1.  The Treaty of Utrecht

7  The purpose of the intermediate paragraph quoted in para. 6 was to ensure that Gibraltar remained Christian after passing to British sovereignty. The treaty also contains a British undertaking not to grant any assistance to ships from Arab countries. This provision was to enable Spain to maintain uninterrupted communication with Ceuta and Melilla. The UK has not complied with these provisions, and Spain has never made much of their violation. Both provisions have become unenforceable with the development of general international rules on non-discrimination, such as the prohibition of racism.

8  From the beginning, the Treaty of Utrecht caused much controversy. Subsequent treaties periodically confirmed it, though none shed additional light on its interpretation (Treaty of Madrid [1721]; Treaty of Sevilla [1729]; Treaty of Aix-la-Chapelle [1748]; Treaty of Paris [1763]; Treaty of Versailles [1783]). Spain occasionally alleged that British violations of the Treaty of Utrecht, such as smuggling, the presence of Jews and Arabs on the territory, and the extension of British control beyond the garrison, nullified the treaty. At times, the UK offered to return Gibraltar in exchange for an alliance, for territorial concessions in the New World, or for Spanish neutrality during World War II.

2.  Spanish and British Claims

9  To underscore its claim to sovereignty over all of Gibraltar, Spain sometimes argued that the term propriety in the Treaty of Utrecht entails less than the expression fee simple in English land law. Also, a limit upon British sovereignty over Gibraltar could result from the phrase ‘without any territorial jurisdiction’. However, a cession thus restricted is difficult to square with the treaty’s text. The context and purpose of the entire paragraph indicate that this limitation applies only to the territory around Gibraltar, not to Gibraltar itself. Uniform treaty language (‘full and entire propriety’, ‘to be held and enjoyed absolutely and with all manner of right for ever, without any exception or impediment whatsoever’ in Art. X Treaty of Utrecht) points to a complete transfer of title and sovereignty over Gibraltar to Britain.

10  Another major disagreement with present-day implications centres on the cession’s territorial scope: the isthmus and the sea surrounding Gibraltar. Spain maintains that the cession was limited to the town, the castle, port, and fortifications, as they existed in 1713. In the negotiations leading to the Treaty of Utrecht, Great Britain claimed two cannon shots of ground around Gibraltar. France and Spain adamantly refused this demand on several occasions. In later centuries, the UK invoked an alleged rule of customary international law that two cannon shots of land were automatically included in any cession, in the absence of any indication to the contrary.

11  The UK gradually extended its control beyond Gibraltar’s fortifications, occupying about one square kilometre of the isthmus. Its position is that this part of the isthmus was also ceded in 1713. As an alternative basis of title over part of the isthmus under its control, the UK has referred to the exclusive British control and the alleged acquiescence of successive Spanish governments that would have forfeited any claim that Spain may at one time have possessed. Spain maintains that it has continuously objected to any claimed extension of British jurisdiction beyond the town’s limits. In view of the Treaty’s unambiguous text and repeated refusals to cede more than Gibraltar itself, it is doubtful whether the UK has a right to any part of the isthmus. The UK has also claimed that the cession included a three mile territorial sea around Gibraltar, a claim which Spain has repeatedly denied by reference to the Treaty’s silence. The difficulty arises because Art. X Treaty of Utrecht does not define the maritime space included in the port’s cession. On its accession to the UN Convention on the Law of the Sea ([concluded 10 December 1982, entered into force 16 November 1994] 1833 UNTS 397), Spain declared that ‘this act cannot be interpreted as recognition of any rights or situations relating to the maritime spaces of Gibraltar which are not included in article 10 of the Treaty of Utrecht of 13 July 1713 between the Spanish and British Crowns’ (see the Declaration of Spain Made Upon Ratification of the UN Convention on the Law of the Sea [done 15 January 1997] 33 UN Law of the Sea Bulletin 9).

