Complaint over Eastside development could put Gib waters issue before international court

A complaint over the Eastside development filed recently in a La Linea court could, depending on how the case unfolds, lead to an international tribunal being asked to decide who the waters around Gibraltar belong to, Parliament was told.

The observation was made by Chief Minister Fabian Picardo as he responded to questions from Keith Azopardi, the Leader of the Opposition.

Mr Picardo said Gibraltar would “relish” such a “contest of jurisdictions”, which Spain has to date avoided.

Spain has been challenged in the past to put its case before the International Tribunal on the Law of the Sea, which decides on marine territorial disputes. But Madrid has never taken up the offer.

“The Government is diligently pursuing understanding all of the legal issues that could arise [from the complaint], but in particular not just in Spanish law, in public international law, which is what really matters here, and the contest of jurisdictions that could ensue,” Mr Picardo said.

“A contest of jurisdictions that I am sure he [Mr Azopardi], like I, would relish, because he will recall, as I recall, that it was the Spanish who refused to take the matter of Gibraltar's waters to the International Tribunal of the Law of the Sea when it was offered by the United Kingdom.”

“It is the Spanish that have run scared of a determination by an independent international tribunal of the issue of jurisdiction in the waters.”

“And it is the Spanish that might end up putting it there if they were to seek to do something in their national courts that would make the matter justiciable in international fora, either at the suit of an individual - perhaps a developer, for example, that might find its rights somehow unfairly impaired – or at the suit of a government in some other guise, perhaps in terms of seeking an advisory opinion which doesn't require the other side to agree.”

Mr Picardo said the Government was also working with TNG Foundation, the developer, to ensure there was no adverse impact on its ability to build on a site that had been “properly and legally ceded” by the Gibraltar Government for that purpose.

But the Government was “not intervening in proceedings in a foreign court that purports to exercise extraterritorial jurisdiction which we do not recognise, that's for sure,” Mr Picardo said.

The complaint filed by Spanish environmental prosecutors alleges that reclamation work for the Eastside project could constitute an offence under Spanish law.

Madrid considers the waters around the Rock as its own, a position robustly rejected by the UK and Gibraltar.

Mr Azopardi said there was “common ground” between the Government and the Opposition that Spain has no jurisdiction in the waters around Gibraltar or over the development of an area that is Gibraltar’s sovereign territory.

The Gibraltar Government’s longstanding position is that Spain’s traditional political view on Gibraltar’s waters has no binding legal effect of any kind.

No.6 Convent Place says it applies the highest international standards of environmental protection in Gibraltar waters and abides with rules on the transboundary effects of land reclamation projects.

The Government has also previously highlighted that during Gibraltar’s period of EU membership, the European Commission investigated Spanish complaints about the Eastside project and found that Gibraltar “had done everything properly and by the book, in full compliance with the law”.