SPAIN Trends and Developments Contributed by: Albert Prats Ribas and Jordi Mayol Orga, BUFETE A. PRATS
the territorial sea, Article 44 of UNCLOS, applicable to straits used for international navigation, categori - cally states that “the coastal States of a strait shall not impede the passage in transit... There shall be no sus - pension of passage in transit”. In addition, Article 42.2 prohibits such laws from “having the effect of denying, impeding or impairing the right of transit passage”. Strictly speaking, the denial of access to the port of Algeciras does not in itself prevent transit passage through the Strait of Gibraltar, which ships can exer - cise without the need for a port call. However, inso - far as Algeciras is one of the main supply ports in the western Mediterranean, the systematic denial of access to certain ships could be examined under the more stringent standard of Article 44 if it is proven that it has a de facto hindering effect on routes that depend on that port of call to complete their transit. By ordering the systematic refusal of transit authori - sations for goods falling within its material scope destined for Israel, RDL 10/2025 potentially affects ships using the Strait of Gibraltar on their trade routes, which have historically made supply stops in Algeci - ras. In this context, the question arises as to whether such measures could be assessed under the more demanding standard of Article 44 of UNCLOS when it is proven that they have an impeding effect on the effective exercise of transit passage. The approach of US maritime law and the competences of the FMC The Maritime Security Programme and its strategic relevance The MSP is regulated by Title 46 USC, Chapter 531, and is one of the pillars of US maritime and national security policy. Through this programme, the federal government enters into operational agreements with private ship-owners who maintain US-flagged ves - sels available for mobilisation by the Department of Defence in the event of a national emergency or con - flict. The MSP is directly linked to the maritime policy objec - tives set forth in 46 USC § 50101 (a), which include maintaining a merchant marine sufficient to transport a substantial portion of foreign trade by water and
capable of serving as a naval and military auxiliary in times of war or national emergency. The vessels integrated into the MSP operate on regu - lar commercial routes in peacetime, but must be pre - pared to act as naval auxiliaries in crisis situations. The operational reliability of these vessels and their access to strategic ports are central elements of the country’s maritime security system. Denial of access to key ports, such as Algeciras (one of the main tran - shipment hubs in the western Mediterranean), com - promises both the commercial viability of the routes and the responsiveness of the maritime transport sys - tem in emergency scenarios. Regulatory framework: Title 46 USC, Chapter 421 Title 46 USC, Chapter 421 (Sections 42101 to 42109) gives the FMC the authority to adopt regulations designed to adjust or address “general or special conditions unfavourable to shipping in foreign trade”. According to Section 42101 (a), these conditions may arise from the laws or regulations of a foreign country, or from practices employed by owners, operators or masters of foreign vessels. The regulatory develop - ment is found in 46 CFR Part 550, which establishes procedures for filing petitions, investigating restrictive practices and taking corrective action. This regulatory framework responds to a functional logic characteristic of US maritime law: the legislator does not require foreign practices to be illegal under international law for the FMC to take action. It is suf - ficient that such practices create unfavourable condi - tions for US maritime transport. The FMC examines the material impact on the commercial and strategic interests of the United States, regardless of the legal classification of foreign measures in other jurisdic - tions. The investigation into Spanish port practices The denial of access in November 2024 to three MSP vessels at the APM terminals in Algeciras (see Intro- duction , above) prompted the FMC to open a formal investigation under Title 46 USC Chapter 421 (Docket No 24-30, FMC-2024-0022), published in the Federal Register on 6 December 2024 (89 FR 96973). The
590 CHAMBERS.COM
Powered by FlippingBook