12  A further source of long-standing friction concerns Gibraltar’s status as a free port, and, in modern times, its status outside the EC Customs area (see paras 27–31 below; Free Ports) which has facilitated the smuggling of duty-free goods out of the territory. Spain has often complained that the UK has given little assistance in interdicting the unlawful movement of goods across the Gibraltar frontier. Spanish attempts to prevent smuggling in the disputed waters of the Rock have led to confrontations with some frequency. Gibraltar’s role as an offshore business centre with more than thirty thousand companies registered in Gibraltar has also given rise to controversy. Offshore financial services account for a substantial part of Gibraltar’s economy, and online gambling accounts for more than 10% of the workforce. In December 2008 the European Court of First Instance held that Gibraltar’s corporate tax regime did not contravene EC law—a testament to the gradual strengthening of the territory’s regulatory framework (Joined Cases T–211/04 and T–215/04 Government of Gibraltar and United Kingdom v Commission). However, both Spain and the Commission of the European Communities appealed, and the case is currently pending before the European Court of Justice (‘ECJ’; Cases C–106/09 P and C–107/09 P [2009] OJ C141/22 and C141/23). Offshore finance generally has come under increased pressure in the wake of the global financial crisis which started in 2008. On 31 March 2009 the Agreement between the Government of the United States of America and the Government of Gibraltar for the Exchange of Information Relating to Taxes was signed, Gibraltar’s first agreement of this kind.

13  Between 1984 and the early 2000s, discussions over sovereignty took place in the framework of the Joint Communiqué Agreed by the Foreign Ministers of the United Kingdom and Spain of 1984 (‘Brussels Declaration’). Gibraltarian representatives participated in the Brussels process as part of the UK delegation until December 1987, but did not do so after that date. The aim of the Brussels process is to resolve all differences between the governments over Gibraltar, including sovereignty. Substantial progress was only possible once both governments wished to unblock the discussions by striving for a comprehensive and permanent settlement in the early 2000s, recognizing that a resolution of technical matters (see paras 32–33 below) was insufficient to resolve the dispute.

14  In 2002 the UK and Spain agreed on a tentative plan for sharing sovereignty over Gibraltar. In exchange, Spain would guarantee enhanced local autonomy to Gibraltar, protect its local culture, and tax regime. Also under the plan, Gibraltarians would retain British nationality. By contrast, agreement on the shared use of Gibraltar’s naval base remained elusive. The UK had proposed to convert it into a NATO base under British sovereignty to which Spain would have access. The British government invited Gibraltarian representation in its bilateral talks with Spain under the formula ‘two flags, three voices’. However, the government of Gibraltar chose not to participate without a formal veto.

15  The Report of the British Foreign Secretary Jack Straw to Parliament ([12 July 2002] [2002] 408 House of Commons Parliamentary Debates 1166) stated that even though no final agreement had yet been reached, the government was in broad agreement with Spain on many of the principles that should underpin a lasting settlement. The Foreign Secretary also made clear that the UK would only ratify a treaty with the consent of Gibraltarians. Moreover, any agreement on shared sovereignty needed to be permanent and existing military arrangements needed to continue. In the House of Commons, opposition to the government’s tentative plan was strong. The concerns centred on Spain’s long-standing aspirations to regain full sovereignty, the alleged slippery slope from shared sovereignty to full Spanish sovereignty, and the alleged lack of respect for the wishes of Gibraltarians. In November 2002, by referendum, 98.5% of Gibraltarians rejected the plan to share sovereignty with Spain. It has since been shelved.

16  In 2004 the Spanish and British Foreign Ministers consulted further on how to establish a new forum for dialogue on Gibraltar, with an open agenda, in which Gibraltar would have its own voice. The Tripartite Forum for Dialogue was launched in December 2004. Its focus on technical issues distinguishes it from the Brussels process (see Section E below).

