Status of Gibraltar

See also History of Gibraltar

The disputed status of Gibraltar arises from the United Kingdom and Gibraltarians holding opposed views to Spain on the issue of the Gibraltar's sovereignty, coupled with the United Kingdom Government and the Gibraltarian people also not always agreeing on the approach to be taken to the question. The dispute started in 1953 after a visit by Her Majesty Queen Elizabeth II to the Rock, after which the Spanish dictator, Generalissimo Francisco Franco re-awakened long dormant Spanish claims to the territory. Franco claimed that British prime minister Winston Churchill promised Spain the territory in return for not invading it during the Second World War, when Britain and her Allies faced Germany and Italy, and Spain, despite being ruled by a right-wing dictator, as Italy and Germany were, remained neutral. Recent requests for the release of information under Britain's Freedom of Information Act have failed to yield support for claims that Churchill made such a promise.

Spain insists that the question of sovereignty over Gibraltar is a bilateral matter between the United Kingdom and Spain and does not recognise the Gibraltarians' elected Government or right to participate in joint discussions with it. Since it has become clear that the proposal of joint sovereignty is going nowhere, particularly after rejection in a referendum amongst Gibraltar's residents (99 per cent voting "No" at an 88 per cent turnout), Spain has finally indicated it is prepared to listen to the views of the people most affected. However, as of November 2004 the Gibraltarians consider that nothing of a positive nature has been seen in this 'improvement in relations'.

The Rock's two main political parties, the Gibraltar Social-Democrats (GSD) and the Gibraltar Socialist Labour Party (GSLP) are opposed to any transfer of sovereignty to Spain. Although Gibraltar is run on democratic principles, with freedom of speech, freedom of political movements and freedom of the press well-established, no political party or pressure group in Gibraltar supports union with Spain, although an overwhelming majority of the population holds the view that better relations are desirable, and that the Spanish restrictions on telecommunications, cruise ships, aircraft, etc. must be removed.

Spain continues to claim that the territory is rightfully its own and wishes to assume sole sovereignty. The British Government, whilst stating that no change would take place without the consent of the people of Gibraltar, briefly explored the possibility of joint sovereignty between the United Kingdom and Spain in the early 2000s, but has, in the wake of Gibraltarian opposition, back-tracked from this position.

The Capture of Gibraltar and the Treaty of Utrecht

An Anglo-Dutch force led by Sir George Rooke seized the Rock in 1704. The territory was 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 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."

None the less, 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. Another condition of the cession is that "no leave shall be given under any pretence whatsoever, either to Jews or Moors, to reside or have their dwellings in the said town of Gibraltar." This restriction was quickly ignored and for many years both Jews and Arabs have lived peacefully in Gibraltar. 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").

As the UK and Spain are both members of the European Union, which is committed to free movement of goods and services, the UK government and Gibraltarians claim that this supersedes any 'restrictions' contemplated in 1704.

Both sides positions

The traditional Spanish position relies in claiming the right to it's territorial integrity. They argue such principle complements the right to self-determination stated by the UN resolution 1514 (XV). According to its section 6, 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. During the sixties, when Britain had little support in the organisation, the UN General Assembly passed UN resolutions 2231 (XXI) ("Question of Gibraltar") and 2353 (XXII) ("Question of Gibraltar"). The latter states that Considering 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 only their interests, not their wishes (as the right to self-determination would involve), should 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 UK government and Gibraltarians state that the Spanish claim is baseless, pointing to the right to self-determination of all peoples, guaranteed by the UN, according to the resolution 1514 (XV), of 14 December 1960, containing the Declaration on the granting of independence to colonial countries and people. 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). This is also enshrined in the UN Charter. 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.

Furthermore, any additional right that Spain could claim by virtue of the "reversionary" clause contained in the Treaty of Utrecht, the UK government and Gibraltarians point out that 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) overrules and anulls such a "reversionary clause".

Finally, they point 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 pointed out that since Gibraltar is a colony, and therefore by definition not an integral part of any other state, Spain's territorial integrity cannot be affected by anything that occurs in Gibraltar, and 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].

The isthmus

Gibraltar nowadays contains a 800-metre section of the isthmus that links the territory with Spain.

One of the sources of the dispute is the lack of an exact definition of what had been actually ceded to Great Britain. The Treaty of Utrecht did not include any map or specific description of the ceded elements, so that the article X is subject to different interpretations from each side. According to the Article X of the Treaty of Utrecht, dominion is ceded over the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging (Article X of the Treaty of Utrecht).

