A numbers game in Gibraltar’s territorial waters

During a recent week, UK military officials in Gibraltar counted 12 maritime incursions by Spanish state vessels into British Gibraltar territorial waters and seven air incursions by Spanish state aircraft into British airspace over the Rock.

A busy week, but not unusual lately.

As always, the incursions were challenged and logged in what has become a numbers game between London and Madrid as each capital seeks to maintain a presence and demonstrate jurisdiction over this strategic location, while countering the others’ influence.

Each Spanish incursion is challenged by the Royal Navy, recorded by the Ministry of Defence and protested by UK Foreign Office officials, who send complaints through diplomatic channels making clear the presence of Spanish vessels and aircraft in areas under British control is unlawful under international rules.

According to a Spanish Government response to a parliamentary question tabled by Basque MP Jon Inarritu in the Spanish Congress, the Spanish Government received 46 notes verbale - or diplomatic protests - from the UK Government complaining about 666 incursions.

The historical data in the response showed a massive jump in incursions in 2012, when 25 complaints were filed in respect of 170 incursions. Just a year earlier, the number of complaints was seven in respect of nine incidents.

Since 2012, the Spanish data shows that the level of activity has increased sharply, as have the number of diplomatic protests.

The British position is well known and repeated almost as a mantra whenever an incursion makes the news bulletins.  “Incursions are a violation of sovereignty, not a threat to it,” the standard British line goes. “They do not weaken or undermine the legal basis in international law for British sovereignty over Gibraltar, including British Gibraltar Territorial Waters.”

What is less clear is the Spanish position and the rationale behind the incessant presence of Spanish vessels and aircraft around the Rock. Why would a European country and NATO ally adopt such a confrontational, potentially dangerous posture?

Officials here tasked with monitoring this activity confess privately that they struggle to see patterns in the Spanish movements, in part because incursions are triggered by different factors, even down to the personalities of individual crews.

Sometimes, for example, Spanish law enforcement vessels move through British waters at night without navigation lights. There may be obvious operational reasons for this in a region rife with smuggling, but transiting British waters without radio contact or lights is a breach of international rules. An incursion, in other words.

On other occasions, Spanish vessels exercising the right of innocent passage - described under the UN Convention of the Law of Sea as sailing through another country’s waters via the shortest route and at steady speed without delay or unnecessary changes of direction - slow down or change tack, or cut through an outer corner of British waters without reason. Another incursion.

At the top end of the scale are situations where Spanish vessels attempt to exercise jurisdiction, for example by boarding a pleasure vessel or attempting to take water samples without permission. These are viewed as the most serious and potentially risky types of incursion, not least because they often create friction between British and Spanish navy and law enforcement crews. In the past, they have led on rare occasions to the Spanish ambassador in London being summoned to the Foreign Office for a face-to-face dressing down.

In the air, the most serious incursions have led to delays to commercial flights as controllers in Gibraltar ensure clear airspace to avoid any safety risks.

Taken together, Spanish incursions amount to constant psychological pressure on Gibraltar, amplified by the fact that in the modern era of social media communication, incidents are logged and photographed not just by military officials but by local ship and plane spotters who share their images widely and are passionate about ensuring Spanish activity does not go unnoticed.

As with everything, understanding the factors at play requires close attention to detail, and awareness of the wider issues at play.

Viewed from Gibraltar, Madrid is using military assets to publicly underline its sovereignty aspirations over the Rock, its waters and its airspace. That much is indisputable.

But the Spanish view of Gibraltar and the wider Strait of Gibraltar is as much about Madrid’s regional defence and security ambitions as it is about its view of Gibraltar and sovereignty. The incursions, in particular the ones by the Spanish Navy, are part of routine deployments within an organisational structure underpinned by policy and legislation.

For clues, look no further than the Spanish Government’s public strategy documents, in particular its 2013 National Maritime Strategy briefing, which states: “Other factors that could give rise to risks or threats are the pending maritime delimitations with neighbouring countries, a situation which is not infrequent in the maritime sphere. In this sense, Gibraltar poses security problems in diverse areas for Spain and Europe, which require efficient solutions in line with the parameters established by the United Nations in the Brussels Declaration of 1984, as agreed by the Spanish and British governments.”