1.  The Reversionary Provision

17  Disagreement also centres on the right of refusal contained in the Treaty of Utrecht and the implications of this provision for the right of self-determination. Article X Treaty of Utrecht stipulates that, should the UK ‘grant, sell, or by any means … alienate … the propriety of the said town of Gibraltar’, then ‘the preference of having the same shall always’ be offered first to Spain. At times, Spain has taken the position that any change in the UK-Gibraltar relationship, other than reversion to Spain, violates the Treaty’s reversionary provision and invalidates the 1713 cession. Despite several reorganizations of Gibraltar’s internal governance over the past centuries, the basic relationship—the UK exercises sovereignty—continues unchanged. Such adjustments to Gibraltar’s political status do not trigger the reversionary provision.

18  British sovereignty over Gibraltar today does not limit the options available with respect to a future change in status. It is in this connection that the application of self-determination to Gibraltar has given rise to considerable controversy. Whether Gibraltar is a case of external self-determination in the colonial context—involving the right to establish an independent State—is in dispute. The distinct question in Gibraltar’s context concerns the relationship between the territory and the neighbouring State, Spain. For self-determination in the sense of giving rise to a right to freely elect the disposition of a given territory, it is first necessary to identify a population that holds that right. The majority view rejects the notion that enclave populations without distinct ethnic, linguistic, or religious characteristics enjoy a right of external self-determination as respects the particular territory they inhabit. In the post-colonial context, the right of self-determination is expressed primarily through participation in the democratic process (Arts 1 (3) International Covenant on Civil and Political Rights [adopted 19 December 1966, entered into force 23 March 1976] 999 UNTS 171 and International Covenant on Economic, Social and Cultural Rights [adopted 16 December 1966, entered into force 3 January 1976] 993 UNTS 3). Smallness is sometimes also said to preclude self-determination, though the existence of numerous micro States shows that international law defines no lower limit.

19  Spain rejects external self-determination for Gibraltar with one important exception—the one change of status that Gibraltarians may pursue in self-determination is to elect to pass under Spanish sovereignty and shake off British colonial rule. To Spain, decolonization must mean reversion to Spain, on grounds of territorial integrity, even if this route does not fully accord with the wishes of the Gibraltarians. Gibraltarians claim they have exercised self-determination, and that their choice, freely expressed, has been to maintain free association with Britain, rather than to accede to independence. The British position on self-determination is ambiguous. The UK has occasionally referred to self-determination, as it has in connection with the Falkland Islands/Islas Malvinas, a case with certain similarities to that of Gibraltar.

20  Yet the UK accepts that Gibraltar cannot become independent without Spanish consent. If the right of external self-determination indeed applied to Gibraltarians and the territory they inhabit, it would be difficult to square post-1945 State practice on decolonization with Spain’s right of first refusal under the Treaty of Utrecht. This tension stems from the evolution of international law since the Treaty was negotiated. At that time, it was common to cede territory, without any consideration for the inhabitants. Three hundred years later, international law has moved away from the view that equates responsibility for territory simply to property. Though its precise application depends on the circumstances, the rule that Judge Dillard articulated in his separate opinion in the Western Sahara (Advisory Opinion) is one of general application: ‘it is for the people to determine the destiny of the territory and not the territory the destiny of the people’ (Western Sahara [Advisory Opinion] [Separate Opinion of Judge Dillard] ICJ Rep 116 at 122).

2.  The Role of the United Nations

21  The UN includes Gibraltar on its list of non-self-governing territories, for which the administering power is obliged to transmit information in accordance with Art. 73 (e) UN Charter. UN General Assembly Resolution 1514 (XV) of 14 December 1960 (GAOR 15^th Session Supp 16 vol 1, 66) set out principles on decolonization for territories ‘which [had] not yet attained independence’. The declaration recognized the right of self-determination of all peoples, but also stated that ‘[a]ny 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’. In 1963 The Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, created by UN General Assembly Resolution 1654 (XVI) of 27 November 1961 (GAOR 16^th Session Supp 17 vol I, 65), conducted a first hearing on Gibraltar. Gibraltarian political leaders testified that they desired free association with Great Britain. Spain insisted that separation of Gibraltar from Spain would breach its territorial integrity.

