Status of Gibraltar

Gibraltar is a British overseas territory on the southern tip of the Iberian peninsula subject to a disputed irredentist claim by Spain.

Gibraltar was conquered by Britain from Spain in 1704, during the War of Spanish Succession (1701-1714). Spain formally ceded the territory under article X of the Treaty of Utrecht in perpetuity to the British Crown in 1713. This was confirmed in later treaties signed in Paris and Seville.

Spain later attempted to recapture the territory militarily, with a number of failed sieges, and reclamation of the territory by peaceful means remains Government policy. For their part, the Gibraltarians reject any claim and no political party or pressure group in Gibraltar supports union with Spain. In a referendum in 2002 the people of Gibraltar soundly rejected a joint sovereignty proposal.

Despite this, an overwhelming majority of the population holds the view that better relations with Spain are desirable. A mass demonstration held in March 2002, whilst condemning the idea of joint sovereignty, called for Good, neighbourly European relations with Spain based on reasonable dialogue and mutual respect.

The territorial claim was restarted by Franco in the 1960s and has been continued by successive Spanish Governments. They have insisted that the Gibraltar dispute is a purely bilateral matter and that the current Gibraltarians are mere settlers whose role and will are irrelevant. This vision underlays the UN resolutions driven by Spain on the decolonisation of Gibraltar in the 1960s, which focused on the "interests" and not the "wishes" of the Gibraltarians. However, the strategy of ignoring the Gibraltarians has proven to be a dead end for Spain. Speaking to the UN C24 in 2006, the Chief Minister of Gibraltar, Peter Caruana, stated: It is well known and documented and accepted by all that, since 1988 Gibraltar has rejected the Bilateral Brussels Process, and will never be content with it.

25,000 people demonstrated in Gibraltar on 18 March 2002.

In 2002 an agreement in principle on joint sovereignty over Gibraltar between the governments of United Kingdom and Spain was reached. There was a robust campaign against these proposals by both the Government and people of Gibraltar, culminating in a decisive referendum. Gibraltarians have further argued that one cannot claim to be acting in the "interests" of a population, while at the same time ignoring its wishes and democratic rights.

With the election of a moderate left-wing government in Spain (2004), Spanish officials noted that, even if Spain does not give up its claim to assume the sovereignty of Gibraltar, no advance could be achieved without taking into account the wishes of the Gibraltarians. The result of this new approach was the creation of a tri-partite forum with equal participation by the Gibraltar government. Such movement was qualified by Spanish right-wing parties as a surrender. Gibraltarians remain suspicious of Spain, despite improved relations, and note Spanish intransigence demonstrated with issues like the opposition to Gibraltar's membership of UEFA.

The capture of Gibraltar and the Treaty of Utrecht

An Anglo-Dutch force led by Sir George Rooke seized Gibraltar in 1704 on behalf of the Archduke Charles, pretender to the Spanish Throne. The territory was eventually ceded to Great Britain by Spain in the 1713 Treaty of Utrecht as part of the settlement of the War of the Spanish Succession. In that treaty, Spain ceded to Great Britain "the full and entire propriety of the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging … for ever, without any exception or impediment whatsoever."

The treaty stipulates that no overland trade between Gibraltar and Spain is to take place, except for emergency provisions in the case that Gibraltar is unable to be resupplied by sea.

In a reversion clause, should the British Crown ever wish to relinquish Gibraltar, Spain was promised it will be offered to it first ("And in case it shall hereafter seem meet to the Crown of Great Britain to grant, sell or by any means to alienate therefrom the propriety of the said town of Gibraltar, it is hereby agreed and concluded that the preference of having the sale shall always be given to the Crown of Spain before any others").

The UK and Spain are both members of the European Union, with Gibraltar joining under the UK treaty of accession. The EU is committed to free movement of goods and services and respect for human rights, thus the UK government and Gibraltarians claim that this supersedes any outdated 'restrictions' contemplated in 1704.

