Environmental Audit CommitteeLetter from Rt Hon David Lidington MP, Foreign and Commonwealth Office

I am writing on behalf of the UK Government to respond on the Gibraltar issues raised in the oral evidence taken by the Committee from Dr Chris Tydeman, Chair of the UK Overseas Territories Conservation Forum (UKOTCF) in April and in UKOTCF’s supplementary written evidence in June.

In his oral evidence Dr Tydeman commented on the UK Government’s position on enforcement of the Gibraltar Nature Protection Act 1991 within British Gibraltar Territorial Waters (BGTW). However, under the Gibraltar Costitution the UK Government is responsible for external affairs, defence and internal security, while HM Government of Gibraltar (HMGoG) is responsible for all other matters, including the management of the marine environment and the Nature Protection Act. The UK Government respects the Constitution and supports the rule of law. We have neither urged HMGoG to abolish the Nature Protection Act nor put HMGoG under pressure to allow Spanish fishermen to fish illegally within BGTW. Instead, we have supported HMGoG’s efforts to find a solution to the dispute with Spanish fishermen, encouraging all parties to show restraint and cooperate with HMGoG. We believe that dialogue and cooperation offers the best chance of ensuring respect for the law and enabling environmental protection.

Illegal fishing by Spanish vessels within BGTW has posed problems since the passage of the Nature Protection Act but the issue has become a major source of friction since March 2012 when HMGoG ended an informal agreement with the fishermen, made in 1999, which had allowed limited fishing despite the provisions of the Act. The offending fishermen have received support from vessels of the Spanish Guardia Civil, which make unlawful incursions into BGTW with the aim of preventing the Royal Gibraltar Police from enforcing the law. Other unlawful Guardia Civil incursions into BGTW have also increased significantly. This is utterly unacceptable and contrary to international law, specifically the provisions of the UN Convention on the Law of the Sea (UNCLOS). We have protested in strong terms to Spain, including summoning the Spanish Ambassador in London to the Foreign and Commonwealth Office on 15 November 2012—the first EU Ambassador to be summoned for many years. The summoning of the Ambassador was a response to two particularly serious incursions; one by a naval vessel and one by a Customs vessel. However, the summoning was in the context of the repeated protests that we had previously made to the Spanish Government about incursions, the vast majority of which concerned Guardia Civil vessels. The Prime Minister and I protested to the Spanish Prime Minister and the Spanish Minister for the European Union respectively following an incident on 23 June 2013 in BGTW. In the course of an unlawful incursion by a Guardia Civil vessel, a Guardia Civil officer is reported to have discharged non-lethal shots from a firearm while in pursuit of a Gibraltarian jet ski.

In his oral evidence Dr Tydeman claimed that the Nature Protection Act was not being enforced effectively because the Royal Navy is not tasked with fisheries protection. However, in accordance with the Constitutional division of responsibilities, it is the Royal Gibraltar Police and not the Royal Navy that is tasked with enforcement of Gibraltar law, including the Nature Protection Act. The main tasks of the Royal Navy Gibraltar Squadron (RNGS) are to protect visiting warships and to uphold British sovereignty within BGTW1.

As the Committee will be aware, there is a long-standing difference of position between the UK and Spain in relation to sovereignty over Gibraltar’s waters. We are confident of British sovereignty over BGTW, since under international law territorial waters flow from sovereignty over the land. Yet for many decades there have been unlawful incursions into BGTW by vessels of the Spanish State. Although such behaviour is a challenge to British sovereignty, it has not posed a threat to it. Incursions cannot change international law. The Royal Navy upholds British sovereignty by challenging all unlawful incursions by State vessels by means of radio warnings, issued either by RNGS vessels or by units ashore in Gibraltar, and through close monitoring until the offending vessels leave BGTW.

In his oral evidence Dr Tydeman questioned statements that I purportedly made in the House on 16 October 2012 about Royal Navy activity in Gibraltar. I believe that he may have been referring to the debate of 15 October on an Urgent Question tabled by Jim Dobbin MP(HC 15 Oct 2012 : Column 24), as I did not speak about Gibraltar in the House on 16 October. In that debate I said that the Royal Navy challenges Guardia Civil and other Spanish State vessels whenever they make unlawful maritime incursions into British Gibraltar Territorial Waters. I can confirm that the Royal Navy has continued to carry out this task of upholding sovereignty throughout the fishing dispute and has issued warnings to all Guardia Civil vessels which have attempted to support illegal fishing. Private vessels, such as those that fish illegally within BGTW, are not State vessels and their activities are not included in the 176 unlawful incursions by State vessels to which I referred in my Written Answer of 20 May 2013 and which UKOTCF quote in their written evidence (HC: 20 May 2013: Column 510W). The policing of private vessels is a matter for the Royal Gibraltar Police.

British Forces Gibraltar (BFG) closely monitor movements of Spanish State vessels within BGTW and determine whether they are lawful according to the rules on innocent passage, as defined in UNCLOS. Many of the passages through BGTW by Spanish State vessels constitute lawful “innocent passage”, as defined in UNCLOS. However, whenever BFG assess that a movement is a violation of the right of innocent passage they categorise it as an unlawful incursion. They then issue appropriate warning(s) to the vessel(s) concerned and we protest to the Spanish Government on diplomatic channels. In their written evidence UKOTCF refer to “suggestions” from the UK Government that it is difficult to determine whether a Guardia Civil vessel is violating British sovereignty. It is unclear to which UK Government statements this refers. We have always been clear that British sovereignty is violated when:

A Spanish State vessel attempts to exercise jurisdiction in BGTW, for example by interfering with the jurisdiction of the Royal Gibraltar Police.

A Spanish State vessel passes through BGTW without attempting to exercise jurisdiction, but her passage is neither continuous nor expeditious and is therefore in contravention of UNCLOS Article 19 governing the right of innocent passage.

The UK Government is clear that unlawful incursions by vessels of the Spanish State are an unacceptable violation of British sovereignty and contrary to international law, specifically the provisions of UNCLOS. We maintain diplomatic pressure on the Spanish Government to stop this behaviour. We remain fully committed to upholding British sovereignty over Gibraltar and BGTW, in accordance with the wishes of the people of Gibraltar, and we rule out no options in doing so. However, our differences with Spain on Gibraltar issues should be resolved by political and legal means rather than by naval confrontation. I believe that an escalation on the waters would be likely to heighten tensions and make it more difficult for HMGoG to find a solution to the fishing issue, and for progress to be made with Gibraltar and Spain on other Gibraltar-related issues.

I hope that this clarification of the UK Government’s position is of assistance to the Committee. I would be happy to provide further information if the Committee would like me to do so.

1 July 2013