This strait connects the Atlantic Ocean to the Mediterranean. It is 36 miles long and narrows to less than 8 miles wide at its narrowest point. Upon signing the LOS Convention in 1984, Spain made several claims of coastal state authority over aircraft exercising the right of transit passage over straits used for international navigation and of coastal state pollution control authority over vessels exercising the right of transit passage in straits used for international navigation. The United States protested in 1985 as follows:
The Government of the United States notes the declaration by the Government of Spain claiming the right of a coastal State to apply to aircraft exercising the right of transit passage coastal state air regulations so long as they do not impede transit passage. The Government of the United States wishes to state its view that this declaration is inconsistent with customary international law as reflected in the 1982 Convention. Civil aircraft exercising the right of transit passage shall observe the rules of the air established by the International Civil Aviation Organization. Those matters as to which a coastal State may properly adopt laws and regulations regarding transit passage do not include air regulations.
The Government of the United States also notes the declaration of the Government of Spain that, with regard to article 39, paragraph 3, the word “normally” is understood to mean “except in cases of force majeure or distress.” The Government of the United States wishes to point out that state aircraft are not subject to the provisions of the Chicago Convention nor to any rules, including rules of the air, issued under the Convention or by the International Civil Aviation Organization. The Chicago Convention requires only that state aircraft operate at all times with due regard for the safety of navigation of civil aircraft. Article 39, paragraph 3 of the 1982 Law of the Sea Convention is consistent with this principle and leaves to each State the discretion to determine the circumstances under which its state aircraft will comply with International Civil Aviation Organization rules of the air, when exercising the right of transit passage. Although a state aircraft would not be obliged to comply with such rules in cases of force majeure or distress, these are not the only circumstances in which a state aircraft would not be obliged to comply with such rules. In this respect, therefore, the declaration of the Government of Spain is not consonant with the well-established international law reflected in the 1982 Law of the Sea Convention.
The Government of the United States further notes the declaration of the Government of Spain that it considers article 42, paragraph 1 of the 1982 Law of the Sea Convention not to prevent the coastal State from applying to foreign-flag vessels in transit passage coastal state laws and regulations giving effect to generally accepted international regulations for the prevention, reduction and control of pollution. In this regard, the Government of the United States wishes to point out that the coastal State may not apply to vessels exercising the right of transit passage its laws and regulations, except such types of laws and regulations as are enumerated in the 1982 Law of the Sea Convention. The only laws and regulations with respect to the prevention, reduction and control of pollution that may be applied to vessels exercising the right of transit passage are those giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait.
In addition, the Government of the United States notes that the Government of Spain considers article 221 of the 1982 Law of the Sea Convention not to deprive the coastal State of a strait used for international navigation of its powers, recognized in international law, in the case of casualties referred to in that article. The Government of the United States agrees that, in the event of maritime casualties, a coastal state of a strait used for international navigation may, within its territorial sea, take reasonable actions in response to pollution or a threat of pollution that may reasonably be expected to result in major harmful consequences. In this regard however the Government of the United States wishes to point out that such rights of the coastal State do not extend to the impeding or suspending of the right of transit passage through a strait used for international navigation.
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The Government of the United States wishes to inform the Government of Spain that it reserves its rights and those of its nationals with respect to all the matters discussed in this communication. In light of our common interests in maritime issues, the Government of the United States would welcome the opportunity to meet with the Government of Spain in technical discussions on these and related matters.
The referenced Spanish declarations stated in part:
- It is the Spanish Government’s interpretation that the regime established in Part III of the Convention is compatible with the right of the coastal State to issue and apply its own air regulations in the air space of the straits used for international navigation so long as this does not impede the transit passage of aircraft.
- With regard to article 39, paragraph 3, it takes the word “normally” to mean “except in cases of force majeure or distress.”
- With regard to article 42, it considers that the provisions of paragraph 1(b) do not prevent it from issuing, in accordance with international law, laws and regulations giving effect to generally accepted international regulations.
. . . .
- It interprets the provisions of article 221 as not depriving the coastal state of a strait used for international navigation of its powers, recognized by international law, to intervene in the case of the casualties referred to in that article.
In conveying the need for this protest, the State Department explained to American Embassy Madrid:
Declarations 2 and 3 are objectionable, because they attempt to impose upon aircraft in general, and state aircraft (military, customs and police aircraft) in particular, obligations that the customary law reflected in the Convention neither imposes nor permits. Declaration number 2 claims the right to require aircraft of other countries exercising the right of transit passage to comply with Spanish regulations so long as such regulations do not have the effect of impeding transit passage. While the coastal State does have an obligation not to impede transit passage, it is also limited in the types of regulations it may impose on such aircraft, whether or not the regulations actually impede transit passage.
Declaration number 2 phrases the coastal State’s right in this regard too broadly. Declaration number 3 is even more clearly objectionable, because it effectively claims that state aircraft – which are not subject to rules of the air promulgated by the International Civil Aviation Organization (ICAO) – must comply with such rules while engaging in transit passage, unless they are prevented from doing so because they are in distress. This assertion is not only contrary to the language of the 1982 LOS Convention, but also to over 40 years of ICAO practice under the Chicago Convention. Article 39, para. 3 of the 1982 LOS Convention states that state aircraft shall “normally” comply with ICAO rules of the air, preserving the discretion of the aircraft’s state of registry. At UNCLOS III, Spain failed in an attempt to have the word “normally” deleted; in consequence, declaration number 3 attempts to the next best thing.
Declarations 4 and 6 involve coastal State rights regarding pollution control regulation and activities in international straits. Article 42 of the LOS Convention permits coastal states to impose upon vessels exercising the right of transit passage pollution control legislation that gives effect to “applicable international regulations” regarding certain substances, including oil. Spain’s declaration number 4 declares that article 42 does not preclude it from also applying to such vessels
legislation that gives effect to “generally accepted international regulations.” The difference, of course, is that regulations that are “generally accepted” because a number of states are parties to the relevant conventions may not be “applicable” to a particular vessel because its flag state is not a party. The distinction is a real one that appears elsewhere in the Convention, and the fact that article 42 speaks only of the coastal State giving effect to the more limited category of “applicable” international regulations implies rather clearly that the coastal State does not have the right to require transiting vessels to comply with the broader category of “generally accepted international regulations.”
Declaration number 6 is not, per se, inaccurate, but its implications are such that an observation, if not an objection, must be made. Simply stated, declaration number 6 seeks to clarify the rights of a coastal State to take, within territorial seas forming an international strait, the same sort of pollution prevention and clean‑up actions respecting a foreign‑flag vessel that it could take even on the high seas, if there were a grave and imminent danger of pollution damage to the coastal State. The United States accepts this position in principle, but must make sure that Spain does not interpret its rights in this regard as extending to the suspension of the right of transit passage for other vessels nor to any right on the part of Spain to require transiting foreign‑flag vessels to participate in clean‑up operations.
In December 1996, the Maritime Safety Committee at its sixty-seventh session approved the mandatory ship reporting system “In the Strait of Gibraltar” Traffic Separation Scheme area. In 2010 the MSC adopted amendments to the existing mandatory ship reporting system “in the Strait of Gibraltar” (GIBREP). The amendments were “aimed at drawing the attention of masters of ships proceeding from the Atlantic to the Mediterranean Sea to report to Tangiers VTS instead of Tarifa VTS as they had done since 1997, thus avoiding a double report.”