22  The Special Committee reached a consensus (adopted in UNGA Res 2070 [XX] [16 December 1965]), inviting Spain and the UK to conduct conversations in order to find ‘a negotiated solution in conformity with the provisions of General Assembly resolution 1514 (XV), giving due account to the opinions expressed by the members of the Committee and bearing in mind the interests of the people of the Territory’ (‘Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples’ [1965] GAOR 19^th Session Annexes, Annex No. 8 Part I, 314). The consensus was unusual, as were the references to the ‘opinions expressed by the members of the Committee’ (which diverged), and ‘interests’ (not wishes) of the inhabitants. Shortly thereafter, Spain adopted a range of restrictive measures directed against Gibraltar. For instance, Spain notified the International Civil Aviation Organization of a protective zone over Spanish lands and waters around Gibraltar. The UK refused to negotiate under such circumstances. When the UN General Assembly adopted Resolution 2231 (XXI) of 20 December 1966 which affirmed the consensus, negotiations began. In the course of these negotiations, Great Britain submitted a draft compromis to Spain to refer legal aspects of their dispute to the International Court of Justice (ICJ). Spain opposed submission on the proposed terms.

23  The UK responded with a referendum in Gibraltar, over strong objections of Spain and the Special Committee. 12,138 voters favoured retaining the status quo, while 44 voters preferred Spanish sovereignty. Gibraltarians and the UK saw the referendum as an act of self-determination. The phrasing of the question, however, probably tilted the vote in favour of the UK’s preferred outcome. Ever since, the UK has taken the position that Gibraltar should no longer be included on the UN list of non-self-governing territories, and later affirmed that the criteria used by the Committee were outdated. Spain maintained that as long as Gibraltar’s relationship with the UK continued in one form or another, it would remain a non-self-governing territory. According to Spain, Gibraltar remains an integral part of Spain, and territorial integrity hence pre-empts decolonization. The UK views the principle of territorial integrity as inapplicable.

3.  Gibraltar’s Relationship with the UK

25  In the early 1990s the UK and Gibraltar began considering how to modernize Gibraltar’s constitution. The resulting 2006 Gibraltar Constitution Order assigns greater powers to elected representatives, and reduces the role of British government appointees. The 1969 Constitution contained a closed list of matters devolved to Gibraltar. The 2006 Constitution devolves all matters to the Government of Gibraltar save for an exhaustive list of special responsibilities of the Governor. Devolved powers include ministerial appointments with the exception of the chief minister, law and order, and public finance. Human rights provisions are fully aligned with the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Gibraltarians approved the constitution by referendum. The UK conducts foreign and defence policy and is the Member State responsible for Gibraltar under European Union (‘EU’) and under international law.

26  The 2006 Constitution replicates the sovereignty preamble to the 1969 Constitution. Enduring British sovereignty is said to accord with the wishes of Gibraltarians. For the first time, the Constitution recognizes a restricted right of self-determination. This provision mirrors the UK’s stated position that Gibraltarians’ right of self-determination is conditioned on Spain’s right of first refusal should Britain ever relinquish sovereignty (‘internal self-determination’; Rigo Sureda 282). In view of British sovereignty and Spain’s secondary claim, it is doubtful whether under present political conditions independence is a realistic option for Gibraltar.

