18095.
PUBLIC RECORD OFFICE
Reference :-
C.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
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SIR
No. 186.
(GIBRALTAR.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice, August 11, 1898.
WE were honoured with your commands signified in Mr. Wingfield's letter of the 8th instant, stating that he was directed by you to transmit for our consideration and report a despatch from the Governor of Gibraltar requesting instructions as to the limits of British territorial waters in the Bay of Gibraltar, in view of the contingency, during the present state of war between the United States and Spain, of possible attempts at capture or other belligerent action within the waters of the Bay, or attempts to violate Her Majesty's Proclamation of Neutrality.
That on receipt of this despatch you had caused it to be referred to the Foreign Office, War Office and Admiralty, pointing out that as helligerent action anywhere within the Bay would involve serious risk to the numerous vessels and coal-hulks in the harbour, you considered that the Governor should treat as British waters, for the of preventing
purpose
any such action, the full three miles around the Rock.
That the replies of these departments were enclosed with Mr. Wingfield's letter, and that on the 24th of May the Governor was instructed by telegraph in the sense of the letter from the Admiralty of the 19th of May.
That the correspondence of 1879-83, to which reference was made, would be found in the Parliamentary Paper, a copy of which was enclosed, and that Mr. Wingfield was also to enclose a copy of a Foreign Office Memorandum summarising the voluminous correspondence which had passed with the Spanish Government on the subject of the limits of the territorial jurisdiction of the Bay,
That the British Government had always maintained that they were entitled to jurisdiction over an extent of waters extending three miles around the Rock on every side, and Mr. Wingfield was to call our attention to the despatches of Mr. Canning and Viscount Palmerston, Nos. 3 and 10, in the enclosed confidential print, in which that view was maintained, and he was also to refer us to a memorandum by the late Attorney-General of Gibraltar (enclosure 2 in No. 14 in the confidential print) and to the report of our predecessors, No. 15, in the same print.
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That it would be seen from the correspondence in the Parliamentary Paper that the effort of Her Majesty's Government to obtain a conventional line of demarcation of jurisdiction in the Bay bad failed because the Spanish Government refused to acquiesce in any line which conceded to Great Britain jurisdiction over waters which washed Spanish territory, and Her Majesty's, Government was therefore not bound by the line which they were then prepared to accept.
That Mr. Wingfield was to request that we would take these papers into our consideration, and advise you whether the instructions sent to the Governor of Gibraltar, based on the Admiralty letter of the 19th of May, were proper and sufficient.
In obedience to your commands we have taken the papers into our consideration, and have the honour to
Report-
That we think there is some inconsistency between the first and second paragraphs
of the Admiralty despatch of the 19th May, 1898.
We think that a reasonable solution of the difficulties as regards the extent of territorial jurisdiction in the Bay is to be found in the medium filum indicated on the plan.
But we cannot see how it can at the same time he asserted that the territorial waters of the fortress extend beyond this line for the purpose of preventing any danger to the fortress or shipping. The two propositions are not consistent.
It may well be that there is a right on the part of the Governor of Gibraltar to prevent any action even outside the territorial waters which necessarily constitutes a danger to the fortress or to the shipping in the port, but this must rest not on the doctrine of territorial jurisdiction, but on the right of the neutral to prevent warlike operations which necessarily involve direct injury to himself.
427-25-8/98 Wt 21618 D & S
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