Gibraltar: Legal Advice on Innocent Passage

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While tensions over the South China Sea often prompt headlines, attracting a great deal of attention by analysts, the dispute over Gibraltar has a much smaller presence in the media and specialized publications. However, given its location at a vital chokepoint, the conflict over the Rock cannot be ignored by naval and maritime observers. Furthermore, for the student of comparative conflict at sea it is interesting to look at some of its features, including disputes over the law of the sea and resort to non-lethal asymmetric warfare, which we also find elsewhere. A third reason is Gibraltar’s role in the air reinforcement strategy for the defence of the Falklands, an issue that China watchers are increasingly paying attention to, given Beijing’s growing interest in the South Atlantic, including Namibia.

Just like in the South China Sea, one of the aspects of the dispute over Gibraltar concerns the concept of “Innocent Passage”. In the case of the Rock, intruding warships have often claimed to be engaged in this regime, recognized by international law, both customary and UNCLOS (United Nations Convention on the Law of the Sea). However, Gibraltar’s authorities have rejected such claims, arguing that they were a mere excuse to justify incursions into British Territorial Waters. In order to reinforce their case, Gibraltar’s government announced in November 2014 that it had commissioned an expert legal opinion on the definition of innocent passage under UNCLOS. The latest string of incidents prompted the Gibraltar Broadcasting Corporation (GBC) to ask the Rock’s authorities whether the opinion had been received, and they replied confirming it had. According to the GBC, the opinion explains that “A vessel can only be considered to be on innocent passage through British Gibraltar Territorial Waters if it’s moving continuously and expeditiously, and is not engaged in any activities that are prejudicial to Gibraltar or the UK”, adding that “when it appears objectively from the foreign vessel’s behaviour that its purpose in passing through BGTW is to assert its country’s sovereignty claim over the waters, its passage would not be deemed to be innocent under international law.”1

HMS Scimitar escorting Spanish Govt vessel Emma Bardan out of BGTWs
HMS Scimitar escorting Spanish Govt vessel Emma Bardan out of BGTWs

On reading the GBC report, Luke Coffey, Margaret Thatcher Fellow, Margaret Thatcher Center for Freedom, The Heritage Foundation, tweeted “Spain in violation of UNCLOS, Article19 (Meaning of innocent passage), paragraph 2C, 2D, 2J, probably 2K and 2L!!”.2 These passages of UNCLOS read:

Meaning of innocent passage

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage”.

It could also be argued that incursions into Gibraltar’s territorial waters amount to a violation of paragraph (a) of the mentioned UNCLOS article, which reads “ any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations”, given that they take place in parallel with a denial of the British sovereignty over the Rock and her population’s right to self-determination.

However, innocent passage is a key concept in the law of the sea, and cannot be easily dismissed. Any attempt to deny that a warship moving through territorial waters enjoys it must be approached with care. This was made clear by James Kraska, a professor at the US Naval War College, who also commented on the Gibraltar report. Kraska stressed on Twitter that a “[t]hreat may not be implied based on mere presence, but must be overt, such as statement or action, such as fire control radar,” adding “See Jackson Hole Agreement; purpose of trip irrelevant; must have overt violation of art. 19 to be not innocent.”3 This refers to the 1989 USA-USSR Joint Statement With Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, known as “Jackson Hole Agreement”, whose text states that “All ships, including warships, regardless of cargo, armament or means of propulsion, enjoy the right of innocent passage through the territorial sea in accordance with international law, for which neither prior notification nor authorization is required”, in accordance with UNCLOS.

A difference between Cold War maritime confrontations and the dispute over Gibraltar is that in the former, it was the limits of innocent passage, which were disputed, ultimately leading to the 1989 Joint Statement. However, in the case of the Rock, vessels violating her territorial waters claim that those waters do not exist. Another difference to take into account is that while ramming featured in a number of incidents during the Cold War, the context was mainly a threat of conventional war at sea. On the other hand, what we are now seeing in regions like the South China Sea is mainly non-lethal warfare, featuring a complex mix of coastguards and other state agencies, fishing boats, maritime militias, and oil rigs. In Asia, this phenomenon is called the “gray zone” between peace and war. This does not mean that the conventional force is irrelevant, since what we are facing in the South China Sea is a dual war akin to the Second Indochina War on land. Concerning Gibraltar, the fact that intruding ships purport to conduct “sovereignty” patrols means that their passage is not innocent within the meaning of Article 19 of UNCLOS. The very purpose of those incursions is to undermine the “peace, good order, and security” of the territorial waters of the United Kingdom.