Differing positions

British position

In his evidence to the UK Parliament Foreign Affairs Committee in 2008, Jim Murphy MP, Minister of State for Europe stated:

The UK Government will never - "never" is a seldom-used word in politics - enter into an agreement on sovereignty without the agreement of the Government of Gibraltar and their people. In fact, we will never even enter into a process without that agreement. The word "never" sends a substantial and clear commitment and has been used for a purpose. We have delivered that message with confidence to the peoples and the Governments of Gibraltar and Spain. It is a sign of the maturity of our relationship now that that is accepted as the UK's position.

Gibraltar position

The UK government and Gibraltarians state that the Spanish claims are baseless, pointing to the right to self-determination of all peoples, guaranteed and enshrined by the UN, according to the UN Charter (its article 1 states that

The Purposes of the United Nations are [...] to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples) or to the same resolution 1514 (XV).

Specifically, section 2

All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Furthermore, resolution 2231 (XXI) itself recalls and demands implementation of Resolution 1514(XV) (guaranteeing Gibraltar's right to self-determination) and therefore the Spanish claim for its territorial integrity (which would not be affected by Gibraltar's decolonisation) cannot displace or extinguish the rights of the people of Gibraltar under resolution 1514(XV) or under the Charter.

Any additional right that Spain could claim by virtue of the "reversionary" clause contained in the Treaty of Utrecht is overruled and annulled under article 103 of the UN Charter.

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail

Finally, it is pointed out that there is in fact no principle in International Law or UN doctrine that can displace the inalienable right to self-determination, and that the UN itself and the International Court of Justice have repeatedly stated that:

In the process of decolonisation there is no alternative to the principle of self-determination.

The Gibraltar Government has also argued that Gibraltar is a British territory and therefore by definition not an integral part of any other state, therefore Spain's territorial integrity cannot be affected by anything that occurs in Gibraltar.

Even if integration of a territory was demanded by an interested State it could not be had without ascertaining the freely expressed will of the people, the very sine qua non of all decolonisation.

Consequently the decolonisation of Gibraltar cannot affect the territorial integrity of a country of which it does not form part. It further points out that it is not possible to respect the "interests" of the people of Gibraltar, while at the same time ignoring their wishes, and their democratic rights. They consider it hypocritical for the Spanish Government to claim to respect democratic values while at the same time stating that the democratic wishes of 30,000 Gibraltarians are irrelevant. The Gibraltarian point of view can be extensively seen in the speech of Chief Minister Joe Bossano at the United Nations in 1994.^[1]

In a referendum held in Gibraltar in September 2002, the people of Gibraltar united to reject the concept of even partial Spanish sovereignty. [2]

Speaking to the UK Parliament Foreign Affairs committee in March 2008 Peter Caruana the Chief Minister of Gibraltar noted:

Spain does not dispute that Gibraltar is properly, in law, British territory. Therefore, this is not disputed land. She has a political claim to the return of Gibraltar sovereignty, but she does not dispute the fact that in proper international law, she ceded sovereignty to Britain in perpetuity and therefore it is undisputed British sovereign territory.

Spanish position

The traditional Spanish position relies on claiming the right to its territorial integrity. According to the Spanish interpretation, as the UN is comprised by states, the concept of territorial integrity complements and constrains the right to self-determination, citing UN resolution 1514 (XV) from 1960 which says: Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. 1514 (XV)

During the sixties, the UN General Assembly passed two resolutions on the issue (2231 (XXI), "Question of Gibraltar"^[3] and 2353 (XXII), "Question of Gibraltar"^[4]). The latter states that any colonial situation which partially or completely destroys the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations and especially with paragraph 6 of Resolution 1514 (XV) of the General Assembly ... Invites the Governments of Spain and the United Kingdom of Great Britain and Northern Ireland to resume without delay the negotiations provided for in General Assembly Resolutions 2070 (XX) and 2231 (XXI), with a view to putting an end to the colonial situation in Gibraltar and to safeguarding the interests of the population.

From such a point of view, Gibraltarians would be mere settlers from Britain and other places and only their interests, not their wishes (as the right to self-determination would involve), need be safeguarded.

With the arrival of the democracy, such a "traditional" position seems to have been softened and aimed to some sort of temporal or permanent joint sovereignty (similar to the agreement announced between the Spanish and British governments in the Spring of 2002, which was eventually shelved after sustained and united opposition by the Gibraltarians).

