The disputed status of Gibraltar exists because of a three hundred year old claim by Spain which is rejected by the United Kingdom and the Gibraltarians.

Spain lost control of Gibraltar in 1704 and ceded the territory under article X of the Treaty of Utrecht in perpetuity to the British Crown in 1713.

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. However, an overwhelming majority of the population holds the view that better relations are desirable, and that the Spanish restrictions on telecommunications, cruise ships, aircraft, participation in sport etc. must be removed.

Despite this, Spain continues to claim sovereignty of Gibraltar.

Previous Spanish governments 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 underlay the UN resolutions driven by Spain on the decolonization of Gibraltar in the 1960s, which focused on the "interests" and not the "wishes" of the Gibraltarians. However, the strategy of ignoring the Gibraltar people has proven to be a dead-end for Spain.

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 to reject these proposals by the Government and people of Gibraltar, culminating in a referendum amongst Gibraltar's residents (99 per cent voting "No" at an 88 per cent turnout). 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 the participation of the Gibraltar government. Such movement was qualified by Spanish right-wing parties as a surrender. At the same time Gibraltarians consider that nothing of a positive nature has been seen in this "improvement in relations".

The Capture of Gibraltar and the Treaty of Utrecht

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An Anglo-Dutch force led by Sir George Rooke seized the Rock 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 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."

Nonetheless, 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

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The traditional Spanish position relies in claiming the right to its territorial integrity. According to such an interpretation, as the UN is comprised by states, the concept of territorial integrity complements and constraints the right to self-determination, as stated by the UN itself in its resolution 1514 (XV), of 14 December 1960, containing the Declaration on the Granting of Independence to Colonial Countries and Peoples. 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, the UN General Assembly passed two resolutions on the issue (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 other places 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 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 [http://www.un.org/documents/ga/res/15/ares15.htm 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.

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 annuls 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, as 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 .

The isthmus

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

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, the sports stadium and a school built on this land, which is considered an integral part of the territory of Gibraltar.

Territorial Waters

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The Treaty of Utrecht did not specify territorial waters, because like many other 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."

The dispute over territorial waters, which was rekindled over the fishing dispute seems likely to become more important with the discovery of a sunken British treasure ship in the area. Questions have 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."

1953: rekindling the dispute

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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

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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

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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, 98.5% 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?" result: 17,900 NO, 187 YES [http://www.electionguide.org/resultsum/gibraltar_sovereigntyref_02.htm).

For their part 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, and there are ongoing talks. This proposal, called by the Gibraltarians a 'modernisation of the constitution', would convert Gibraltar to a more Channel Islands-like relationship with the UK, rather than the present colonial status. ^*

Recent disputes

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A more recent 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

A visit by HRH The 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.

A new round of negotiations was proposed (October 2004) to discuss regional co-operation. In February 2005, the first talks took place on a tri-lateral basis 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 seems to a new agreement on the airport and the pensions of the Spanish workers that worked in Gibraltar during the sixties. As at January 2006, there have been no tangible results, including no results on the technical issues of telephones, air and marine communications.

In February 2006, the talks would seem to have stalled with no agreement between the three parties.

Spanish Restrictions

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Despite both Gibraltar and Spain being members of the EU, Spain continues to place restrictions on communications with Gibraltar, which affect telecommunications (see Gibraltar telecom dispute) and blocks any EU or international agreements, like the Hague Convention 1996 that mention the Gibraltar Airport. Under the Lisbon agreement of 1980:^*

Both Governments have reached agreement on the re-establishment of direct communications in the region. The Spanish Government has decided to suspend the application of the measures at present in force.

This was to include re-instatement of a ferry service from Algeciras, which (like normalisation of telecommunications) has never happened.

Sources

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British sources

Gibraltar sources

Spanish sources

Notes

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See also

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• 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 reference

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• "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

Politics of Gibraltar | British-Spanish relations

Reclamación española de Gibraltar