Gibraltar, Strait of Donald R Rothwell - Oxford Public International Law

Gibraltar, Strait of
                                        Donald R Rothwell

                                        Content type: Encyclopedia entries
                                        Product: Max Planck Encyclopedias of International Law
                                        [MPIL]
                                        Module: Max Planck Encyclopedia of Public International
                                        Law [MPEPIL]
                                        Article last updated: March 2009

  Subject(s):
  Straits — UNCLOS (UN Convention on the Law of the Sea) — Innocent passage — Marine environment,
  protection
  Published under the auspices of the Max Planck Institute for Comparative Public Law and International
  Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date:
05 November 2024

A. History and Geography
  1 The Strait of Gibraltar (‘the Strait’) is a body of water at the western extremity of the
  → Mediterranean Sea which connects the Mediterranean with the Atlantic Ocean. It is one
  of the most significant global → sea lanes because it provides a means of seaborne transit
  for shipping between the Atlantic and Mediterranean, and via the → Suez Canal into the
  Indian Ocean and beyond. Because of its strategic location, and the access that it has
  granted to the States which fringe the Mediterranean in both Southern Europe and
  Northern Africa, the Strait has longstanding historic and strategic significance.

  2 The Strait lies between the southern most tip of Spain and the northern tip of Morocco.
  At the north eastern edge of the Strait is the territory of → Gibraltar, which is governed by
  the United Kingdom. Whilst Britain has exercised effective control over Gibraltar since
  1713, its status has been contested by Spain for many centuries. The Bay of Gibraltar,
  which separates Gibraltar from the Spanish town of Algeciras, is an indentation along the
  southern Spanish coastline which fronts directly onto the Strait. The small Spanish enclave
  of Ceuta is at the south eastern extremity of the Strait on the African coast (→ Ceuta and
  Melilla). In the 20th century, up until 1956, France asserted control over part of Morocco
  including that area which fronted the Strait. The States which therefore currently have
  direct interests over the Strait, and which assert maritime claims over the waters of the
  Strait, are Morocco, Spain, and the United Kingdom.

  3 Between its entry and exit points, the Strait is 36 miles long and less than 8 miles wide at
  the point between Point Marroque (Spain) and Point Cires (Morocco). The western
  extremity of the Strait between Cape Trafalgar (Spain) and Cape Spartel (Morocco) is 27
  miles long. The eastern extremity of the Strait between Europa Point (Gibraltar) and Ceuta
  is 14 miles long.

  B. International Navigation in the Strait of Gibraltar
  4 In 2006 it was estimated that east–west traffic through the Strait totalled 65,000 vessels
  while cross-strait north–south traffic was 30,000 vessels. The cross-strait traffic included
  more than 5 million passengers, 1.3 million vehicles and 190,000 trucks. The significance of
  the ‘sea bridge’ between Southern Europe and North Africa is such that consideration is
  being given to the building of an undersea rail tunnel across the Strait, which would ease
  the movement of goods and persons, thereby reducing cross-strait sea traffic, which in turn
  would reduce some of the navigational congestion in the Strait.

  5 There are a number of significant → ports along the Strait, including the Port of
  Algeciras, the Port of Gibraltar, and the Port of Tangier. The capacity of these ports is
  increasing with new terminals having opened or being planned for the Spanish and
  Moroccan ports and coast. In addition, Morocco announced in 2008 its intention to build its
  first Mediterranean naval base between Ceuta and Tangier. Significant bunkering
  operations are conducted in some of these ports, which carries an associated risk of fuel
  spillage (see also → Environmental Accidents).

  6 Until the opening of the Suez Canal in 1869, the Strait of Gibraltar was the only means of
  oceanic access to and from the Mediterranean Sea. The longstanding strategic importance
  of the Strait has been well recognized throughout history, and this is reflected in the
  contests that have taken place between major maritime powers over control of the Strait.
  The closure of the Suez Canal between 1968–1975 highlighted the importance of the Strait
  as the only means of seaborne access to the Mediterranean Sea. In more recent decades the
  role of the Strait in combination with the Suez Canal as the primary sea routes for trade
  between Europe and the growing markets of East and South Asia, and as a route for tanker

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date:
05 November 2024

traffic carrying Middle East oil for European markets, has only served to reconfirm the 21st
  century significance of the Strait.

