HAS MADRID BLINKED FIRST?

In recent weeks and months I have written numerous articles on the row between Spain and Britain-Gibraltar over the Rock’s waters. Spain maintains that Gibraltar has no territorial waters except those of its harbour whilst Britain claims for Gibraltar the international accepted three-mile limit whilst Gibraltarians insist that under the same law the Rock is entitled to 12 miles. These already muddy waters have been clouded further by the EU giving Spain jurisdiction over much of Gibraltar’s waters in environmental matters. This occurred because of a cock-up in Whitehall when Britain claimed the seas off Algeria in error.

Now on Monday evening four Guardia Civil were arrested in Gibraltar and held for two hours after their patrol boat pursued a suspected drug trafficker into the waters of the Rock. The zodiac launch had first been spotted in the Strait and in the chase it entered Gibraltar’s territorial waters. Although these are not recognised by Spain it is usual for the Guardia Civil to liaise with the Royal Gibraltar Police in such instances and for the RGP to take up the chase.

It would appear that the two drug traffickers entered Gibraltar’s port to seek refuge. They were duly arrested by the RGP and taken along with the crew of the Guardia Civil patrol boat to be questioned. Matters then switched to a political level with Spain’s Minister for the Interior, Alfredo Pérez Rubalcaba, making a telephone call to the chief minister, Peter Caruana, to apologise over the “incorrect action” of the agents. Rubalcaba was especially anxious to dissociate the action of the Guardia Civil from any political motive. The chief minister is reported to have accepted the Spanish minister’s assurances and apology especially given the tension in the Rock’s waters in recent weeks between the Guardia Civil and the RGP plus the Royal Navy.

But why did Rubalcaba apologise? As Spain does not recognise Gibraltar’s jurisdiction over those waters surely he should have screamed and shouted that his officers had been detained illegally and demand an apology along with their release.

Britain recently politely requested the Spanish Government to stop its Guardia Civil and naval patrols from entering Gibraltar’s waters. This polite request was probably accompanied by the message that if they continued then Britain and Gibraltar would pull out of the tripartite forum and the Córdoba Agreement.

Had they done so it would have left Spain’s policy on Gibraltar in tatters. The socialist government of Zapatero has invested much time and effort in pursuing a policy of engagement and co-operation in order to break down the barriers with the Rock so that in the medium to long term some accord on sovereignty could be secured. To have that policy tossed aside now would leave the Spanish government open to derision in Spain – and especially from the Partido Popular opposition. It would have also opened up a rift with Britain just as Spain takes over the EU presidency and needs the support of all member nations.

If the Spanish press reports are correct and Rubalcaba both apologised for the actions of the Guardia Civil officers then also stressed it had no political implications – he blinked. And in the game of diplomatic brinkmanship – if you blink – you’ve lost.

BUNGLE OVER TROUBLED WATERS

In my Gibraltar column last week – The Waters Are Troubled Enough – I wrote: "There are two disputes between Spain and Gibraltar – Britain over the Rock’s territorial waters. The historic row is that Spain insists that Gibraltar has no territorial waters other than the harbour whereas Gibraltar – Britain claim under international agreement and law three miles which could be extended to twelve. The more recent friction, which this article relates to, is due to the EU that has given Spain responsibility in environmental matters over much of the waters round the Rock.

"Hence it is understandable that the Gibraltar Government has gone hot under the collar over suggestions by the Opposition that Spain was now in the process of making a third claim. Not so – it insists: "Spain has not designated more British Gibraltar Waters for EU Environmental Protection purposes".

"In a statement to clarify the situation and leaving the historic claim aside the Government says: "The waters affected remain only those proposed by Spain in 2008, and listed by the EU Commission in its existing decision which is the subject of a legal challenge by the Gibraltar Government.""

The Gibraltar Government then went on to specify what action it and the British Government were taking and the importance of the UK bringing its own legal challenge.

Well no sooner had my column gone to press than Graham Watson, the Liberal Democrat MEP who represents the South West of England and Gibraltar in the European Parliament, broke some startling news. If you are one of those who wonder what Euro MPs do for their money then his press statement will go some way to answering that question.