Select Bibliography

• Ministerio de Asuntos Exteriores de España (ed) Documentos sobre Gibraltar presentados a las Cortes Españolas por el Ministro de Asuntos Exteriores (5^th edn Imprenta del Ministerio de Asuntos Exteriores Madrid 1966).
• Ministerio de Asuntos Exteriores de España (ed) Razones de España sobre Gibraltar (Aguilar Madrid 1966).
• JES Fawcett ‘Gibraltar: The Legal Issues’ (1967) 43 International Affairs 236–51.
• A Rigo Sureda The Evolution of the Right of Self-Determination: A Study of United Nations Practice (Sijthoff Leiden 1973).
• H Eisemann Der Streit um Gibraltar: Selbstbestimmungsrecht, Entkolonisierungsrecht und clausula rebus sic stantibus (Hanstein Köln 1974).
• FB Harris Gibraltar: A Case Study of the Conflict between the Sovereign Rights of a State and the Principle of Self-Determination (New School for Social Research New York 1978).
• HS Levie Status of Gibraltar (Westview Press Boulder 1983).
• GJ Naldi ‘The Gibraltar Dispute and some Possible Solutions’ (1984) 31 NILR 31–58.
• J Díez-Hochleitner ‘Les relations hispano-britanniques au sujet de Gibraltar: Etat actuel’ (1989) 35 AFDI 167–89.
• E Mariaud Gibraltar: Un défi pour l’Europe (Institut Universitaire d’Etudes Européennes Genève 1990).
• DS Morris and RH Haigh Britain, Spain and Gibraltar 1945–90: The Eternal Triangle (Routledge London 1992).
• JG O’Reilly Gibraltar: Spanish and United Kingdom Claims (International Boundary Research Unit Durham 1992).
• R Gozney Gibraltar and the EC: Aspects of the Relationship (Royal Institute of International Affairs London 1993).
• JJ Bossano ‘The Decolonization of Gibraltar’ (1995) 18 FordhamIntlLJ 1641–46.
• A Cassese Self-Determination of Peoples: A Legal Reappraisal (CUP Cambridge 1996).
• JC Duursma Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood (CUP Cambridge 1996).
• M Hofer Die Rückgabe Gibraltars an Spanien (Braumüller Wien 1996).
• C Izquierdo Sans Gibraltar en la Unión Europea: Consecuencias sobre el contencioso hispano-británico y el proceso de construcción europea (UAM Ediciones Madrid 1996).
• C Anguita Olmedo La cuestión de Gibraltar: Orígenes del problema y propuestas de restitución (1704–1900) (Universidad Complutense de Madrid Madrid 1997).
• F Aguilera Iborra Gibraltar: Optionen unter Berücksichtigung der internationalen Politik und des völkerrechtlichen Rahmens (Universität der Bundeswehr München 2000).
• O de Schutter and OL Hoest ‘La cour européenne des droits de l’homme juge du droit communautaire: Gibraltar, l’Union européenne, et la Convention européenne des droits de l’homme’ (2000) 36 Cahier de Droit Européen 141–214.
• F Baeza Betancort Una aproximación jurídica al contencioso de Gibraltar: la clausula ‘rebus sic stantibus’ y el derecho de libre determinación de los pueblos (Real Sociedad Económica de Amigos del País de Gran Carnaria Las Palmas 2001).
• G Kreis Gibraltar: ein Teil Europas: Imperiale oder nationale Besitzansprüche und evolutive Streiterledigung (Europainstitut der Universität Basel Basel 2001).
• C Izquierdo Sans ‘¿Gibraltar el fin de una controversia?’ (2002) 54 REDI 617–41.
• P Ruiz-Jarabo ‘Por una interpretación pacífica de Matthews contra Reino Unido: Colonialismo y derechos fundamentales en Gibraltar’ (2002) 18 Anuario de Derecho Internacional 229–52.
• P Andrés Sáenz de Santa María and C Izquierdo Sans ‘Eppur si muove: Un nuevo enfoque en las negociaciones sobre Gibraltar: A propósito de los comunicados conjuntos de 27 de octubre y 16 de diciembre de 2004’ (2004) 56 REDI 741–64.
• JA Valle Gálvez (ed) Gibraltar, 300 años (Servicio de Publicaciones de la Universidad de Cádiz Cádiz 2004).
• K Müller ‘Being “European” in Gibraltar’ (2004) 26 Journal of European Integration 41–60.
• A Remiro Brotóns ‘Regreso a Gibraltar: Acuerdos y desacuerdos Hispano-Británicos’ (2004) 10 Revista Jurídica de la Universidad Autónoma de Madrid 133–81.
• PP Gold Gibraltar: British or Spanish? (Routledge London 2005).
• EG Archer Gibraltar: Identity and Empire (Routledge London 2006).
• I González García ‘La nueva estrategia para Gibraltar: El foro tripartito de diálogo y los acuerdos de 2006’ (2006) 58 REDI 821–42.
• V Miller ‘Gibraltar: Diplomatic and Constitutional Developments’ House of Commons Library Research Paper 06/48 (2006).
• L Burgorgue-Larsen ‘L’identité de l’Union européenne au cœur d’une controverse territoriale tricentenaire: Quand le statut de Gibraltar réapparaît sur la scène judiciaire européenne: CJCE 12 septembre 2006, aff. C-145/04 Royaume d’Espagne c/ Royaume-Uni de Grande-Bretagne et d’Irlande du Nord’ (2007) 43 RTDE 25–45.
• MR Jordine The Dispute over Gibraltar (Chelsea House New York 2007).
• HP Aust ‘Von Unionsbürgern und anderen Wählern: Der Europäische Gerichtshof und das Wahlrecht zum Europäischen Parlament’ (2008) 11 Zeitschrift für Europarechtliche Studien 221–42.
• L Lombart ‘Gibraltar et le droit à l’autodétermination: perspectives actuelles’ (2008) 53 AFDI 157–81.
• N Susani ‘Sur quelques singularités territoriales européennes’ (2008) 53 AFDI 182–210.
• Ministerio de Asuntos Exteriores de España (ed) The Question of Gibraltar (Imprenta del Ministerio de Asuntos Exteriores Madrid 2008).
• PP Gold ‘The Tripartite Forum of Dialogue: Is this the Solution to the “Problem” of Gibraltar?’ (2009) 14 Mediterranean Politics 79–97.
• C Antón Guardiola Gibraltar: un desafío en la Unión Europea (Tirant lo Blanch Valencia 2011).