  C. Historical Constraints upon Navigation
  7 Due to the strategic significance of the Strait, navigational rights have been closely
  controlled throughout history (→ Navigation, Freedom of). Spain gained control of territory
  on either side of the Strait in 1610, and notwithstanding the subsequent British control
  acquired over Gibraltar by the 1713 Treaty of Peace and Friendship between Great Britain
  and Spain (‘Treaty of Utrecht’), it was Spain which exercised control over the Strait up until
  the late 19th century. Whilst rarely seeking to close the Strait completely, Spain did require
  merchant vessels (→ Merchant Ships) to hoist their flags when passing through the Strait in
  order to identify themselves (see also → Flag of Ships). This practice continued until as late
  as 1864 when the British vessel Mermaid was subject to cannon fire as a result of a failure
  to hoist its ensign. Spain abolished its practice of requiring ship identification by way of the
  Declaration between Great Britain and Spain for the Abolition of the Practice of Firing on
  Merchant Vessels from British and Spanish Forts in the Straits of Gibraltar of 1865.
  However, passage through the Strait remained a sensitive issue, and in the 1904
  Declaration between France and Great Britain Respecting Egypt and Morocco concluded at
  a time when France had control of the North African coast it was provided that

        In order to secure the free passage of the Straits of Gibraltar, the two Governments
        agree not to permit the erection of any fortifications or strategic works on that
        portion of the coast of Morocco comprised between, but not including, Melilla and
        the heights which command the right bank of the River Sebou. (Art. VII Declaration
        between France and Great Britain Respecting Egypt and Morocco)

  D. The Law of the Sea and International Navigation
  8 The contemporary → law of the sea has had a significant impact upon navigation through
  the Strait of Gibraltar. As the law of the sea has progressively recognized the right of
  coastal States to assert → territorial sea claims, straits of a certain breadth have been
  converted from bodies of water through which → high seas navigation could be enjoyed to
  areas which fell within a territorial sea regime. Initially, because the Strait of Gibraltar was
  greater than 6 nautical miles at its narrowest point, there remained a high seas corridor
  through which ships could pass under the → customary international law regime of a 3
  nautical mile territorial sea. However, once the breadth of the territorial sea was extended
  to 12 nautical miles under the 1982 United Nations Convention on the Law of the Sea
  ([signed 10 December 1982, entered into force 16 November 1994] 1833 UNTS 396; ‘UN
  Convention on the Law of the Sea’), straits such as Gibraltar were prone to overlapping
  territorial sea claims by the adjoining coastal States, which potentially had a capacity to
  place significant constraints upon the freedom of navigation. In the case of the Strait of
  Gibraltar, this was a particular issue because of its strategic significance, and due to the
  potential for three States to assert overlapping territorial sea claims over the waters of the
  Strait.

  1. Status of the Strait of Gibraltar under International Law
  9 Part III UN Convention on the Law of the Sea provides a distinctive regime for straits
  used for international navigation (→ Straits, International). Whilst Part III UN Convention
  on the Law of the Sea addresses the circumstances of a number of different types of straits,
  the Strait of Gibraltar falls within the principal category of straits which were the main
  focus of attention during the negotiations at the Third United Nations Conference on the
  Law of the Sea (→ Conferences on the Law of the Sea). As the Strait of Gibraltar is a strait
  through which no high seas corridor exists, and which is used by international navigation

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date:
05 November 2024

for passage between one part of the high seas or the exclusive economic zones (→ Exclusive
  Economic Zone; ‘EEZ’) in the Atlantic Ocean and another part of the high seas or the EEZ in
  the Mediterranean Sea, it is a strait through which the right of → transit passage applies.

