Just a war of words over Gibraltar

This week’s European territorial dispute is well away from the usual hotspots in the Balkans, even though it’s an issue of long standing. Britain and Spain have been trading barbs over the territory of Gibraltar, British for more than three hundred years but still a grievance from the Spanish point of view.

The immediate background is the creation recently of an artificial reef by the local Gibraltar government; the Spanish say that it is in a conservation zone and will disrupt fishing. But it’s inseparable from the fact that this is a very uncomfortable time to be a Spanish government, and prime minister Mariano Rajoy is desperately in need of a distraction from his economic and political troubles.

So the dispute has escalated, with Spain instituting additional checks at the Gibraltan border, which have led to serious delays. As is the way with these things, Spain denies they are a retaliation and says they are just designed to control smuggling. Britain has protested that Spain is violating the European Union’s guarantees of free movement – and on that aspect of the case at least, the British appear to have the law on their side.

As to the underlying dispute over sovereignty, things are a bit less clear. (The BBC has a good summary of the competing claims.) The Gibraltans overwhelmingly want to remain British, so if self-determination is key then Spain doesn’t really have a case. In that respect it is a similar position to that of the Falkland Islands, so it’s perhaps not surprising that Spain has aligned itself to some extent with Argentina.

But Gibraltar’s geographic position is rather different. The Falklands sit out in the South Atlantic Ocean; close to Argentina, but not geographically part of it. No-one, however, would think of Gibraltar as a separate territory if it didn’t have a border drawn around it. In purely geographic terms it is self-evidently part of Spain, so Spain’s argument from territorial integrity is much stronger than Argentina’s.

Unfortunately for the Spanish government, territorial integrity (or “national unity”, as it’s sometimes called) is a risky ground for it to stand on, since it holds on to similar enclaves on the other side of the straits, notably Ceuta and Melilla. If Spain is entitled to claim Gibraltar, then Morocco has an equally strong claim on Ceuta and Melilla.

Moreover, Gibraltar has what the Falklands lack, namely an explicit renunciation of claims by the neighboring power. In 1713, in the Treaty of Utrecht – nine years after the British had seized the peninsula during the War of the Spanish Succession – Spain ceded it “for ever, without any exception or impediment whatsoever.”

Subsequent attempts in the eighteenth century to regain it, as well as more peaceful efforts since the mid-twentieth century, demonstrate that Spain no longer considers itself bound by that renunciation. And these days we no longer recognise territorial claims based on conquest, even if the conquest is then ratified by the defeated power. Nonetheless, three hundred years is a long time, and if questions settled for that long are to be reopened there are very few countries that would be unaffected.

It’s also worth thinking about the other very big difference between Gibraltar and the Falklands. Britain and Argentina actually went to war in 1982, but war between Britain and Spain has for much longer than that been unthinkable. Despite this week’s provocations, it still is. And that’s despite the fact that Gibraltar is much more strategically important than the Falklands are ever likely to be.

For all their mutual indignation, Britain and Spain remain allies, partners in NATO, the EU and a web of other relationships. Developed democracies simply don’t go to war over issues like this: either they compromise, or they learn to just live with their differences.

Perhaps one day some sort of agreed solution will be found to the Gibraltar question, but if so it is likely to be a long way off. In due course, however, both Britain and Spain will realise that the state of tension isn’t getting them anywhere and will find other things to worry about.

5 thoughts on “Just a war of words over Gibraltar

  1. Not quite sure what the author means by mentioning that ‘In purely geographic terms it is self-evidently part of Spain, so Spain’s argument from territorial integrity is much stronger than Argentina’s [over the Falklands]. There is no basis in international law that a neighbouring territory is ‘part’ of a neighbouring country due to geography. If there was, then Lesotho would be part of South Africa, Gambia would be part of Senegal and Timor-Leste would be part of Indonesia. The UN made it clear in 1960 that overseas dependencies have a right to self-determination. There is no minimum population or size required. If Gibraltar exercised its lawful right to self-determination, it would have a bigger population than UN member states Nauru, Tuvalu and Palau, and it would be bigger in size than UN member state Monaco. The current status is that Gibraltarians choose not to exercise their right to independence, but have determined that they prefer to remain a British dependency.

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  2. The Spaniards missed their best chance in 1940, when Franco would not allow German troops to traverse Spain to attack Gibraltar. Its fall (which would have been inevitable) would have changed the whole dynamics of the Meditteranean war.

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  3. Richard: thanks for that. I’m inclined to agree with you, but I don’t think it’s quite so clear-cut. What makes Gibraltar different from Lesotho, East Timor and the rest is that it’s so obviously a foreign settlement: the residents are the descendants of those who were deliberately planted there by a foreign occupying power. In that context, I think the argument from territorial integrity has some force. If it’s defeated (and I think it is), it’s not just by self-determination but by the explicit Spanish renunciation and the long lapse of time.

    MPJ: Yes, it certainly would have changed the dynamics in the Mediterranean, but it would have posed major risks for Franco – he would have effectively become a belligerent and opened himself to attack by the allies. In the event that they still won (as they presumably would have) he might have lost not just Gibraltar but everything, and probably been tried as a war criminal to boot. Cautious neutrality ended up serving him well.

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  4. Possibly the closest analog to Gibraltar in recent times might have been Hong Kong (exluding the ‘New Territories’, which had been leased by Britain for 99 years). Hong Kong was ceded to Britain following military defeat some 150 years previously, it was geographically part of China and the local residents would probably have preferred the status quo to continue, given the choice, although probably not as overwhelmingly so as those of Gibraltar. Also, like Spain, China regarded the British enclave as an affront to to their national pride. Maybe some sort of ‘special status’ for Gibraltar which recognises both Spanish sovereignty and local autonomy would be the way to go, with appropriate guarantees backed by the EU and NATO.

