Gibraltar, ¿costa española? Por una reformulación de la teoría de la ‘costa seca’ sobre el puerto y las aguas en torno al Peñón

Abstract

GIBRALTAR, SPANISH COAST? A REFORMULATION OF THE THEORY OF THE ‘DRY COAST’ ABOUT THE PORT AND THE WATERS AROUND THE ROCK One of the specific legal and political facets of the dispute between Spain and Great Britain over Gibraltar is the maritime areas around it. The dispute extends to the waters surrounding the Rock, its maritime zones and the jurisdiction over them, since, with the exception of the waters of the port, Spain rejects the existence of British jurisdictional waters around the Rock, while the UK has always claimed them and exercised de facto jurisdiction over them. Spain denies the existence of waters belonging to Gibraltar but, in practice, allows the exercise of British jurisdiction within an extension unilaterally established by the United Kingdom, without distinguishing between the waters of the Rock and those of the isthmus. The UK asserts an alleged sovereignty over the waters around the Rock, but its initial position that the waters surrounding the isthmus are British is legally weak. Two main factors explain the evident lack of coordination regarding the legal regime that governs the waters around the Rock. The first is structural: it is inextricably linked to the central issues of the sovereignty dispute, since the waters are legally inseparable from the other disputes over the transfer of the city, port, rock and isthmus, as well as from the UN doctrine of decolonization. The other factor is temporary: the lack of institutional channels or other channels of dialogue to encourage the parties to address practical issues of coexistence and jurisdiction in waters. This explains the impossibility of reaching an understanding about the waters and even to reach a simple and provisional modus vivendi on the regime that governs navigation in them. With Brexit, however, other future prospects have been opened for possible agreements and coordination in the waters, through the Protocol on Gibraltar of the United Kingdom’s Withdrawal Agreement from the EU and the Memoranda of cooperation. The position of the Spanish “dry coast” is not as legally solid with respect to the waters as with other aspects of the dispute, and furthermore weakens the claim of Spain as a whole. This theory is somewhat incompatible with Spanish practice and, furthermore, it seems to be quite young, since it was established in the 1960s during the dictatorship and subsequently continued in Spanish democracy. This article affirms that the problem of the waters around Gibraltar is that of the historical doubt about the extent of the waters of the port on the western front of the Rock and the Isthmus: determining the scope of the waters of the port and roadstead today of Gibraltar, once admitted in 1968 by the United Kingdom its non-application to the northernmost waters called “Puerto Canning”. Ensuring greater coherence between Spanish theory and practice in relation to Spain’s position in the waters of the bay would strengthen the consistency and credibility of its claim on the waters in the dispute in Gibraltar, which seems to have arisen in response to the theory of the ‘dry coast’ applied by the United Kingdom to Spain at that time. With this approach, Spain could consider reformulating the theory of the dry coast, with a restrictive interpretation of the Treaty of Utrecht that considers the entire mountain, in particular the east face of the Rock, not to be ceded. In this way, a different legal basis could be offered to the ‘dry coast’ theory, with greater coherence, since the Spanish title would not derive from the non-cession of waters in Utrecht, but from the fact that the eastern territory was not ceded –nor was the isthmus given up– so the eastern coast of the mountain and its waters are Spanish. This reformulation of the ‘dry coast’ would consist in practice of the affirmation of the Spanish coast in the isthmus and east of the Rock, with consequences similar to those of the traditional Spanish thesis: denying maritime spaces to British Gibraltar outside the spaces in the interior of the Bay. In this way, the reformulation that is proposed would give coherence to the traditional Spanish historical position, which interprets Art X as a transfer that “does not recognize other rights and situations related to the maritime zones of Gibraltar that are not included in the Treaty of Utrecht”. With this restrictive reading of the Treaty of Utrecht, a hypothetical British expansion of maritime spaces east of Gibraltar would be safeguarded in the future for Spanish interests. The article also considers the situation in decolonization of Gibraltar and the applicability of the III Resolution of the III United Nations Conference on the Law of the Sea. Likewise, the link of the controversy in the waters with the need for democratic treatment within Spain and with the United Kingdom of the essential British interests, which are strategic, military, intelligence and security, is underlined. This question is probably the ultimate essence of the whole problem, and it has a structural democratic deficit, since it is necessary to contemplate involving the Spanish Cortes in the real debate on the British military bases, since the situation of British military and strategic privilege it cannot be maintained at the expense of the security of Spain and its citizens. In short, the proposal made is intended to make an argument consistent with the traditional Spanish position on the waters of the “Dry Coast”, through an interpretative review of the Treaty of Utrecht and of the Spanish practice.