SPAIN Trends and Developments Contributed by: Albert Prats Ribas and Jordi Mayol Orga, BUFETE A. PRATS
Access to ports and administrative control of foreign trade Access to ports is a manifestation of the sovereignty of the coastal State. Article 25.2 of UNCLOS recog - nises that the coastal State shall have the right to take the necessary measures to prevent any violation of the conditions to which the admission of ships into its internal waters or port facilities is subject. Article 20 of the LNM confers on the Maritime Administration the power to condition, restrict or prohibit navigation in Spanish maritime spaces for reasons of maritime safety and security, and to prevent the carrying out of illegal activities or the exercise of prohibited traf - ficking. It is essential to note that the measures adopted by RDL 10/2025 are based primarily on the administrative control of foreign trade in defence material in accord - ance with Law 53/2007 and RD 679/2014, and not on the direct exercise of the powers to restrict access to ports regulated in Article 20 of the LNM. This distinction is relevant when assessing the con - formity of Spanish measures with international obli - gations under UNCLOS. Article 21 allows the coast - al State to enact laws on customs matters during innocent passage, but this power is subject to the obligation established in Article 24.1, which prohib - its the coastal State from “imposing on foreign ships requirements that have the practical effect of denying or impeding the right of innocent passage”. There is therefore a clear regulatory hierarchy: when a customs measure has the effect of de facto denial, the prohibi - tion in Article 24.1 prevails as a closing rule. Regime of innocent passage and protection of technical stops Article 17 of UNCLOS establishes that ships of all States, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea. Article 24.1 specifies that the coastal State shall not impede innocent passage and shall refrain from imposing requirements that have the “practical effect of deny - ing or impeding that right”. In line with this provision, Articles 37 to 45 of the LNM substantially reproduce these provisions, recognising that navigation through the territorial sea by all foreign vessels shall be subject
to the regime of innocent passage, which must be swift and uninterrupted. The denial of access to port based solely on the nature of the cargo does not constitute a violation of the right of innocent passage in a strict technical sense, pro - vided that the vessel retains the possibility of trans - iting through the territorial sea without interruption, unless, given the circumstances of the specific case, the measure has a practical effect equivalent to an impediment to protected transit, particularly in the absence of reasonable alternatives. On the other hand, it should be recalled that Article 18.2 of UNCLOS provides that passage “includes stopping and anchoring, but only to the extent that they are normal incidents of navigation or are imposed on the ship by force majeure or serious difficulty”. In other words, stopovers resulting from force majeure are protected as an integral part of the right of inno - cent passage under Article 18.2 of UNCLOS. On the contrary, routine stopovers (scheduled refuelling, ordi - nary provisioning) do not enjoy such enhanced pro - tection. By ordering the systematic refusal of transit authorisa - tions for goods falling within its material scope, RDL 10/2025prevents ships carrying such goods from making operational stopovers in Spanish ports. The legal question that arises is whether the systematic refusal that makes it impossible to exercise innocent passage in certain strategic trade routes is compatible with Article 24.1 of UNCLOS. Transit passage through the Strait of Gibraltar: a more restrictive legal regime Article 37.1 of the LNM expressly states that “naviga - tion through the Strait of Gibraltar shall be governed by the provisions of Part III of the 1982 United Nations Convention on the Law of the Sea”. This reference means that navigation through the Strait is governed not by the general regime of innocent passage (Part II, Articles 17–26), but by the specific regime of transit passage (Part III, Articles 37–44). The legal difference between the two regimes is sub - stantial. While Article 21 of UNCLOS allows the coast - al State to enact laws regulating innocent passage in
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