A world legal expert on the law of the sea is to be engaged by the Gibraltar Government to probe the concept of ‘innocent passage’ as a concept of international law. The concept is regularly cited in relation to Spanish warships and Guardia Civil vessels when they pass through British Gibraltar Territorial Waters, usually when they do not engage in any other activity.
The Government said last night that it has commissioned a legal opinion on the definition of innocent passage “given the discussions relating to the procedure which is used at present to categorize the entry into British Gibraltar Territorial Waters of foreign state vessels.”
The Government points out that UNCLOS Article 18(1) says that passage includes traversing the territorial sea without entering internal waters, or proceeding to or from internal waters. This passage “shall be continuous and expeditious”.
”There are presently three internal categorizations used when Spanish state vessels enter BGTW. These were explained in public by the Minister for Europe David Lidington before the Foreign Affairs Committee of the House of Commons in April of this year,” said No 6.
No 6 states that the most serious Category is A. “These incursions constitute both a violation of sovereignty and a deliberate attempt by Spain to show that it is exercising jurisdiction. The example was given at the time of Spanish state survey vessels carrying out official work in BGTW.”
The second Category is B which are those where there is evidence that a Spanish vessel has been patrolling or perhaps changing its course or speed within BGTW. A Category C incursion is where a Spanish vessel has crossed British Gibraltar waters but is exercising a right of innocent passage. No 6 says that Article 19 of the United Nations Convention on the Law of the Sea states that passage is not innocent if it is “prejudicial to the peace, good order or security of the coastal State”.
A foreign state vessel passing continuously and expeditiously without changing course and maintaining the same speed could still be conducting coastal espionage or patrolling thereby making a sovereignty point, says No 6 adding that this would be a contravention of UNCLOS and therefore unlawful.
“Indeed, the records show that between 7.30am and 8.00am practically every day there is an incursion into BGTW which could be classed as a patrol. Spanish state vessels have entered BGTW 69 times so far in November. This has included the Guardia Civil, Salvamento Maritimo, the Spanish navy, the Servicio de Vigilancia Aduanera, a Fisheries protection vessel and a survey vessel. There was a Class A incursion by the Spanish navy vessel SPS Alboran last week where the vessel maintained when challenged that it was in Spanish waters. The Alboran (P62) is a 66 meters Chilreu class patrol boat.”
The Government says it now intends to study the opinion when it is delivered in order to determine what steps to take.