Letter and memorandum to the Clerk of
the Committee from Head, Parliamentary Relations Team, Foreign
and Commonwealth Office
Thank you for your letter of 20 July, forwarding
a request from the Foreign Affairs Committee into the detention
of the Ocean Alert in international waters off Gibraltar in July.
This incident took place while members of the Committee were visiting
Gibraltar and Madrid.
As requested, I attach a memorandum on the Ocean
Alert incident, including a full explanation of the application
of international law to the waters off Gibraltar; responsibility
of the British and/or Gibraltar authorities for the activities
of Ocean Alert while it was operating from Gibraltar and for the
removal of artefacts recovered from the seabed apparently to the
United States by air from Gibraltar; and confirmation of whether
the Odyssey vessels had the use of a RN berth or other RN facilities
in Gibraltar.
THE OCEAN
ALERT INCIDENT
Application of International Law to the Waters
off Gibraltar
The Ocean Alert, a Panamanian-registered
vessel belonging to the US company Odyssey Marine Exploration,
was detained by Spain's Guardia Civil at a point 3.5 miles south
of Gibraltar on 12 July, in waters which the United Kingdom considers
to be high seas. Accordingly, in our view, the detention should
only have taken place with the consent of the flag State. This
was the basis for our protest to the Spanish authorities.
Under the terms of the 1982 United Nations Convention
on the Law of the Sea (UNCLOS—ratified by the UK in 1997),
coastal States are entitled, but not required, to claim territorial
sea up to a maximum breadth of 12 nautical miles. Where the coasts
of two States are opposite or adjacent—as is the case around
Gibraltar—neither is entitled, unless they agree otherwise,
to extend its territorial sea beyond the median line. The British
Government considers a limit of three nautical miles to be sufficient
in the case of Gibraltar. Under UNCLOS, the nine miles beyond
that limit are high seas, and cannot be claimed by another State;
it was in this area that the Ocean Alert was detained.
Spain maintains that the Treaty of Utrecht of
1713, which granted sovereignty over Gibraltar to Britain, ceded
only the town and castle, together with the Rock's fortifications
and its port. Spain therefore disputes our claim that, as a result
of later developments in international law, including particularly
UNCLOS, Gibraltar generates its own territorial waters.
We categorically reject the Spanish view, and
we do not allow Spain's assertion that Gibraltar has no territorial
waters to go unchallenged.
This was most recently explained to the House
of Commons in an answer to a written Parliamentary Question tabled
by the Honourable Member for Romford, Andrew Rosindell, on 2 March
(Official Record, Column 1625W).
A map of our interpretation of the status of
the waters is attached.
Responsibility of the British and/or Gibraltar
authorities for the activities of Ocean Alert while it was operating
from Gibraltar and for the removal of artefacts recovered from
the seabed apparently to the United States by air from Gibraltar.
Odyssey Marine Exploration is a private US company
specialising in deep-ocean shipwreck exploration.
Since 2004, they have had a contract with the
Disposal Services Agency of the MOD to identify and excavate the
possible wreck of The Sussex, a British military ship which
sank in a storm off Gibraltar in 1691 with the loss of her crew
and valuable cargo. Work on this project has been delayed due
to Spanish objections. After nine years of intervention and delay,
Spain finally agreed in March this year to allow the project to
proceed as long as two Spanish experts were on board Odyssey's
vessels. However, there were further delays as the Andalucian
Government failed to nominate its two experts.
While waiting in Gibraltar for work on The
Sussex to proceed, Odyssey worked on other projects in the
Mediterranean and Atlantic. On 10 April and 16 May they sent consignments
from a wreck they named Black Swan to the USA via chartered
flights from Gibraltar. Odyssey told us that this wreck lay about
180 miles off the coast of Portugal, in the high seas outside
Spanish or Gibraltar waters. Both consignments were given export
licenses by the Government of Gibraltar, in accordance with Gibraltar
law. These consignments, containing gold and silver coins, are
now the subject of a court case in Florida between Odyssey and
the Spanish Government.
The Spanish Ministry of Foreign Affairs has
been particularly critical of the MOD's role. The MOD has no authority
regarding Gibraltar Customs procedures, as the Government of Gibraltar
is responsible for its own Customs controls. The MOD is obliged
to honour its contract with Odyssey unless a legal or operational
security issue exists to prevent it from doing so.
Neither the British or Gibraltar authorities
were responsible for the activities of Odyssey in relation to
the Black Swan.
Confirmation of whether the Odyssey vessels
had the use of a RN berth or other RN facilities in Gibraltar.
Odyssey have had a commercial contract with
the MOD (Defence Estates, Gibraltar) since December 2005 to use
the MOD berths and facilities within the military part of Gibraltar
harbour. Such an agreement is not unique.
Two of the company's vessels, the Ocean Alert
and the Odyssey Explorer, have operated out of Gibraltar
throughout this period.
7 September 2007
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