|
The Fight for Self - Determination Joe Bossano
|
A. Brief description of Gibraltar and its people.
1. Gibraltar is situated at the southern-most tip of the
Iberian peninsula. It is just over six square kilometres in area
and has a population of around 30,000 persons. The indigenous
Gibraltarian population itself numbers some 20,000 persons.
2. Gibraltar has been a British colony ever since it was taken
by Britain in 1704. In 1713, Britain and Spain signed the Treaty
of Utrecht which ceded Gibraltar to Britain in perpetuity.
3. Throughout the 18th and 19th centuries, a civilian
population grew from a mix of nationalities and religions.
4. It was in the earlier part of this century that the local
population first sought and exercised political participation in
the affairs of the country. It was during the post-war era that
the Gibraltarians strongly reasserted their identity as a people
in their struggle for a self government and self determination.
The outbreak of the Second World War resulted in the evacuation
of the civilian population to London, Northern Ireland, Jamaica
and Madeira to allow for the fortification of the military base.
The ending of the War saw the emergence of the Association for
the Advancement of Civil Rights, initially, to ensure the
repatriation of the population back to their homeland.
Repatriation began in 1944 and was completed several years later
due to accommodation problems. This was followed by the demand
for greater selfgovernment. The City Council was reconstituted
in 1945 for the first time with an elected majority.
The Governor's monopoly of legislative authority ended in 1950 with
the formation of a Legislative Council. Under the 1969
Constitution, both the Legislative and City Councils were merged
to form the House of Assembly. Gibraltar obtained a large
measure of self-government under its new Constitution. All
domestic affairs became the responsibility of the elected
Gibraltar Government. The United Kingdom retained responsibility
for defence, internal security and external affairs.
5. The evacuation, repatriation and resettlement of the people
of Gibraltar marked an important turning point in the struggle
for increasing self government. The isolation experienced
throughout the 1960s, 1970s and part of the 1980s with the
imposition of land, sea and air restrictions by Spain forged the
Gibraltarians' sense of identity as a people. There has been no
clearer nor unequivocal manifestation of this than the massive
16,000 strong turnout of the population to celebrate Gibraltar's
first ever National Day. The call for self-determination is now
unstoppable. (see Annex 1)
B. The economy in brief.
6. Gibraltar's GDP was around GBP 300m in 1992, or GBP 10,200 per
capita. The main sectors of the economy are banking and
financial services, tourism, ship repairing, shipping, port
services and trade generally. The military sector which up to
the earlier part of the 1980s accounted for around 45% of GDP and
35% of employment has declined sharply and now accounts for just
under 10%. (see Annex 2). This contribution is expected to fall
further to below 5% within the next few years.
Since 1988, Gibraltar has received no capital development aid form the UK.
The withdrawal of British military forces has required major
economic structural adjustment. The Gibraltar Government has
made a substantial investment in upgrading the infrastructure and
communications to provide the necessary base for economic
expansion and diversification. Being a member of the European
Union since 1973, Gibraltar has geared its strategy towards
gaining competive access into the liberalised markets of the
Union.
C. The Anglo/Spanish dispute over Gibraltar.
7. Although Spain ceded Gibraltar to Britain in perpetuity in
1713, it has historically pursued its claim to recover the
territory. Gibraltar has suffered many sieges throughout its
history. In the 1960s, Spain launched a diplomatic offensive
before the United Nations in an attempt to secure international
backing for its claim. In 1969, as part of its campaign, Spain
closed its land frontier with Gibraltar and severed all other
communications by sea and air. Telephone and postal links were
also affected. This last siege lasted 16 years.
8. In 1984, Spain and the United Kingdom signed the Brussels
Agreement which aimed to resolve the outstanding differences
between the two countries over Gibraltar, including the issues of
sovereignty. The word "issues" appeared in the plural to
emphasise two distinct sovereignty claims; the first being the
return of the "City and Fortress" ceded under Utrecht and the
second being the return of a small ithsmus separating Gibraltar
from mainland Spain no more than a square kilometre in area and
designated as the British half of neutral ground after Utrecht.
