The official Spanish position that Gibraltar does not have territorial waters is legally flawed - says the ex Head of the international legal department in the Spanish Foreign Ministry

The Spanish Foreign Ministry has been advised that its policy claiming that Gibraltar has no territorial waters lacks legal foundation.

This is the opinion of Jose Antonio de Yturriaga, ex head of the Spanish foreign ministry's legal department on international affairs. It is also held by others, as confidential files in the ministry show.

The official Spanish Government position is that Gibraltar does not have territorial waters because the Treaty of Utrecht of 1713 only granted to the British Crown the town and port but there was no mention of the waters surrounding the Rock.

But this rstrictive interpretation of the treaty does not appear to have a serious juridical base, says Sr Yturriaga, who draws attention to what was established by the UN convention of 1958 on territorial waters, such as that the sovereignty of a state extends beyond its territory and its interior waters, to its territorial sea.

The official Spanish thesis would mean that Gibraltar would equally not have airspace, which the ex Spanish legal adviser calls 'absurd.'

He makes the equally valid point that at the beginning of the 18th century - when Utrecht was conceived - it was not the practice to refer to the territorial waters of a state.

The Spanish ministerial adviser lists arguments against the official Spanish line which - for political reasons - has maintained the theory that Gibraltar does not have territorial waters.

Yet, in the files on international legal advice in the foreign ministry there are a number of reports - some written by Sr Yturriaga - which argue the point of a lack of juridical foundation in the Spanish denial of Gibraltar waters.

The ministry has maintained its official line, although within a low profile, he says. Conscious of the weakness of its legal position, the Spanish government has adopted a discreet attitude against the continued exercise of British sovereignty over the coasts of Gibraltar to a distance of 3 miles from its littoral and of a median line in respect of the Spanish coastline.

It is well known that while Spain adopts a negative stance about Gibraltar's territorial waters it refuses to take such matters to the International Court of Justice.

The ex Legal adviser on international affairs at the

Spanish foreign ministry, however, upholds the Spanish policy in respect of recovering Gibraltar for Spain, is against converting Gibraltar in a third force in negotiations and refers to the possibilities of joint sovereignty over a limited period of time, with Gibraltar having a political status similar to the more advanced Spanish autonomies.

The ex legal advisor, who is of ambassadorial rank, thinks that Spain, should reconsider its negative position over the waters issue - which Spain must recognise in international law. If it were to change its position, it should not be difficult to reach an agreement on the median line principle - this would improve neighbourly relations and the fight against smuggling and drug trafficking as well as maritime security in the Strait etc.

By improving its juridical situation, Spain would benefit its political position in its negotiations with the UK in solving the conflict over Gibraltar.

*Dr Yturriaga retired from the diplomatic service four years ago, and apart from being the ex Head of the international legal department at the Spanish foreign ministry has also been an ambassador.