The isthmus

Main article: Disputed status of the isthmus between Gibraltar and Spain

The territory of Gibraltar contains an 800-metre section of the isthmus that links the Rock with mainland Spain.

Spain does not acknowledge British sovereignty over Gibraltar beyond the fortified perimeter of the town as that of 1704. The United Kingdom claims that its title to the southern part of the isthmus is based on continuous possession over a long period.

As well as the airport, there are two substantial housing estates, a sports stadium, a secondary school, a marina and a beach on this land, which is an integral part of the territory of Gibraltar.

Territorial waters

The Treaty of Utrecht did not specify territorial waters, because such things simply did not exist at the time it was agreed.

By the first half of the 18th century the concept of the three-mile (6 km) wide sovereign territorial sea emerged, this was eventually adopted by most countries as the basis of marine jurisdiction, until the UN Convention on the Law of the Sea 1982, which entered into force in 1995, set a new standard of 12 nautical miles (22 km). Gibraltar's territorial waters currently extend up to 3 nautical miles (6 km), but could be extended if required — the UN Convention on the Law of the Sea set a standard of the latter distance for all of its signatories. Spain made a declaration which is refuted by the UK. Both ratified the treaty.

The British statement

"With regard to point 2 of the declaration made upon ratification of the Convention by the Government of Spain, the Government of the United Kingdom has no doubt about the sovereignty of the United Kingdom over Gibraltar, including its territorial waters. The Government of the United Kingdom, as the administering authority of Gibraltar, has extended the United Kingdom's accession to the Convention and ratification of the Agreement to Gibraltar. The Government of the United Kingdom, therefore, rejects as unfounded point 2 of the Spanish declaration."

The dispute over territorial waters, which was rekindled over the fishing dispute seems likely to become more important with the discovery of a British treasure ship, HMS Sussex, and the Black Swan Project controversy. Questions about the waters have previously been asked in the House of Commons, and answered as follows:

"Under international law, States are entitled, but not required, to extend their territorial sea up to a maximum breadth of 12 nautical miles. Where the coasts of two States are opposite or adjacent, the general rule is that neither is entitled, unless they agree otherwise, to extend its territorial sea beyond the median line. The UK Government considers that a limit of three nautical miles is sufficient in the case of Gibraltar."

The Spanish statement

"2. In ratifying the Convention, Spain wishes to make it known that this act cannot be construed as recognition of any rights or status regarding the maritime space of Gibraltar that are not included in article 10 of the Treaty of Utrecht of 13 July 1713 concluded between the Crowns of Spain and Great Britain. Furthermore, Spain does not consider that Resolution III of the Third United Nations Conference on the Law of the Sea is applicable to the colony of Gibraltar, which is subject to a process of decolonization in which only relevant resolutions adopted by the United Nations General Assembly are applicable."

1953: rekindling the dispute

In 1954, despite objections by Spain, Queen Elizabeth II visited Gibraltar in May. Generalisimo Francisco Franco had renewed Spanish claims to the Rock. Based on British National Archives files from 1953, Franco claimed that Spain had been promised the Rock in return for not attacking the territory during the Second World War. Churchill denied that he promised to give Gibraltar to Spain.

The British Foreign Office conducted a full review of their files to see whether Franco's claim had any foundation. A confidential memo called the Spanish communiqué "a flimsy and unconvincing document", and the Government put an end to the dispute by refusing to comment on the claims.

Economy

Main article: Economy of Gibraltar

Repeated stories in the Spanish media that Gibraltar banks are used for tax evasion and money laundering have been determined to be baseless after an inquiry by the House of Commons Foreign Affairs Select Committee. This found that Gibraltar has always complied with all international and EU requirements to prevent such activity.