9. Under the Brussels Agreement - which is referred to in the
annual UN resolutions on Gibraltar submitted by the Fourth
Committee - the United Kingdom and Spain hold talks over
Gibraltar. The Gibraltar Government is invited to participate,
but only as part of the United Kingdom delegation. The Brussels
Agreement is seriously deficient in that it is a framework for
discussion of the differences which the United Kingdom and Spain
may have over Gibraltar. It does not provide for discussion of
the differences which Gibraltar, in its own right, may have with
Spain, indeed with the United Kingdom, or with both. The
Gibraltarians are also expected to form part of the delegation of
the colonising power from which it seeks in its own
decolonisation. This bilateral agreement is therefore a denial
of the right of the people of the territory to negotiate its
future with its own voice.
It also is an affront to the international principles which the
United Nations has set in pursuance of the rights of all peoples
to self-determination and to the exercise of their fundamental
human rights.
10. As a consequence of the Brussels Agreement, Spain reopened
its border with Gibraltar in 1985. Spain also introduced a law
to restore sea ferry services between Gibraltar and Spain; to
date no such service has been authorised.
Following Spain's
accession to the European Union in 1986, there was a logical
expectation that common membership of the European Union among
the United Kingdom, Spain and Gibraltar would consolidate the
prospects for a resolution of the dispute over Gibraltar.
Instead, in line with its publicly declared policy following
entry into the European Union, Spain has used its bargaining
position within the European Union to veto, block or constrain
the application of European Community rights and benefits to
Gibraltar to the detriment of Gibraltar's attempts to develop an
alternative economy in the wake of the United Kingdom's military
withdrawal.
One case in point is the suspension of Gibraltar
airport since 1987 from the application of European Union air
liberalisation measures. That suspension was supported by the
United Kingdom, the administering power, in the face of a
threatened Spanish veto which would have blocked the measures
from applying at all anywhere in the Union, including the UK.
The suspension will be lifted only if Gibraltar agrees to share
route authorisation for flights operating to, or from, Gibraltar
airport by implementing a parallel bilateral airport agreement
between the two powers drawn up under the umbrella terms of the
Brussels Agreement. As a result, the Spanish Government
continues to block the introduction of air services between
Gibraltar and Spain.
At present, there are only direct flights
between Gibraltar and the United Kingdom and Gibraltar and
Morocco.
D. Gibraltar: The case for self-determination.
11. Both the United Kingdom and Spain have argued against full
recognition of the right of the people of Gibraltar to self-
determination.
12. The argument used by the administering power has been
exclusively the international obligation that the United Kingdom
has under Article 10 of the Treaty of Utrecht of 1713 to give
first choice of any change in sovereignty to the Kingdom of
Spain. International law and international opinion, as it has
developed in the post-war era, clearly reject the validity of
this argument i.e.
The International Court of Justice observed in 1971 that the
development of international law in regard to non self-governing
territories as enshrined in the Charter of the United Nations
made the principle of self determination applicable to all of
them.
The Court also held in 1971 that the action of peoples engaged in
a determined struggle constituted law, by way of general
practice, within the meaning of Article 38(1) of the Statute of
the Court and that this struggle continued for the purpose of
asserting the right of self-determination.
The Court again held in 1975 that the principle of self-
determination applied to all non self-governing territories.
The paramountcy of the principle of self-determination over
bilateral agreements is unequivocably spelt out in Resolution
2734 (XXV), paragraph 3, whereby the General Assembly solemnly
affirms that in the event of a conflict between the obligations
of the members of the United Nations under the Charter and their
obligations under any other international agreement, their
obligations under the Charter shall prevail.
The principle of self-determination therefore overrides any
bilateral agreement or Treaty - in the case of Gibraltar, a
Treaty as outdated as that signed in Utrecht in 1713.
13. The argument used by the Kingdom of Spain is based on the
caveat in the UN resolutions on decolonisation that the application
of the right of self-determination to colonial territories
should not be conducive to breaking up the territorial integrity
of an existing member state of the United Nations. Spain argues
that it is according to this doctrine of the General Assembly
that the decolonisation of Gibraltar is not a case of self-
determination but of the restoration of the territorial integrity
of Spain. This interpretation is flawed in history, in reason
and in practice i.e.
The doctrine of the UN is that self-deterimation should not be
justification for minorities to secede from within existing
sovereign and independent states. The restoration of the
territorial integrity of Spain as it was in 1703 is not the
doctrine of the United Nations.
Every colonial territory that is a member of the United Nations
after achieving self-determination and exercising the right has
created a situation which was different to that which existed
prior to colonialism. If Spain's interpretation were correct,
then no colony could have exercised the right of self-
determination other than by restoring the position that existed
before the imperial powers seized their parts of the world.