In that one telling paragraph, Spain mixes its sovereignty aspirations with its defence strategy on the Iberian peninsula’s southern maritime axis. The practical outcome of that mix can be seen almost daily in British Gibraltar territorial waters. Recent friction between Spain and Morocco over maritime space around the Canaries, and Algeria and Spain over similar territorial delimitations in the Mediterranean, add yet another layer of complexity to the regional picture.

There are other, less obvious signs too that point to a shifting landscape. Earlier this year, while all eyes were tracking activity on the water and above the Rock, a little-noticed development unfolded on land that could signal yet another attempt by Spain to tighten the ratchet.

In early February, the Spanish Navy’s operations and surveillance centre [Centro de Operations y Vigilancia de la Armada, or COVAM], published data on vessel movements during 2019 and recorded 105 incidents in waters around the Rock. That was interpreted by the few media outlets in Spain that reported on the figures as 105 “clashes” between Spanish and British vessels.

In fact, however, the data points to something far less mundane than occasional stand-offs between British and Spanish vessels, and might hint at a deeper long-term strategy in Madrid.

A spokesman for the Spanish Navy told this newspaper that the data collected by the COVAM was recording not clashes between British and Spanish vessels, but rather certain types of vessel movements in British waters.

The COVAM records “all types of incidents” on its database and, where Gibraltar is concerned, two types in particular, the Spanish Navy spokesman said.

These include “entry and exit of military and oceanographic ships of interest” and “anchorage or failure to comply with the rules of innocent passage under international law in waters around the Rock”, he added.

Asked to expand on this classification, the spokesman would not be drawn on whether the warships logged by the COVAM were British or belonged to other countries, describing that level of detail as “confidential”. He added, however, that all oceanographic vessels were logged irrespective of flag state.

“As for violations of innocent passage, we are talking about merchant ships,” the navy spokesman said. “According to the UN Convention on the Law of the Sea, innocent passage consists in navigating through another country’s territorial sea, rapidly and without delays. Additionally, innocent passage must not be prejudicial to peace, good order or the security of the coastal state. For that reason, when a ship is anchored in a country’s territorial waters without prior authorisation, or is sailing at slow speed, the right to innocent passage is violated.”

The danger for Gibraltar of the Spanish position is that it could translate in practice to interference with legitimate commercial trade in British waters. This is not a theoretical supposition, and there are some known examples of Spanish actions targeting merchant ships in British waters around Gibraltar.

Last February, for example, the Spanish warship Tornado ordered at least two vessels, the Gibraltar-flag Iver Accord and the Hong Kong-flag Great Victory, to leave the Rock’s eastside anchorage, even though both vessels were in British waters under the jurisdiction of the Gibraltar Port Authority. Neither of the vessels complied with the order and the Spanish vessel continued on its way, shadowed by vessels from the Royal Navy’s Gibraltar Squadron.

The incident drew a furious reaction from the Gibraltar Government at the time, which described the Spanish actions as “a senseless provocation” that risked undermining efforts to foster closer cross-border cooperation in the face of regional threats and challenges. The UK Government initially played down the incident, insisting there was no incursion despite the Chronicle publishing a recording of the radio exchange between the Spanish warship and the two merchant ships. But after the Spanish Government itself confirmed that its vessel had issued orders to ships “in Spanish territorial waters adjacent to the Rock", the UK Government stepped up its response, making formal diplomatic protests via its then ambassador to Spain, Simon Manley.

Beyond specific examples, however, the most important takeaway from the COVAM data is the fact it was made public at all. Seasoned watchers of Spanish maritime incursions cannot recall a time when Spain has previously released data of this nature. In effect, Madrid is doing now what the UK has been doing for years, monitoring maritime traffic in British waters around Gibraltar and making public its data for all to see.