We conclude that the series of allegations which Spain makes against Gibraltar appear almost wholly to be without substance. In many cases, it is not just the Government of Gibraltar but the British Government as well which is traduced. It is deeply regrettable that allegations are made that cannot be sustained by a basis in fact. If concrete evidence of wrong-doing were produced, the British Government should act promptly to deal with the problem. But so long as allegations are unsubstantiated, the British Government should continue to rebut them promptly and decisively.[5]

Similarly positive assessments have been made by international bodies such as the IMF. [6] [7] [8] [9]

According to the executive summary of a 2007 IMF Report:

Gibraltar has a well-regulated financial sector. The Gibraltar authorities are concerned with protecting the reputation and integrity of Gibraltar as a financial center, and are cognizant of the importance of adopting and applying international regulatory standards and best supervisory practices. Gibraltar has a good reputation internationally for cooperation and information sharing. [10]

Along with the Isle of Man and Cyprus, Gibraltar has been used as an international finance centre by the Russian conglomerate Yukos/Menatep.[11]

The Spanish Government has also accused Gibraltarian motorboats of engaging in tobacco smuggling. However, since 1996 there has been a law in Gibraltar controlling fast launches licencing their ownership and importation and prohibiting the entry of unlicenced craft into Gibraltar waters.

Referenda

In a 1967 referendum on sovereignty organised by the British government, Gibraltarians ignored Spanish pressure and 99.6% of voters voted to remain a British dependency.

More recently, in a second referendum on sovereignty held in November 2002 by the Gibraltar government, 98.5% of the voters rejected any proposal to share sovereignty between the UK and Spain.

The wording of the question being "Do you approve of the principle that Britain and Spain should share sovereignty over Gibraltar?" The result was a decisive 17,900 NO, 187 YES .

Recent disputes

2000 - An issue of contention was the repair of the nuclear powered submarine, HMS Tireless. The Government of Spain expressed its concern about the effective safety for the inhabitants of Gibraltar and those living in the Campo de Gibraltar the adjacent area in Spain—some 250,000 people (Press conference of the Spanish Foreign Secretary, Mr. Pique in London, of 2001 January 24).

The inhabitants of the area saw this repair as a precedent of future repair operations in Gibraltar rather than the one-off emergency the British government has claimed (as of December 2005 no other nuclear submarine has been repaired in Gibraltar). On the other hand, the Gibraltar Government accused Spain of using this incident as an excuse to justify its 300 year old sovereignty claim to Gibraltar. Despite many protests, the Gibraltar Government allowed the work to be done after employing its own experts to confirm it could be undertaken safely. The submarine was in Gibraltar for a year before leaving, during which the repair was completed without incident.

Subsequently Spanish politicians have complained about every nuclear submarine visit to Gibraltar, and have tried unsuccessfully to get a reassurance that this would stop totally. There have been no further protests against nuclear submarines in Gibraltar. Commenting, the Gibraltar Government said :

Nuclear submarine visits to Gibraltar are a matter for UK and Gibraltar. Visits for operational or recreational purposes are welcome by the Gibraltar Government ... To our knowledge, it is not the position of the present Spanish Government or any previous Spanish Government, that it is opposed to visits by nuclear submarines. Statement on visit of HMS Trenchant

2004 - A visit by The Princess Anne, Princess Royal in June 2004, the brief return of HMS Tireless in July 2004, together with the tercentenary celebrations of the capture of the Rock were subjects of complaint by the Spanish government.

In the months that predated the referendum called by the Gibraltar government on the joint sovereignty agreement (July - Aug 2004) disagreements could be categorised as:

• Control of the Military Installations. Spain wished to control the military installations of the territory, even in the event of joint sovereignty. This pretension was considered unacceptable by the British Ministry of Defence.
• The Referendum itself. Both the Spanish and British governments stated that the referendum had no legal effect, but it clearly indicated the democratically expressed will of the people of Gibraltar to “not be Spanish”. As the United Kingdom Government is committed to respect those wishes, the idea of a joint sovereignty deal has been abandoned.

2004 - A new round of talks on a tri-lateral basis were proposed in October 2004 to discuss regional co-operation. In February 2005 the first talks took place at a meeting held in Malaga and subsequently in Portugal and London.

This is the first sign of formal recognition of the Gibraltar Government, and has been generally welcomed. The main issues of the talks have been a new agreement on the airport, the pensions of the Spanish workers that worked in Gibraltar during the sixties, and the removal of Spanish restrictions on telecommunications.