Select Documents

• ‘Agreed Arrangements relating to Gibraltar Authorities in the Context of EU and EC Instruments and Related Treaties’ (19 April 2000) in Council Decision of 22 December 2004 (2004/926/EC) on the Putting into Effect of Parts of the Schengen Acquis by the United Kingdom of Great Britain and Northern Ireland [2004] OJ L395/70 Annex III.
• Agreement between the Government of the United States of America and the Government of Gibraltar for the Exchange of Information Relating to Taxes (done 31 March 2009).
• Case C-145/04 Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland [2006] ECR I-7917.
• Case C-298/89 Government of Gibraltar v Council [1993] ECR I-3605.
• Gibraltar Constitution Order 2006, with Annex I: The Constitution of Gibraltar (adopted 14 December 2006, entered into force 2 January 2007).
• The Gibraltar (Constitution) Order 1964 (Her Majesty’s Stationery Office London 1964).
• Gibraltar Constitution Order 1969 (adopted 23 May 1969, entered into force 30 May 1969) in P Raworth (ed) Constitutions of Dependencies and Territories (Oceana Dobbs Ferry) vol 9 (Supp 2002–1) 7.
• Goran U (Exequatur) No 1768/1998 Tribunal Supremo [Spanish Supreme Court] (20 February 2001) (2001) 2 Repertorio de Jurisprudencia 6005.
• Joined Cases T–211/04 and T–215/04 Government of Gibraltar and United Kingdom v Commission [2008] OJ C44/41.
• ‘Joint Communiqué Agreed by the Foreign Ministers of the United Kingdom and Spain’ in ‘Letter dated 4 December 1984 from the Permanent Representatives of Spain and the United Kingdom to the United Nations Addressed to the Secretary-General’ (27 November 1984) UN Doc A/39/732, 2.
• Matthews v United Kingdom (ECtHR) Reports 1999-I 251.
• Petrobart v Kyrgis Republic (Arbitral Award) Arbitration Institute of the Stockholm Chamber of Commerce (29 March 2005).
• Treaty of Peace and Friendship between Great Britain and Spain (signed 13 July 1713, entered into force 4 August 1713) 28 CTS 295 (Treaty of Utrecht).
• UNGA Res 2070 (XX) ‘Question of Gibraltar’ (16 December 1965) GAOR 20^th Session Supp 14, 59.
• UNGA Res 2231 (XXI) ‘Question of Gibraltar’ (20 December 1966) GAOR 21^st Session Supp 16, 74.