  10 An alternate position with respect to the application of Part III UN Convention on the
  Law of the Sea is that the Strait of Gibraltar is governed by a ‘long-standing international
  convention’ with the result that under Art. 35 (c) UN Convention on the Law of the Sea, the
  transit passage regime does not apply. The basis for this position, asserted by Italy and the
  USSR during the Third United Nations Conference on the Law of the Sea, rests with an
  interpretation of the 1904 Declaration between France and Great Britain Respecting Egypt
  and Morocco, and the subsequent 1912 Convention between France and Spain respecting
  Relations in Morocco under which the freedom of navigation through the Strait was
  guaranteed. Both Spain and Morocco rejected this interpretation during Conference
  deliberations and at best it remains a minority position and does not reflect the
  contemporary right of transit passage through the Strait.

  11 Spain has been careful to ensure that its rights under the Treaty of Utrecht are not
  prejudiced by its ratification of the UN Convention on the Law of the Sea, and upon signing
  and ratifying the Convention lodged a declaration to the effect that ‘this act cannot be
  interpreted as recognition of any rights or situations relating to the maritime spaces of
  Gibraltar which are not included in article 10 of the Treaty of Utrecht’ (United Nations
  Division for Ocean Affairs and the Law of the Sea (ed), The Law of the Sea: Declarations
  and Statements with Respect to the United Nations Convention on the Law of the Sea and
  to the Agreement relating to the Implementation of Part XI of the United Nations
  Convention on the Law of the Sea of 10 December 1982 [United Nations New York 1997]
  16).

  2. Transit Passage Regime
  12 Importantly for the Strait of Gibraltar, it, along with a number of other strategically
  important straits throughout the world, was the subject of special attention during the
  negotiations at the Third United Nations Conference on the Law of the Sea resulting in
  recognition being granted to a new regime of transit passage which applied in certain
  international straits. The right of transit passage permits shipping a right of navigation for
  the purposes of ‘continuous and expeditious transit of the strait’ (Art. 38 (2) UN Convention
  on the Law of the Sea) and thereby allows for ongoing navigation rights of access and
  egress to the Mediterranean Sea. Navigational rights through the Strait of Gibraltar are
  therefore in the first instance governed by the transit passage regime of the UN Convention
  on the Law of the Sea, supplemented by additional international instruments dealing with
  matters such as safety of shipping (see also → Maritime Safety Regulations), and protection
  of the marine environment (→ Marine Environment, International Protection), and in
  addition applicable coastal State laws and regulations adopted by the strait States in
  conformity with international law.

  3. Maritime Zones within the Strait
  13 The relevant maritime zones claimed by the strait States include a 12 nautical mile
  territorial sea, a 24 nautical mile → contiguous zone, and a 200 nautical mile EEZ, though
  Spain’s claim only extends to the Atlantic Ocean. In the case of Gibraltar, the United
  Kingdom only claims a 3 nautical mile territorial sea. The consequence of this is that on the
  western approach to the Strait ships pass through the EEZs of either Spain or Morocco,
  through which they enjoy the freedom of navigation, until such time as they enter either
  State’s territorial sea at which point the transit passage regime commences. A right of
  transit passage is then enjoyed as a ship passes through the Strait, including through the
  territorial sea generated offshore to Gibraltar. Once a ship exits the Strait and passes into

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date:
05 November 2024

the Mediterranean Sea proper, the vessel will in most instances enter EEZ or high seas
  areas within which the freedom of navigation can be exercised.

  E. Safety of Navigation in the Strait of Gibraltar
  14 Consistent with the regime of transit passage under the law of the sea, including other
  international conventions such as the 1972 Convention on the International Regulations for
  Preventing Collisions at Sea ([signed 20 October 1972, entered into force 15 July 1977]
  1050 UNTS 17; ‘COLREGS Convention’; → Collisions at Sea) and the International
  Convention for the Safety of Life at Sea ([signed 1 November 1974, entered into force 25
  May 1980] 1184 UNTS 2; ‘SOLAS Convention’), the → International Maritime Organization
  (IMO) has proclaimed a traffic separation scheme in order to ensure the safe passage of
  shipping through the Strait. The scheme, which is given the force of law under the SOLAS
  Convention, is subject to ongoing review and adjustment to reflect changes in traffic levels
  and direction. To further enhance the safety of shipping as it passes through the Strait, in
  1997 a mandatory ship reporting system was put in place in the Strait of Gibraltar. All ships
  passing through the Strait are therefore required to comply with the provisions of the ship
  reporting system, which has been developed in accordance with IMO guidelines and has its
  legal basis in the SOLAS Convention.