Could the legal opinion provided to Gibraltar’s Government have any influence on the legal dispute over the South China Sea? As is often the case, lawyers on both sides may find something to support their respective views. On the one hand, maritime democracies are bound to benefit from any obstacle to further incursions into British Territorial Waters, which not only run directly against the concept of rule of law at sea and peaceful resolution of disputes, but make it difficult for the European Union to play a role in the South China Sea. On the other hand, China may expand the notion that a warship moving through territorial waters is not engaged in innocent passage when making a territorial claim, arguing that neither is she when contesting a territorial claim. The challenge, however, remains how to distinguish lawful innocent passage, no matter how disliked by the coastal state, from genuine threats to “peace, good order, or security” of the coastal state. Kraska underlines that for this analysis, we must fall back on the Charter of the United Nations, which forbids the “threat or use of force.” A factor not to be forgotten is Beijing’s permanent seat at the UNSC, meaning that whatever interpretation of the UN charter may prevail among maritime democracies, it is unlikely to make it into a Security Council resolution if it is seen by China as detrimental to her national security. Recent months have seen many proposals concerning a reinforced presence by maritime democracies in waters claimed by Beijing in the South China Sea, and the airspace over them, as well as a number of incidents involving warships and planes in those same waters. The former include a study by Scott Cheney-Peters on joint air patrols, whose main purpose would be “to counter excessive claims and rights not in accordance with international law.”

It would be interesting to see the full text of the legal opinion commissioned by Gibraltar’s Government. In any case, the information released about it should serve as a reminder that in a global, inter-connected, world, each maritime dispute may certainly be unique, but it makes sense to study them from a comparative perspective, among other reasons because in both diplomacy (including public diplomacy) and international legal and arbitration proceedings, anything considered as a precedent may be used to defend one’s position.

Alex Calvo, a guest professor at Nagoya University (Japan), focuses on security and defence policy, international law, and military history, in the Indian-Pacific Ocean Region. He tweets at Alex__Calvo and his work, which includes “China’s Air Defense Identification Zone: Concept, Issues at Stake and Regional Impact”, Naval War College Press Working Papers, No 1, US Naval War College, 23 December 2013, available here, can be found at https://nagoya-u.academia.edu/AlexCalvo

1Source kindly pointed out by Michael J. Sanchez, founder of OP-WEST. An interview with Sanchez, where he explains the origins and work of OP-WEST, is available at A. Calvo, “OP-WEST: Open Source Intel in Contested Maritime Spaces”, Center for International Maritime Security (CIMSEC), 1 April 2015, http://cimsec.org/op-west-open-source-intel-contested-maritime-spaces/15718

2 Tweet by @LukeDCoffey dated 18 August 2015.

3 Tweets by @JamesKraska dated 19 August 2015.

21 thoughts on “Gibraltar: Legal Advice on Innocent Passage”

  1. This paper is based in a discutible premise: Waters around Gibraltar are under British sovereignty. This is a unillateral position of United Kingdom. Exemple: Court of Justice of the European Union, over the case of SCI ‘Aguas del Estrecho Oriental’ was clear: Britain can´t present as legal basis a disputed sovereignty that should be resolved by the two EU member states, not by the court. (2011)

    1. Not a unilateral position. The IMO charts show them as British waters too which means the United Nations considers them British.

      Spain knew that signing the UNCLOS treaty would confirm that these were British waters, which is why they made the declaration to try and exempt them. Britain pointed out in another declaration that there can be no exceptions. Spain clings to Utrecht, but that’s an unwise position, given that Utrecht also handed Britain the island of Minorca. So unless Spain is about to hand back Minorca, they had better get used to these being British Gibraltar waters.

      1. UNCLOS article 15th is clear:

        Delimitation of the territorial sea between States with opposite or adjacent coasts.

        Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.
        [BUT]
        The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

        Spain position was communicated to British Government

        Note Verbale No 151/11 of 12 July 2007
        “In accordance with Art 3 of the United Nations Convention on the Law of the Sea, Spain, in no case, can accept any limitation to its right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles. In case of adjacent or opposite coasts, as there are in the Straits of Gibraltar, the Convention provides for an exception to the general rule of the median line when it is necessary, for reasons of historic title, to delimit the territorial sea in a different way (Art 15).
        In this respect it should be recalled that Spain does not recognize the British sovereignity or jurisdiction over other spaces than those that are included expressly in article X of the Treaty of Utrecht. That is to say: `The town and castle of Gibraltar, together with the port, fortifications, and forts there-unto belonging’.
        Therefore, the Rock does not create territorial sea and the waters adjacent to the coast of Gibraltar are under the sovereignty and jurisdiction of Spain”.

        http://www.publications.parliament.uk/pa/cm200708/cmselect/cmfaff/147/147we116.htm

        1. Tiresome as ever with the same old story. The UK replied to Spain’s clause:

          “(d) Gibraltar

          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”.

          Gibraltar was exchanged for Florida and Menorca in 1780s so really there is not much more to said about Utrecht. More to the point since Spain is so unhappy TAKE THE MATTER TO THE INTERNATIONAL TRIBUNALS and stop torturing yourselves.

        2. By the way Epigramero. Spain has a very bad habit of communicating a lot of claptrap to the British government. The UK’s and Gibraltar’s positions are crystal clear and since Spain has an awful problem understanding those positions, as I said before it can all be thrashed out in the courts.

    2. Really Epigramero how can you say it is a unilateral positiion of the UK when Spain signed the UNCLOS!!!!!!! The SCI you refer to I have explained below when Spain made a false representation at the ECJ and anyway no EU directive and NOTHING OVERRIDES the UNCLOS. Nonsense point to make.

  2. There is not such a thing as Gibraltar British Territorial Waters. The Agreement signed between the British Crow and Spanish Crown explicity excludes concesion of jurisdiction of the Spahish water soorranding Gibraltar

    1. There was no such concept as territorial waters when Utrecht was signed. Even Spanish Professors have pointed this out, so your point is invalid.

      As Professor Verdú says

      “Therefore, the obvious conclusion is that Spain has maintained a manifestly erroneous and manifestly weak legal position; and perhaps most worrisome is that the current terms persist in maintaining this legal position is preventing reach agreements that are absolutely necessary and essential from my point of view, taking into account the characteristics of the Bay of Algeciras.”

      http://www.diariosur.es/v/20110502/campo-gibraltar//interrogantes-utrecht-20110502.html

  3. The Agreement signed between the Spanish Crown and the British Crown as per the Utrech Treaty is the sole basis of the British sovereignity of the British Colony of Gibraltar. part from this fact, UN has urged GB to declonize Gibraltar. So, except to the right of acces to the G port facilities, any warship that goes beyond this, not of spanish flag is trespassing Spanish sovereignity…and this is not a clain is a rigth with legal basis, which is not the case of China sea. Sorry to see a writir with spanish blood in his veins to be so biased.

    1. You seem to be unaware that subsequent treaties modify the terms of previous ones. In the Treaty of Utrecht, Minorca was also given to Great Britain. Yet in the Treaty of Amiens, Spain recovered Minorca. When Spain signed UNCLOS, they confirmed that the waters around Gibraltar were British. There can be no exceptions to the treaty.

      If Spain clings to the Utrecht treaty, ignoring subsequent ones, they are jeopardising their claim to Minorca which would have to be returned to British sovereignty.

      You cannot have it both ways. If you accept Amiens, then you must also accept UNCLOS and British Gibraltar Territorial Waters.

  4. El autor de este articulo, el Sr. Alex Calvo, muestra un profundo desconocimiento del tema sobre el que está hablando. Todo el articulo esta centrado en hablar sobre las aguas territoriales de Gibraltar, pero en su desconocimiento de la historia ignora que el Tratado de Utrech no concede ni un solo mm. de la territorialidad de dichas aguas. En consecuencia, toda su argumentación relacionada con el significado del “innocent passage” es marginal dado que dichas aguas son de territorialidad española.

  5. It could be interesting to know Spanish position on this matter. On the other hand, the whole argument forgot the legal instrument in which is based the sovereingty upon Gibraltar , the Utrecht Treaty. This instrument did not give the control or the sovereingty on the waters around the Rock. Then all claim by British government, not the Gibraltar authorities, which do not hold the sovereingty of the territory, should take into account the treaty and the position of the Spanish government.

