The official Spanish position that Gibraltar does not have territorial waters is legally flawed

Joe Garcia

With Gibraltar issues surfacing in the context of Brexit negotiaions, it is relevant to note the advice in Spain’s possession that its policy claiming that Gibraltar has no territorial waters lacks legal foundation. 

This is the opinion of Dr Jose Antonio de Yturriaga, ex head of the Spanish foreign ministry’s legal department on international affairs. It is also held by others, as confidential files in the ministry show.In fact, at one point the Spanish foreign ministry urged the association of Spanish diplomats not to distribute certain reports by Dr Yturriaga, including those on Gibraltar.

The official Spanish Government position is that Gibraltar does not have territorial waters because the Treaty of Utrecht of 1713 only granted to the British Crown the town and port but there was no mention of the waters surrounding the Rock.

But this restrictive interpretation of the treaty does not appear to have a serious juridical base, says Sr Yturriaga, who draws attention to what was established by the UN convention of 1958 on territorial waters, such as that the sovereignty of a state extends beyond its territory and its interior waters, to its territorial sea.

The official Spanish thesis would mean that Gibraltar would equally not have airspace, which the ex Spanish legal adviser calls ‘absurd.’