  F. Overflight in the Strait of Gibraltar
  15 The international regime of straits as provided for under the UN Convention on the Law
  of the Sea also provides for a right of → overflight in international straits. Overflight can
  therefore be exercised through the Strait of Gibraltar consistent with the UN Convention on
  the Law of the Sea, which requires that civil aircraft observe internationally agreed rules of
  the → International Civil Aviation Organization (ICAO) (see also → Air Law). This is an
  important right as it means that civil aircraft do not need to overfly land territory to access
  the Mediterranean Sea at its western extremity, and, given the longstanding dispute which
  has existed between Spain and the United Kingdom with respect to Gibraltar, has meant
  that civil aircraft can approach Gibraltar airport without the need to overfly Spain.

  G. Marine Environmental Protection in the Strait of Gibraltar
  16 Due to the volume of navigation through the Strait of Gibraltar there are risks
  associated with collisions resulting in significant marine pollution, or the spillage of oil and
  other substances by ships engaged in passage (see also → Marine Pollution from Ships,
  Prevention of and Responses to). These issues are partly addressed through IMO
  conventions such as the COLREGS Convention and SOLAS Convention, but are also covered
  by specific marine pollution conventions. The Mediterranean Sea has long been recognized
  as a ‘special area’ under the Convention for the Prevention of Pollution from Ships ([signed
  2 November 1973, entered into force 2 October 1983] 1340 UNTS 184) and the Protocol of
  1978 Relating to the International Convention for the Prevention of Pollution from Ships
  (with Annexes, Final Act and International Convention of 1973) ([signed 17 February 1978,
  entered into force 2 October 1983] 1340 UNTS 61; ‘MARPOL 73/78’). ‘Special areas’ are
  those bodies of water which, due to technical reasons relating to their oceanographical and
  ecological conditions when combined with their volume of sea traffic, have had special
  mandatory methods adopted for the prevention of certain type of marine pollution. The
  Mediterranean Sea has been a special area under Annex I MARPOL 73/78 since 1983 with
  the effect that significant constraints are placed upon the discharge by ships of oil. The
  Mediterranean is also subject to ‘special area’ designation under Annex V MARPOL 73/78
  dealing with limitations on the disposal by ships of ‘garbage’, which was adopted in 1988
  but as of 2008 had yet to enter into force. Ships entering the Strait of Gibraltar from the

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date:
05 November 2024

Atlantic Ocean therefore become subject to these enhanced Mediterranean Sea marine
  pollution provisions as they transit the strait.

  17 In addition to the relevant international marine pollution conventions and regimes, the
  waters of the Strait of Gibraltar have increasingly become subject to more stringent marine
  environmental protection measures adopted by the literal States. Following significant
  maritime casualties such as the Agean Sea (1992) and the Prestige (2002), Spain
  announced that as from 1 January 2003 single-hull tankers flying any flag and carrying
  heavy fuel oil, coal tar, or heavy crude oil would be prohibited from entering Spanish ports,
  terminals, or anchorage areas. Whilst this Spanish decree could not limit transit passage
  through the Strait of Gibraltar due to freedoms associated with transit passage under the
  law of the sea, the practical effect of this provision was to impact upon a considerable
  volume of shipping passing through the Strait because of their need to stop at Spanish
  ports for either bunkering services or to offload cargo.