Spain does not acknowledge British sovereignty over Gibraltar beyond what their a literal interpretation reflects, and considers that forts refer to the fortified perimeter of the town. Therefore, the Treaty would not have ceded any part of the isthmus. Spain considers that such an area was occupied by the UK since the 19th century (1815), and such occupation did not grant UK sovereignty over it, according to International Law. For the same reason, British sovereignty is not acknowledged by Spain, considering itself instead to be owner of the territory (see map). In December 2, 1987, in a joint British-Spanish declaration about the use of the airport, as well as in several EU acts, the UK has acknowledged that Spain disputes the sovereignity of the isthmus (The ... arrangements ... are understood to be without prejudice to the respective legal positions of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated. Joint Declaration on Airport (of 2 December 1987)), althought they reject the basis for that dispute.

The UK and Gibraltar governments reject this argument in it's entirety. They point out that as "Utrecht" ceded the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging and there were such "fortifications and forts" along the line of the current frontier (Devil's Tower, Torre Del Tuerto, plus other Sentry posts) that this area was included in the cession. Furthermore, they argue, International practise at the time was that all territorial cessions carried an extended area equivalent to the length of two cannon shots. This was further established under the Treaty of Seville 1729. In any case UK further bases it's claim upon established legal precedents that grant property rights over an area which is continually occupied and made sole use of, for an extended period. The Spanish Government has recently recognised (in the tripartite forum) that the reality of Gibraltar must be accepted as a single entity, and that there will be no gain from attempting to separate their claims into two distinct areas.

Maps [2], [3] and [4] from Global Geografia (in Italian) show the evolution of the British occupation of the isthmus as well as the location of the two items that, according to the British government, were part of the forts ceded in the Treaty of Utrecht (Torre del Diablo, Devil's Tower, and Molino).

Territorial waters

The Treaty of Utrecht did not specify territorial waters, as like so many things the concept had not been developed at the time.

By the first half of the 18th century the concept of the three-mile (5 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. However, the positions of Spain and the UK are opposite on this issue:

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."

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."

1953: rekindling the dispute

In 1953, after HM The Queen visited Gibraltar, Generalissimo Francisco Franco renewed Spanish claims to the Rock. Based on British National Archives files dating back to 1953, it seems that Franco believed Spain had been promised the Rock in return for not attacking the territory during the Second World War. During the war, the civilian population of Gibraltar was evacuated, and the territory turned into a military base, with an airport being built over the racecourse. Gibraltar was a key supply line and controlled the straits of Gibraltar at the western end of the Mediterranean.

The British civil service conducted a full review of their files to see whether Franco's claim had any foundation, and none was found.

Economy

Repeated stories in the Spanish media that Gibraltar banks are used for tax evasion and money laundering have been found baseless by an inquiry by the House of Commons Foreign Affairs Committee, as Gibraltar complies with all international and EU requirements to prevent such activity.

The Spanish Government has also accused Gibraltarian motorboats of helping in tobacco smuggling. However, there is a law against fast launches making it illegal to own them locally, or even to bring them into Gibraltar waters.

Referenda

In a 1967 referendum 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 held in November 2002 by the Gibraltar government, 98% 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?" [5]; result: 17,900 NO, 187 YES [6]).

However, the Gibraltarians are seeking a more modern status and relationship with the United Kingdom reflecting the present level of self-government. A new constitution has been submitted for approval by the UK government. This proposal, called by the Gibraltarians a 'modernisation of the consititution', would convert Gibraltar to a more Channel Islands-like relationship with the UK, rather than the present colonial status. [7]

Recent disputes

Another issue of contention was the repair of the nuclear submarine, HMS Tireless. Spain has expressed its concern about the effective safety for the inhabitants of Gibraltar and those living in its hinterland -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. The Gibraltar government has accussed Spain of using this incident as an excuse to go on reclaiming the sovereignty over Gibraltar. Despite many protests, the Gibraltar Government allowed the work to be done after employing its own experts to confirm it was safe. The submarine was in Gibraltar for a year before leaving, during which the repair was successfully completed without incident.

A visit by HRH The Princess Royal in June 2004, the brief return of HMS Tireless in July 2004, together with a visit by Geoff Hoon, the UK Defence Secretary, for the tercentenary celebrations of the capture of the Rock were subjects of complaint by the Spanish government.

Recent (July - Aug 2004) disagreements can be categorised as:

• The Referendum Issue. Both the Spanish and British governments have stated a recent referendum has no legal effect, but it clearly indicates the will of the people of Gibraltar to “not be Spanish”, which Britain has agreed to abide by.
• Control of the Military Installations. Spain wishes to control the military installations of the territory, even in the event of joint sovereignty.

A new round of negotiations has been proposed (October 2004) to discuss regional co-operation.

See also

• Disputed status of the Falkland Islands between the United Kingdom and Argentina
• Disputed status of Olivenza between Portugal and Spain

External reference

• BBC – Files reveal 1953 Gibraltar row
• Map of Gibraltar and the isthmus according to the Spanish government (PDF file). In green the area that according to Spain was not ceded by the Treaty of Utrecht.