    1. The Spanish government should be brave and take the matter to the international tribunals but they refuse to do so because they do not have a leg to stand on because THERE IS NO LEGITIMATE CLAIM ON GIBRALTAR.

    2. ” This instrument did not give the control or the sovereingty on the waters around the Rock”

      The sovereignty over the territorial waters naturally stems from the possession of the territory. If you own the land, you have right for territorial waters, this does not have to be specified in any treaty unless the treaty wants to stipulate limitation of said rights.

      Now, question British sovereignty over Gibraltar, if you will. That is the key.

  6. To keep quoting the infamous Treaty of Utrecht is both cynical and totally misguided But this can be expected from a very right winged approach by the Spanish government which at best is hypocritical since they know full well they would NOT have a leg to stand on in any International court of law. At the time of UNCLOS declaration there was no such thing as territorial waters; not forgetting that the British Empire ruled the seas. Menorca was exchanged for Gibraltar in that same treaty so in that context the waters around Menorca would therefore continue to be British as would those of Florida. Let us not forget either that the waters around Ceuta (Spanish enclave in Africa next to Morocco which the latter claims) would be Portuguese since they belonged to Portugal and the land was ceded not the waters.! You can NOT have it both ways. Those waters are British and even General Franco demarcated them using buoys recognising their British jurisdiction, Sovereignty and control!

    1. “At the time of UNCLOS declaration there was no such thing as territorial waters”

      But of course there was. UK claimed 3 nautical miles, some other nations claimed 4 or 6.

  7. Gibraltar Territorial Waters are BRITISH under UNCLOS to which Spain is signatory. What is not being said by the Spanish contributors here is that Spain made a FALSE REPRESENTATION at the European Court of Justice as they did not disclose they were claiming OVERLAPPING British waters under UNCLOS and the EU incorrectly designated the Southern waters of Gibraltar to Spain. The European Commission has stated that Spain had been under a duty to disclose and inform the UK as well as the Commission of the overlapping listing proposal, WHICH SPAIN DID NOT, despite the fact that they are signatory to UNCLOS!!!!!! The appeals by the UK and Gibraltar were rejected by a panel that included a SPANISH JUDGE and SPANISH MAGISTRATE (conflict of interest in the judgement would you not say???) over a “technicality” – a false representation perhaps???? Infraction procedures against Spain might be on the offing.

    The EU has also shown itself as to be rather ignorant in not realizing that all territories under UNCLOS have a minimum of 3 miles of waters. How they made that designation is the most bizarre and absurd thing to have done!!!!!

    Also the EU listing does not alter the fact that Gibraltar waters are BRITISH.

  8. In reply to David Garcia – you really need to brush up on your history, modern history that is. Spain signed the UNCLOS in the 1980s with clauses that do not alter the fact of the acceptance of Spain that Gibraltar Territorial Waters are British. The Spanish government should be brave and take the matter to the international tribunals but they refuse to do so because they would make utter fools of themselves as they know they have NO LEGITIMATE CLAIM ON GIBRALTAR.

  9. Firstly, Gibraltar was ceded in perpetuity under the Treaty of Utrecht, a treaty that was compromised by Spain with the ensuing 3 sieges!!! Gibraltar did not become a colony until the mid 1800s and it is absurd to cite the Treaty of Utrecht and refer to Gibraltar as a colony!!!! Such was the obsession of Spain with Gibraltar that the military sieges stopped when Spain was offered Florida and Menorca in exchange for Gibraltar and to everyone’s surprise they accepted in the 1780s. Therefore that was the nail in the coffin of any possibility of Gibraltar ever being Spanish unless they can find the right formula to return Florida and Menorca to the British!!!! Any claim on Gibraltar is purely extreme wild obsession.

    1. Let refresh. Menorca was retaken militarily by Spain to Great Britain after 100 years of british occupation. Painful but it is true. The article it is about the waters surrounding Gibraltar, not about Gibraltar in itself. It is true that UN has invited GB to decolonize Gibraltar (Second hlaf of the XXth century). Gibraltar was taken by british forces on behalf of a spanish candidate to the crown. The war of succession. The first flag that british forces planted in the rock was the spanish flag. But..when the the candidate lost the war imcidentally british forces were there. Deal or trick? First the trick, change the spahish flag by the british one. Then the Deal. The Utrech treaty.

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