  H. Military Uses of the Strait of Gibraltar
  18 In recent years, as the strategic importance of the Strait of Gibraltar has grown, there
  has been an increased military usage of the Strait. Joint exercises are conducted from time
  to time by Spanish and Moroccan → armed forces, which may also be conducted in
  conjunction with → North Atlantic Treaty Organization (NATO) forces. However, the law of
  the sea makes clear that it is not possible to suspend transit passage through the Strait
  even in the event of military exercises taking place. This is to be contrasted with provisions
  dealing with → innocent passage in the territorial sea, which can on an occasional basis be
  subject to temporary suspension when military exercises are taking place within those
  waters (see also → Naval Demonstration and Manoeuvres).

  19 Following the terrorist attacks upon Washington and New York in 2001 heightened
  security measures were put in place in some strategic international sea lanes. In 2003,
  NATO announced that Alliance naval forces would escort Allied commercial and civilian
  naval vessels through the Strait of Gibraltar as a measure to protect shipping from terrorist
  attacks (see also → Terrorism).

  I. Significance of the Strait of Gibraltar to International Law
  20 The Strait of Gibraltar continues to be of considerable economic, historic, legal, and
  strategic significance, and this may further develop in future years as links between North
  Africa and Southern Europe expand. The Strait is an area in which there is considerable
  legal history with respect to not only its status, but also the surrounding lands and the
  practice of maritime law within its waters. In contemporary times the Strait is an example
  of the implementation of the transit passage regime of the UN Convention on the Law of the
  Sea, and also illustrates the complex interaction of that regime with other applicable
  conventions dealing with marine pollution and more generally maritime law.

  Select Bibliography
        WC Abbott An Introduction to the Documents Relating to the International Status of
        Gibraltar (Macmillan New York 1934).
        JN Moore ‘The Regime of Straits and the Third United Nations Conference on the Law
        of the Sea’ (1980) 74 AJIL 77–121.
        SC Truver The Strait of Gibraltar and the Mediterranean (Sijthoff & Noordhoff Alphen
        aan den Rijn 1980).

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date:
05 November 2024

JA de Yturriaga Barberán ‘Estatuto jurídico del Estrecho de Gibraltar y consecuencias
        de la construcción de una obra fija’ (1981) 6 Anuario Hispano-Luso-Americano de
        derecho internacional 185–217.
        HS Levie The Status of Gibraltar (Westview Press Boulder 1983).
        JA de Yturriaga Barberán Straits Used for International Navigation: A Spanish
        Perspective (Nijhoff Dordrecht 1991).
        SJ Lincoln ‘The Legal Status of Gibraltar: Whose Rock is It Anyway?’ (1994–1995) 18
        FordhamIntlLJ 285–331.
        M Hofer Die Rückgabe Gibraltars an Spanien (Braumüller Wien 1996).
        J Astley and MN Schmitt ‘The Law of the Sea and Naval Operations’ (1997) 42
        AFLRev 119–55.
        RR Churchill and AV Lowe The Law of the Sea (3rd ed Manchester University Press
        Manchester 1999).
        F Aguilera Iborra Gibraltar: Optionen unter Berücksichtigung der internationalen
        Politik und des völkerrechtlichen Rahmens (Universität der Bundeswehr München
        2000).
        Má Acosta Sánchez (ed) Las dimensiones internacionales del estrecho de Gibraltar
        (Dykinson Madrid 2006).
        Ministerio de Asuntos Exteriores y de Cooperación (ed) La cuestión de Gibraltar
        (Ministerio de Asuntos Exteriores y de Cooperación Madrid 2007).

  Select Documents
        Convention between France and Spain respecting Relations in Morocco (signed 27
        November 1912) 217 CTS 288.
        Convention on the Territorial Sea and the Contiguous Zone (signed 29 April 1958,
        entered into force on 10 September 1964) 516 UNTS 205.
        Declaration between France and Great Britain Respecting Egypt and Morocco (signed
        8 April 1904, entered into force 8 April 1904) 195 CTS 198.
        Declaration between Great Britain and Spain for the Abolition of the Practice of Firing
        on Merchant Vessels from British and Spanish Forts in the Straits of Gibraltar (signed
        2 March 1865) 130 CTS 457.
        Treaty of Peace and Friendship between Great Britain and Spain (signed 13 July 1713,
        entered into force 4 August 1713) 28 CTS 295.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date:
05 November 2024