Spanish Navy Ship exercises jurisdiction in BGTW with guns manned, says Gibraltar Government - UK says "innocent passage"

A Spanish Navy warship motored through British Gibraltar Territorial Waters on Sunday afternoon with its guns uncovered and asked at least two commercial ships to leave their anchorage off the eastern side of the Rock.

The Gibraltar Government said there are still some in the Spanish navy "who think they can flout international law".

But the UK government played down the incident, saying no illegal incursion took place.

What happened in Gibraltar waters on Sunday afternoon?

1. Spanish navy warship Tornado motored through Gibraltar waters. GBC’s cameras managed to capture it, and her path was shown on vessel tracker apps.
2. Secondly, the warship asked commercial ships to leave their anchorage off the eastern side of the Rock, claiming they were in Spanish waters. We know this from a VHF recording obtained by the Gibraltar Chronicle. The Gibraltar Port Authority told the commercial vessels they were in Gibraltar waters and were asked to stay put, which they did.
3. The warship Tornado P44 was photographed with its guns uncovered and manned. It sailed slowly through Gibraltar waters.
4. The Royal Navy responded: HMS Scimitar and a RHIB went out to shadow the Spanish ship. The Spanish warship left after being challenged by the Royal Navy.
5. It’s the second visit this month by Tornado.

Those are the facts. But there are differing accounts of what they mean.

Comments by the Gibraltar, UK and Spanish Governments

The Gibraltar Government claimed the warship had taken executive action in Gibraltar waters when it ordered commercial ships to leave. A spokesman said there is only nuisance value to the foolish games being played by those who don't accept British sovereignty over the waters around Gibraltar as recognised by the whole world in the United Nations Convention on the Law of the Seas."

A spokesperson for UK Prime Minister Theresa May said there had not been an incursion. He said the UK is certain of its sovereignty over the whole of Gibraltar, including British-Gibraltar Territorial waters, and any incursions are a violation of sovereignty, but not a threat to it. This was echoed locally by the Convent. Defence Minister Gavin Williamson also told the UK Parliament that: “we will always be there to defend our sovereign interests and defend Britain’s national interests”.

Responding to yesterday's incident, Spain's Foreign Ministry claimed the waters around the Rock are Spain's, that she projects her sovereignty in them "in keeping with international law" & that the warship was carrying out its normal duties.

Innocent passage?

The story has been covered by the Spanish press and the UK media. Many observers are bemused as to how the UK could claim there was no incursion when there is video footage and vessel tracker apps showing the vessel in waters close to the Rock.

This is partly answered by considering: what is innocent passage? A vessel can only be considered to be on innocent passage through British waters if it's moving continuously and expeditiously, and is not engaged in any activities that are prejudicial to Gibraltar or the UK. That's the basis of expert legal advice received by the Government on the question of innocent passage as it relates to the United Nations Convention on the Law of the Sea.

So, maybe the attempt by the Spanish navy to interfere with lawful shipping activity happened when Tornado was outside Gibraltar waters? How would that change things? It is not clear as it would be an incident with no clear precedence. 

Curiously, none of the early UK statements on Monday mentioned the VHF audio recording obtained by the Gibraltar Chronicle or the Spanish navy's attempted interference. No representative of the British Government engaged with these specific issues publicly until the Office of the Governor issued a statement on Monday evening; it said the British Ambassador Simon Manley has raised concerns with the Spanish Government. 

Gibraltar Government effectively rejects UK reading of "innocent passage"

And, there’s more. The Gibraltar Government issued a second statement this evening quoting from their legal advice. It effectively rejects the UK government’s reading of yesterday’s incident; according to Fabian Picardo’s Government, it was an illegal incursion. 

It says Madrid itself has confirmed the motive behind the incursion was to pursue Spain’s sovereignty claim over Gibraltar’s waters, meaning it indisputably breaches the United Nations Convention on the Law of the Sea. It says instructing merchant vessels to move was “prejudicial to the peace, good order and security of the coastal State”.

The Gibraltar Government says it is nonsensical that Spain should deploy one of its warships to play war games in British waters at a time when there are serious threats in this area which are well known.

Picardo: We will not be bullied

According to Mr Picardo, Spain is either unable to control its military or is prepared to use its military to advance a political claim. It says actions such as this create confusion and unnecessary risk to the lives of mariners.

The Chief Minister said the people of Gibraltar won't be bullied now or after the 29th of March, after Brexit.

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