Spain, far from just sending its warships and planes into British space as a matter of routine, appears to be attempting to exert jurisdiction in this heavily congested space and, most importantly of all, is signalling publicly that it is doing so. These days, it’s not just the UK counting incursions and creating a public narrative about jurisdiction over this sensitive stretch of sea overlooking one of the world’s busiest maritime chokepoints.

The UK Government’s response to incursions is a constant source of frustration for many Gibraltarians, who view the diplomatic protests as ineffective. But in wanting to see a firmer stance on Spanish provocation, there is a danger of drifting into ridiculous fantasies about boarding vessels or worse. UK officials, caught between Spanish posturing and the justifiable anger of Gibraltarians, are often just as frustrated as the rest of us, if not more so.

This tension is never more evident than when the UK classes as “innocent passage” the highly-visible, yet nonetheless legal, transit of a Spanish warship through British waters. The UK uses a strict interpretation of the international rules of innocent passage to justify its position, something that rankles even with the Gibraltar Government, which believes Spain is seeking to exploit the language of the UN Convention on the Law of the Sea for political benefit.

To understand London’s position, we must look to tensions on the other side of the world, where the UK is among the western countries seeking to define limits to Chinese expansion in the South China sea. Last year, the Royal Navy exercised its right to innocent passage by sailing warships close to islands where China was reclaiming land from the sea and asserting maritime sovereignty. For the UK to use a more flexible interpretation of the UN rules to counter Spanish activity around Gibraltar, in other words, risks undermining its position in another corner of the global map.

Such are the dynamics of the geopolitical realities we are caught up in, and the result is as obvious as it is uncomfortable. Where the UK recorded around 750 unlawful incursions last year - a figure still being finalised - the Gibraltar Government puts the number far higher.

Protecting the integrity of British Gibraltar territorial waters is the constitutional responsibility of the UK Government, but the dissonance between London’s legalistic approach to incursions, justified as it may be, coupled to the unsettling impact of the reality at sea and in the air, sits uneasily with that goal.

The UK’s sovereignty over Gibraltar waters is clear, as was evidenced under the glare of the international media by the incident last year with the Iranian tanker Grace 1, which was boarded and detained by armed Gibraltarian police officers with support from the Royal Marines on suspicion it was breaching EU sanctions on Syria. There can be no clearer message on sovereignty than a Gibraltar-led law enforcement operation with UK military backing to enforce international sanctions in British waters two miles off the Rock.

But while there is no desire to ramp up tensions, particularly against the backdrop of Brexit talks that seek to do precisely the opposite, there is an inescapable sense in the face of undeniable evidence that the UK and Gibraltar need a better long-term strategy to counter Spanish incursions.

"The UK needs to reconsider its posture in the defence of the sovereignty of British Gibraltar territorial waters,” a spokesman for No.6 Convent Place said.

“Diplomatic protests are essential in international law and must continue, but a more assertive stance may soon become unavoidable given how foolishly Spain appears determined to escalate matters.”

“After Grace 1, however, nothing will ever be the same, as the Britishness of our waters is more unchallengeable than ever, and that may explain Spain's useless ramping up of incursions.”

How the UK might review its stance in Gibraltar waters is a delicate subject. Already the Royal Navy shadows most Spanish movements through British waters, even in cases of innocent passage, and visiting UK warships often conduct so-called sovereignty patrols almost as a matter of routine while entering and leaving the naval base. Against the backdrop of tensions in areas of North Africa including Libya, the continued use of the naval base in support of UK foreign policy goals in the Mediterranean and beyond will also reinforce British sovereignty at sea around the Rock.

But UK military and Foreign Officers planners will also be wary of the risk of creating a dangerous tit-for-tat escalation that no one wants.

For that reason, the primary response must be diplomatic, perhaps by seeking ways to pile international pressure on Spain to cease its unlawful, provocative actions. The message must be that when it comes to defence, security and law enforcement, we are all on the same side, and that gunboat diplomacy of the sort played out by Spain in British Gibraltar territorial waters is a tactic best consigned to the history books.