Graham Watson has discovered how UK government bungling has allowed Spain to register Gibraltar’s territorial waters as a Spanish　Site of Community Importance under EU environmental legislation.

His statement read: "Gibraltar and the UK were dismayed to discover recently that a Spanish application for an SCI covering the waters around the Rock had been approved by the European Commission. Graham Watson MEP tabled a parliamentary question demanding how this could have happened when the UK had already registered the area around the Rock as a UK SCI. No clear reply was received, other than that the UK had not objected to the Spanish application.

""I assumed this was an oversight on　our government’s part", the MEP commented; "inexcusable but not unheard of. On further study I have discovered that in the UK’s application for an　SCI, Gibraltar was positioned at longitude 5 degrees 22 minutes East of Greenwich.　Yet Gibraltar is situated at 5 degrees 22 minutes West of the prime meridian. In other words the UK’s submission placed it in waters north of Algiers, which means that the Spanish application did not overlap with our SCI.""

Fair enough – mistakes especially with this British government - do happen. However this scenario begs certain questions. When the EC received Britain’s application didn’t somebody in Brussels notice the error and duly advise the Foreign Office? If they did – did the UK Government act to rectify the mistake? If they didn’t - does Britain thus have jurisdiction in environmental matters over waters north of Algiers that aren’t even in the EU? We seem to only have half they story and it appears to be a UK and EC bungle!

By the by Graham Watson’s father served in Gibraltar as a Royal Naval officer　and he is a qualified marine navigator himself. He said: "The litany of UK bungling over matters regarding the Rock gets longer and longer. Which bureaucrat in the cuckoo’s nest of government policy-making is responsible? If the Spanish Armada　had made such a basic error, they’d have foundered before Drake even had the opportunity to sink them. Were it not　for　the EU’s　having abolished　the death penalty, this government official might be hung, drawn and quartered for such a crass mistake!"

Steady lad, steady - I didn’t know Liberal Democrats could get so excited!

Apparently Graham Watson has asked the Foreign Secretary to endeavour to correct the matter so that no quarter be given to Spanish claims to sovereignty.

"We should never have agreed to Spain joining the EU until they renounced their claim," he adds – now he sounds like disgusted of Tunbridge Wells. Or may be Gibraltar’s seemingly most active Euro MP had his tongue firmly in cheek.

What is fact is that the Gibraltar will never be allowed to get in the way of pan-European relations. Britain and Spain share too many common interests for them to flounder on the Rock. The EC just wishes Gibraltar would float away and refuses to be drawn in to the debate or row over what it sees as old Imperial territory. The fact is that the EU was so pleased that Spain had thrown off the Franco era and embraced democracy it was never going to be blackballed by Britain or Brussels over Gibraltar and prevented from joining the European club of supposedly free nations.

TRICK OR TREATY

The news and facts have only started to trickle through in recent days but on Good Friday the Royal Navy patrol boat, HMS Sabre, ordered a Spanish Guardia Civil launch out of Gibraltar waters. According to the Ministry of Defence the Spanish vessel was 200 metres from the buoy in the bay on the Western approach to the airfield. They were asked what their intentions were, and when no reply was forthcoming, they were requested to leave. There have been Spanish claims that HMS Sabre had its guns aimed at the Guardia Civil launch. This is denied by British Forces but it is accepted that HMS Sabre had its guns manned “as is standard practice” when the incident took place.

Although this incident will probably be soon glossed over it does highlight an aspect of the Gibraltar problem for the Spanish. Under the Treaty of Utrecht signed in 1713 at the end of the Spanish War of Succession Gibraltar was ceded to Britain in perpetuity. However the Gibraltar of 1713 and today is vastly different.

For instance to this day Spain insists that Gibraltar has no waters other than those of its harbour. Rubbish says Gibraltar and Britain. Under International Agreements the Rock claims a three mile limit of territorial waters and that could be extended to 12. Also the specific land area of Gibraltar has grown. The land on which the airport stands is reclaimed and disputed as it is outside the boundary designated in the treaty.

When you ready the treaty you can see Spain’s point: “The Catholic King does hereby, for himself, his heirs and successors, yield to the Crown of Great Britain the full and entire propriety of the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging; and he gives up the said propriety to be held and enjoyed absolutely with all manner of right for ever, without any exception or impediment whatsoever.”

