorial waters because none had been ceded under the Treaty of Utrecht.
Prof Trinidad said the Spanish position was weak in law – there was no international legal concept of territorial sea at that time - and that Spanish officials were increasingly acknowledging this privately, and sometimes even publicly.
The Spanish former ambassador Jose Antonio Yturriaga Barberan, for example, wrote in 2010 that the Spanish position lacked a solid legal foundation and that several reports to the Ministry for Foreign Affairs in Madrid made this clear.
He was writing in a personal capacity but his voice carried weight because among his many senior diplomatic roles, Mr Yturriaga was once Spain’s representative to the UN on the Law of the Sea.
It may still take some years, but Prof Trinidad ventured the possibility that “it won’t be long before Spain resiles from its current position”.
Spain, he said, knows its legal case is “very weak” and causes it to “lose credibility”.
“I think that we may not be too far away from the day when Spain eventually, as a formal position, says, okay, we accept that under the UN Convention on the Law of the Sea, like every other coastal territory in the world, Gibraltar has waters, but what we dispute is the extent of the waters,” he told the Chronicle ahead of the lecture.
“Whereas now it’s this maximalist claim which, when they mention it in multilateral forums, they just get laughed out of the room, effectively.”
At first glance a change in the Spanish position, should it ever happen, would appear positive for Gibraltar. But there is one caveat to the argument, and it was also flagged by Mr Yturriaga.
The Spanish case is arguably weak in respect of the waters around the Rock, but potentially less so when it comes to waters off the isthmus, which was not ceded under the Treaty of Utrecht.
If it acknowledged that Britain has rights to waters around the territory of the Rock ceded under the Treaty of Utrecht, Spain might in turn strengthen its hand in respect of the waters around the isthmus.
For now though, all of this is theoretical and Spain’s position has remained unchanged for decades.
The UN Convention of the Law of the Sea [UNCLOS] gives coastal states the right to claim sovereignty over adjacent areas of sea. Spain entered a derogation in respect of Gibraltar when it signed up to UNCLOS, but the convention itself states clearly that this does not undermine the UK’s legal rights to claim the waters as its own.
In the 1960s, the UK invited Spain to test its position before the International Court of Justice. Spain declined and there has been no subsequent effort by either side to put the matter to judicial arbitration.
Instead, Spain engages in what Prof Trinidad described as “tactical incursions”, some more serious than others, but each of which is routinely and systematically protested by the UK Government to deny Madrid a factual narrative to strengthen its hand.
“When an incursion happens, you need to protest it,” Prof Trinidad said.
“You can't be seen to just be acquiescing to a situation where there are incursions.”
“It’s important to shut it down because at a jurisdictional level, if you start just acquiescing to that kind of behaviour, eventually they're going to say, look, you've acquiesced for all this time, and that means we really do have jurisdiction.”
That does not mean, however, that even with differing views on jurisdiction there is no room for cooperation.
This was evidenced in practice during the OS35 maritime casualty when Spanish maritime rescue services worked alongside Gibraltarian authorities under their direction to limit the risk of pollution.
Similarly, despite the friction arising from regular unlawful incursions, law enforcement agencies on both sides of the border often work together in the common fight against drug trafficking.
“As long as things are done without prejudice to positions on sovereignty and you have a solid agreement on the operational side of things, it's perfectly possible for people to work on both sides of the border,” Prof Trinidad said.
The lecture was well-attended, with numerous dignitaries in the audience including Chief Minister Fabian Picardo, Chief Justice Anthony Dudley, the Mayor, Carmen Gomez, and several government ministers, among the Dr John Cortes, himself a Beacon Professor.
Prof Trinidad spoke of his pride at being appointed a Beacon Professor and assisting the fledgling university in its purpose, including potentially strengthening links with the University of Cambridge.
“It's an honour and a real privilege and opportunity to be able to contribute to the work of the university in any way I can,” he said.
“It's important, I think, for any community to have a higher education institution, not only because of the people who come into contact with the institution, but I think society at large benefits from having a place like this, that's educating future generations and doing research, often groundbreaking research, already in less than a decade that it's been in existence.”