Those issues were successfully resolved in September 2006, with the Cordoba Agreement. The process continues.

2007 A bulk carrier the New Flame ran aground south of Europa point, Gibraltar and broke up on the reef. Removing it remains a lengthy process which should be completed in June 2008 but generated accusations of pollution in Spain. The cargo was scrap metal and the vessels fuel was promptly drained from the ship. The Government was advised that the operation does not represent a material risk to the environment since the vessel was defuelled and only small, remnant amounts of fuel remain in the engines themselves

Parallel with this, the Government of Gibraltar has engaged in talks with Spain to resolve other disputes, setting aside the issue of sovereignty.

Sources

British sources

• ^ Hills, George (1974). Rock of Contention. A History of Gibraltar. London: Robert Hale. ISBN 0-7091-4352-4. George Hills was a BBC World Service broadcaster, Spanish Historian and Fellow of the Royal Historical Society. Although listed as a 'British' source, Hills supports the Spanish view of Gibraltar. He died in 2002. His research documents are now available at King's College, UCL as a separate collection.
• ^ Jackson, William (1990). The Rock of the Gibraltarians. A History of Gibraltar (2nd ed.). Grendon, Northamptonshire, UK: Gibraltar Books. ISBN 0-948466-14-6. General Sir William Jackson was Governor of Gibraltar between 1978 and 1982, a military Historian and former Chairman of the Friends of Gibraltar Heritage.

Spanish sources

• ^ Sepúlveda, Isidro (2004). Gibraltar. La razón y la fuerza (Gibraltar. The reason and the force). in Spanish. Madrid: Alianza Editorial. ISBN 84-206-4184-7. Chapter 2, "La lucha por Gibraltar" (The Struggle for Gibraltar) is available online (PDF). Isidro Sepúlveda Muñoz is a Contemporary History Professor in the UNED ("Universidad Nacional de Educación a Distancia"), the biggest Spanish university.
• ^ Cajal, Máximo (2003). Siglo XXI Editores (ed.). Ceuta, Melilla, Olivenza y Gibraltar. Donde termina España (Ceuta, Melilla, Olivenza y Gibraltar. Where Spain ends). In Spanish. Madrid. ISBN 84-323-1138-3.{{cite book}}: CS1 maint: location missing publisher (link) Máximo Cajal is a Spanish diplomatist, ambassador in different countries and currently the special representant of the Spanish Prime Minister, José Luis Rodríguez Zapatero, in the Alliance of Civilizations. He was the only survivor of the assault of the Embassy of Spain in Guatemala by the forces of the Guatemalan dictatorship in 1980.

Notes

1. ^ UN General Assembly (1966). "Resolution 2231(XXI). Question of Gibraltar" (PDF). Resolutions adopted by the General Assembly during its Twenty-First Session. United Nations. Retrieved 2005-12-16.
2. ^ UN General Assembly (1967). "Resolution 2353(XXII). Question of Gibraltar" (PDF). Resolutions adopted by the General Assembly during its Twenty-Second Session. United Nations. Retrieved 2005-12-16.
3. ^ Joe Bossano (1994). "The Fight for Self - Determination. Joe Bossano at the United Nations". Gibraltar... The unofficial homepage. Reference Documents about Gibraltar and its political struggles. Retrieved 2005-12-16.
4. ^ "First Iberia flight". gibnews.net. 2006. Retrieved 2007-03-10.

See also

• Disputed status of the Falkland Islands between the United Kingdom and Argentina
• Disputed status of Olivenza between Portugal and Spain.
• Sea of Japan naming dispute between Japan & North and South Korea.
• The Spanish enclaves of Ceuta and Melilla, disputed by Morocco.
• The History of Gibraltar

External links

• "Gibraltar: The Legal Issues" academic paper by J. E. S. Fawcett in International Affairs (Royal Institute of International Affairs), Vol. 43, No. 2 (Apr., 1967)
• BBC – Files reveal 1953 Gibraltar row
• Map of Gibraltar and the isthmus (PDF file). In green the area that according to Spain was not ceded by the Treaty of Utrecht.
• A legal opinion on the issue of territorial waters, by a Gibraltar lawyer with an official map