However there are other aspects of the treaty that would simply be laughed out of court in this modern day. For example: “And Her Britannic Majesty, at the request of the Catholic King, does consent and agree, that no leave shall be given under any pretence whatsoever, either to Jews or Moors, to reside or have their dwellings in the said town of Gibraltar.” Of course in the present day there is a strong Jewish community in Gibraltar that plays a major role in the life of the Rock. Moroccans (Moors) also contribute to the economy of Gibraltar having replaced Spanish workers when the border was closed in 1969. So should Spain demand that they leave?

Over the years I have received correspondence from many people arguing for the scrapping of the Treaty of Utrecht. I know too that there are politicians on the Rock who believe the treaty could be challenged in the courts.

Being a mere hack myself and not a legal eagle this seems to me to be a risky course to follow. The whole basis of Britain’s hold on the Rock is based on the treaty and if you take that away – where are you – in uncharted waters like a Guardia Civil patrol boat. None-the-less if there is to be a modern agreement on Gibraltar between the people of the Rock, Britain and Spain then I agree it has to be based on an accord of and for these times and not a treaty that has long been discarded and discredited except in the corridors of power in London and Madrid.

GIBRALTAR IN STORMY WATERS

Just when the British Government hoped things couldn’t have got any worse – they have. London is already embroiled in the financial crisis, the row over retired bankers pay-offs and pensions, the privatisation of the Post Office and now Gibraltar’s territorial water comes in to the frame. This is not a spat between London and the Rock but between the UK, Spain and also the EU.

The basis by which Gibraltar is British are the terms laid out in the Treaty of Utrecht of 1713. Nearly 300 years on since its signing it has more holes in it than my old string vest. None-the-less without any more recent agreement that is all we have.

Now Spain has always argued that the treaty sets Gibraltar’s limits purely on the land occupied and that has been exceeded with the pushing of the border closer to La Línea. When it comes to Gibraltar’s waters matters become very choppy indeed.

The Spanish view is that Gibraltar has control of its harbour and nothing else. Hence waters of the bay and the Straits are its. However under international law Gibraltar has a three mile limit plus the median line in the bay and Britain could if it wanted claim 12 miles where that is geographically possible.

Now it emerges that in an EU directive related to environmental matters Spain has claimed responsibility for the majority of the waters surrounding the Rock and Brussels has agreed. The directive aims to protect natural habitats in the Mediterranean and Member States have since 1992 included a listing of the areas that they wish to protect. The United Kingdom had included “Rock of Gibraltar” and “Southern Waters of Gibraltar” as part of the listing of its own sites.

Spain has taken advantage of the updating of the 1992 directive to introduce a new protected area covering all the waters of Gibraltar as if they were Spanish. It was in December that the Andalucía government, at the request of the Spanish Foreign Ministry, included a new “Spanish” conservation area in the directive. The area, which Spain has called “Eastern Straits”, encompasses the same geographical area as the United Kingdom’s “Southern Waters of Gibraltar” and is about five times larger. The Spanish Government has made it clear that this includes all the waters around Gibraltar.

Spain now has EU legal obligations and responsibilities over Gibraltar waters in relation to nature protection. That includes the need to undertake assessments and monitor these areas for wildlife, threats, and other activities with environmental implications. It would follow therefore that Spain has the right to enter Gibraltar’s waters at any time to undertake those tasks.

If the situation wasn’t so serious it would be amusing that it was the Gibraltar Ornithological and Natural History Society that sounded the alarm. They were soon joined by the GSLP/Liberal Opposition and the non-elected PDP. It was only later that the Foreign & Commonwealth Office got in on the act caught like startled rabbits in the spotlight of this fiasco.

Apparently now the communications lines between London, Gibraltar and Brussels are glowing red hot as they try to sort out the shambles that has implications for the Rock’s very sovereignty. However given that the British Government didn’t know the size of the toxic debt it was inheriting when it nationalized certain banks or the terms of the pay-offs of failed directors it is hardly surprising that it wasn’t aware that the EU had given Spain responsibility for Gibraltar’s waters. A stormy sea lies ahead!