Gibraltar's contested waters: it's time to settle this unedifying spat

Spain and the UK are at loggerheads once again over who owns the waters around the disputed territory of Gibraltar. Spanish boats have been spotted off the shore in an incident that has left British diplomats bristling link.

The latest argument rests on whether the Spanish police’s drugs and money laundering squad broke the law by chasing a suspect into Gibraltarian waters. The British Foreign office made an official complaint on August 9 about maritime and aerial trespass, while Spain of course insists it acted within its rights.

This is but the latest flare-up in a tiff between two apparently grown-up nations that now requires international intervention.

The right of hot pursuit

Coastal states do have the undeniable right to follow and arrest ships escaping their territory for the high seas if they are carrying and dumping narcotics.

In this specific case, the Spanish authorities could defend themselves by falling back on this doctrine of “hot pursuit”. But the doctrine is subject to certain conditions that could make a claim tricky. In the first place, pursuit must be continuous and unbroken. This is to be sure that the true offender is apprehended.

Hot pursuit must also cease once the chased vessel enters into the maritime spaces of other sovereign nations. Spain could pursue the suspect vessels to the very ends of the earth in international waters but it ought to have stopped once they entered British or any other sovereign nation’s territorial water space – that is, within 12 nautical miles of all sovereign coasts.

The problem, however, is that there are significant issues of sovereignty, jurisdiction and control over Gibraltar, pitting Spain and the UK against each other. Spain contests the UK’s sovereignty over the entire Gibraltarian territory so rejects any suggestion that Gibraltar has a right to any territorial waters at all. As a result Spanish fishing vessels frequently enter the area. So what may appear to be a game of cat and mouse is in a sense actually a necessary dance in international relations.

Gibraltan police patrol after the alleged incursion.Reuters/John Nazca

The disputed territory is a prize of war that has been ruled by Britain since 1713. It continues to robustly resist Spanish attempts to undermine the validity of British jurisdiction in Gibraltar waters. In this high stakes game, prompt diplomatic protests and mild forms of gunboat diplomacy feature prominently.

Vigilance is key to the ultimate success of the claims of all parties involved. Hence within 48 hours of the last trespass allegations, the Spanish ambassador was unceremoniously summoned to the Foreign Office. In February 2015 a “formal protest” was issued after a Spanish warship entered British-controlled waters around Gibraltar and disrupted a Royal Navy training exercise.

When the Gibraltar authorities dropped 74 concrete blocks into the disputed waters just off the island’s coast, ostensibly to create an artificial reef and encourage sea-life to flourish, Spain imposed stricter checks at their common border, causing long delays for people trying to get on and off.

Britain and Gibraltar cried foul, arguing that the checks were politically motivated, but the European Commission took the opposite view and ruled that the checks had not broken European law.

Not the only hard place

Ironically if Spain wants justice in this matter it must do justice over the other territories it holds dear but which apparently belonged to African nations as well. Border shenanigans take place in Africa on a relatively frequent basis.

Any lasting resolution to the Spanish and UK sovereignty dispute must take cognisance of another dispute between Spain and Morocco over Ceuta, Melilla, Penon de Velez de la Gomera, Alhucemas and the Chafarinas Islands.

The number of incidents, stand-offs and near military engagements in the Gibrlatar tiff is accelerating, making it ripe for intervention under the rules of the UN. To save Europe from a shameful face-off between respectable nations, something ought to be done – and quickly. The imperatives are clear.

Genuine good faith negotiations (probably assisted by the European Union) should be started over the Gibraltar question with an aim to resolve it completely within an appropriate period.

Failing that, an international court or arbitral body should be urgently seised of the matter.

A third option exists, but is too horrible to contemplate: the recourse to repeated gunboat diplomacy, skirmishes and armed conflict.

Gbenga Oduntan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.