    Spanish sensitivities are understandable – rather like those of the British would be to Spanish rule over the Isle of Wight, for example.

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  5. I need to clear some legal and history facts about your article of the Gilbraltar

    The UN continues to list Gibraltar as a territory that needs to be decolonised by the UK.

    Gibraltar’s current colonial situation is complicated by three factors. First, although Britain seized Gibraltar by invasion/war in 1704 during the Spanish Wars of Succession and it was awarded in perpetuity to Britain under Article X of the Treaty of Utrecht signed in 1713, Spain has always maintained its claim to the restoration of its sovereignty over the territory; it is therefore a contested territory and the UN has been constrained to take this into account when considering the decolonization process.

    Unlike Gibraltar, Ceuta and Melilla are not considered to be colonial enclaves by the UN. They pre-exist the creation of the Moroccan State – they were Spanish hundreds of years before Morocco existed. In contrast Gibraltar was colonised by the UK while it was part of the Kingdom of Spain.

    Second, the Treaty contains a reversionary clause providing that if Britain should ever decide to relinquish the sovereignty of Gibraltar, Spain would be entitled to reclaim it before any other option were considered; both Britain and Spain accept that this means ruling out independence for Gibraltar for as long as Spain retains its claim. This is the sticking point that Spain has a reserve right and Gibraltar does not have a right to self determination.

    Third, the town and the Rock of Gibraltar to the Iberian Peninsula, and on which the airport has been constructed and now the artifcle reef , is not covered by the Treaty of Utrecht and its sovereignty is therefore the subject of a separate dispute between Britain and Spain.

    The UN Special Committee on Decolonization reiterated as recently as June 2012 that ending the ‘special and particular’ colonial situation relating to the British colony of Gibraltar required a peaceful, negotiated settlement of the SOVEREIGNTY dispute between the UK and the Kingdom of Spain. The term ‘special and particular’ colonial situation refers to the fact that the current occupants of Gibraltar are not a subject or subdued population by a colonial power, which would otherwise have a right to self-determination, but a population transplanted by the UK colonising power which has no such right under international law.

    This exception to the right of self-determination has been confirmed by the International Court of Justice as recently as 2004 when it ruled that ‘…under the terms of Article 49, paragraph 6, of the Fourth Geneva Convention … an Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. … Such policy and practices “have no legal validity” and constitute a “flagrant violation” of the Convention and are in breach of international law.’ (see International Court of Justice Advisory The article is nothing more than a thinly disguised attempt to obfuscate the inconvenient fact that the UN continues to list Gibraltar as a territory that needs to be decolonised by the UK. The author’s list of irrelevant, exaggerated, and inaccurate claims about Spain also highlight the author’s rank hypocrisy. Why not mention that as recently as the early 1900′s the British were hunting the Australian Aborigines for sport? Is this just another inconvenient fact for the author? The author would be better served by getting off his ‘high horse’ and sticking to the issues at hand.
    population into the territory it occupies. … Such policy and practices “have no legal validity” and constitute a “flagrant violation” of the Convention and are in breach of international law.’ (see International Court of Justice Advisory Opinion of 9 July 2004).

    It doesn’t matter how long a colony has been occupied. Under international law there are territorial limitations to the right of self-determination for transplanted populations living in colonial enclaves where a pre-colonial claim of sovereignty exists. This is the case with Gibraltar.

    A coloniser cannot legally disrupt the territorial integrity of another State by implanting its own population unto the territory it is colonising. In cases such as these, the inhabitants of the territory have a right to have their ‘interests’ considered but they have no right to unilaterally determine the nationality of the land they live in.

    The UN Special Committee on Decolonization reiterated as recently as June 2012 that ending the ‘special and particular’ colonial situation relating to the British colony of Gibraltar required a peaceful, negotiated settlement of the SOVEREIGNTY dispute between the UK and the Kingdom of Spain. The term ‘special and particular’ colonial situation refers to the fact that the current occupants of Gibraltar are not a subject or subdued population by a colonial power, which would otherwise have a right to self-determination, but a population transplanted by the UK colonising power which has no such right under international law.

    This exception to the right of self-determination has been confirmed by the International Court of Justice as recently as 2004 when it ruled that ‘…under the terms of Article 49, paragraph 6, of the Fourth Geneva Convention … an Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. … Such policy and practices “have no legal validity” and constitute a “flagrant violation” of the Convention and are in breach of international law.’ (see International Court of Justice Advisory Opinion of 9 July 2004).

    If you’re interested in the facts on the right of self-determination in international law then you should have a look at the following reference by an eminent British international lawyer, and Cambridge University Professor, as just one authority which nicely sets out the relevant international law principles: James Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979) at 377-85.

    Even if Spain were to remove its claim, the constitutional status of Gibraltar does not meet the standard UN criteria for de-listing (either through independence or free association or integration with the former administering power, with the latter having no reserve powers to legislate). The issue of reserve powers is the key sticking point here.

    This is because the British Governor of Gibraltar continues to exercise power as an administering authority. Gibraltar’s argument that the UN misunderstands the role of the Governor, who acts on behalf of the Queen as Queen of Gibraltar, not on her behalf as Queen of the United Kingdom or on behalf of the UK Government, is not surprisingly, not seen as persuasive by the UN.

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