Gibraltar has been British territory for longer than it has been
Spanish territory. It was part of Spain between 1309 and 1333
and 1462 and 1703, a total of 265 years. It has been British
between 1704 and 1994 a total of 290 years.
Gibraltar would not fragment Spain by exercising its right to
self-determination. The United Kingdom fragmented Spain in 1704.
That fragmentation resulted in the removal of 6 square kilometres
out of Spain's national territory of over 500,000 square
kilometres.
14. Gibraltar recognises that the exercise of its right to self-
determination may be constrained and may require a process of
dialogue with the United Kingdom and with the Kingdom of Spain.
But it cannot be denied the right i.e.
UN resolution 1514(XV) (2) states that 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;
On the 16 October 1964, the Special Committee concluded that the
provisions of the declaration on the granting of independence to
colonial countries and peoples was fully applicable to Gibraltar.
The United Kingdom representative before the Special Committee
stated on the 16th October 1964:
"My Government's policy will continue to conform with the
principle of self-determination. My Government does not accept
that there is any conflict between the provisions of the Treaty
of Utrecht and the application of the principle of self-
determination to the people of Gibraltar".
In its booklet "Objective Justice" (pages 30/31), the UN Special
Committee drew attention to the right of self-determination of
the remaining eighteen territories for whose welfare the
Committee is responsible. Gibraltar is one of the eighteen
territories without qualification.
The principles embodied in the UN Charter and the declaration on
decolonisation are not contingent on size, population or
resources in the exercise of the right to self-determination.
Resolution 2625(XXV) of the 24 October 1970 extended a fourth
mode for decolonisation requiring that it should, as with other
modes, be the emergence of a political status freely determined
by the people of the territory. It also states that the
territory of a colony or other non self-governing territory has,
under the Charter, a status separate and distinct from the
territory of the State administering it and that such status
shall exist until the people of the colony have exercised their
right of self-determination in accordance with the Charter.
Resolution 2734 (XXV) of the 16 December 1970 made it clear that
in the event of a conflict between the obligation of Member
States under the Charter and their obligations under any other
international agreement, their obligations under the Charter
should prevail.
Article 1 of the 1976 International Covenant on Economic. Social
and Cultural Rights states: "All peoples have the right of self-
determination, by virtue of that right they freely determine
their political status and pursue their economic, social and
cultural development".
That Covenant was extended in 1976 to the non self-governing
territories, including Gibraltar, without qualification, and was
ratified both by the United Kingdom and Spain.
All the UN Resolutions on decolonisation declare that any form orthreat of forcible action which may deprive peoples of their
right to self-determination and of their right to determine
freely their political status and pursue their economic, social
and cultural development constitute a violation of the Charter of
the United Nations.
In their annual statements on decolonisation to the UN Fourth
Committee on the 19 October 1992 and the 14 October 1993, the
Member States of the European Union (which includes the United
Kingdom and Spain) stated that the European Community and its
Member States confirm their support for the principle of self-
determination and for actions consistent with the Charter aimed
at eliminating colonialism, irrespective of the geographic
location and population size of the remaining non self-governing
territories.
15. The present deadlock cannot be broken by simply reaffirming
annually that Gibraltar should be decolonised on the basis of the
administering power talking to the neighbouring State about its
sovereignty claim.
This is because, on the one hand, Spain
interprets this as meaning support from the international
community for its view that the wishes of the people of Gibraltar
and their right to self-determination is irrelevant and that it
is merely a question of returning six square kilometres of land
seized in 1704, during the Wars of Spanish Succession. On the
other hand, the UK believes that the resolution, whilst requiring
it to discuss with Spain Gibraltar's decolonisation does not
impose an obligation to breach the solemn undertaking in the
Gibraltar Constitution not to allow the territory to pass under
the sovereignty of another State against the freely and
democratically expressed wishes of the people of Gibraltar.
16. The only way the administering power and the neighbouring
country are going to be persuaded that a satisfactory resolution
of the dispute can be entertained is by making it clear that the
desire of the international community for discussions to take
place is not, and cannot be, an affirmation that exceptionally in
the case of Gibraltar, decolonisation can take place without the
exercise of the principle of self-determination which has been
the cornerstone of the philosophy for the eradication of
colonialism since its inception.
|