House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Fourth Report

SPANISH PRESSURE ON GIBRALTAR

17. We turn now to examine a number of the areas in which Spain has exerted pressure on Gibraltar in recent months, beginning with the fishing dispute which came to a head earlier this year, and which the Gibraltar Government regards as the source of the current tension.[21]

Fisheries dispute

18. In 1991 the Gibraltar Legislature passed comprehensive legislation on the protection of wildlife and nature conservation. This was entitled the Nature Protection Ordinance.[22] Article 10 of the Ordinance made it an offence to use a number of methods for killing or taking wild animals. Under this Article, it is unlawful to use any "seine or gill net, any pot or device for raking of sea-bed." Thus, in Gibraltarian waters, the principal commercial fishing methods are illegal. Gibraltar itself has no commercial fishing industry and the protection of its fish stocks is a matter of nature conservation rather than anything to do with the Common Fisheries Policy of the EU.[23] Spanish fishing vessels had traditionally fished in moderation in Gibraltarian waters. After the passing of the 1991 Ordinance, this fishing was allowed to continue by the Royal Gibraltar Police (RGP), who sensibly did not apply a policy of zero tolerance—though there was a willingness by the Spanish vessels to respect the orders of the Gibraltarian authorities.[24]

19. Beginning in late 1997, and coming to a head in March 1998, Spanish fishermen entered Gibraltarian waters in increasing numbers and in larger boats. The RGP recorded 520 occasions on which Spanish fishing boats entered Gibraltarian waters in 1998,[25] with 141 of them occurring in December alone. This compares with 56 incursions in the whole of 1997. Spanish fishermen also refused to leave when requested to do so, and refused to recognise the authority of the RGP.[26] Their motivation might in part have been because of overfishing elsewhere, but was also assumed by many in Gibraltar to be a deliberate statement of the Spanish position on sovereignty. As we have already mentioned, this position has always been that, under the Treaty of Utrecht, Gibraltar has no territorial waters.[27] The view that the fishing incursions were part of an official Spanish stand on sovereignty is corroborated by evidence which the RGP have that some of those present on the boats were Spanish officials, and by the presence of Spanish Guardia Civil and Customs vessels and helicopters to protect the Spanish boats.[28]

20. A vivid picture of the extent of Spanish incursions at their worst was given to us by the RGP during our visit. Between 10 and 15 trawlers were involved at any one time, and dangerous incidents, such as the striking of a RGP launch by a Spanish Customs helicopter, occurred. Indeed, the RGP was not able to cope by itself, and, through the Governor, requested the deployment of the Royal Navy in aid of the civil power. In the event, this deployment did not occur.

21. Both British officials and Mr Caruana had attempted to negotiate an end to the incidents. The Chief Minister held meetings with fishermen's representatives in March and September 1998 "in an attempt to persuade them to return to the status quo."[29] Similar discussions took place between British and Spanish officials.[30] On 5 October 1998, the Foreign Secretary discussed the issue with Señor Matutes in the margins of a meeting at Luxembourg. An oral agreement was reached. The British and Spanish accounts differ as to what that oral agreement was. This lack of clarity, and the subsequent misunderstandings, illustrate the danger of reaching oral agreements in international disputes. Ms Quin, in a letter to Mr Caruana,[31] made it clear that the British Government believed that the agreement was to return to the situation which had existed before 1998, and that there had been "no question of HMG negotiating or reaching an agreement to break or change the laws of Gibraltar." On the other hand, the Spanish Ministry of Foreign Affairs issued a note on 3 November which claimed that, under certain conditions, "el compromiso, entendimiento o acuerdo hispano-britanico alcanzado permite la pesca en las aguas en litigio" (our translation and emphasis: "the compromise, understanding or agreement reached between Spain and Britain permits fishing in the disputed waters"). This version of the agreement, with the implication that the Nature Protection Ordinance was being abrogated, was unacceptable to the Gibraltarian Government.[32]

22. When the Gibraltar Government and Mr Caruana made it plain that they did not believe that Gibraltarian law had been set aside, the Spanish authorities "persistently and aggressively blamed [the Chief Minister] for ignoring and for undermining the "understanding" between London and Madrid."[33] What Mr Caruana described as the "nuances and ambiguities" of the discussions had led to misunderstandings on all sides.[34] Spanish vessels continued their aggressive fishing, culminating in the arrest of the 14-man crew of the trawler Pirana on 27 January 1999.[35] As a result of this arrest, Spanish fishermen blockaded the frontier on 29/30 January. On 29 January, the FCO issued a press release emphasising their version of the October agreement, and calling for the restoration of the 1991-1997 harmony. The press release said that "further discussion to clear up areas of misunderstanding, and local dialogue with the fishermen" would be required.[36]

23. To his credit, Mr Caruana immediately embarked on this dialogue, and an agreement was reached between him and the Spanish fishermen's representatives on 3 February 1999.[37] Essentially, the agreement represented a return to the status quo. The FCO issued a press release to the effect that the agreement was "very welcome" and that it had the "strong support of the British Government and of the Governor."[38] Once again, however, the central Spanish Government represented the agreement as an attempt by the Government of Gibraltar to undermine the agreement reached between the Spanish and British Governments, and questioned the Gibraltarian Government's competence to reach such an agreement.[39] This is part of their long-standing policy of withholding recognition of the Gibraltarian authorities—a policy which we will refer to elsewhere. A Spanish media perception of the situation was clearly expressed in an editorial in El País on 12 February which commented that "the fact that the United Kingdom is incapable of applying in Gibraltar the agreements it has reached with Madrid shows either impotence or bad faith." In early March, the Spanish Government banned fishing in its own waters in the area and, since it believes that Gibraltar's waters are its own, as far as Spanish fishermen are concerned , in Gibraltar's waters. This ban was imposed for two months, and was imposed for reasons of conservation. This action temporarily removed any problem. Mr Caruana told us that he did not believe that the problem would flare up again, and that, if it did, it would not be the Gibraltarian side which would be to blame.[40]

24. We believe that Mr Caruana has adopted a sensible policy with regard to the Spanish fishermen. Local compromise and co-operation is to be applauded and should be developed in this and other areas. We hope that the Spanish authorities will not in the future try to upset the agreement which Mr Caruana has reached. If they do, however, it will be the responsibility of the British Government to ensure that the RGP has the proper resources to ensure that it is able to uphold the law. We understand that the RGP has approached the United Kingdom and Gibraltar Governments seeking funding for a new fast patrol vessel, to be used both for fisheries protection and for the interdiction of smuggling. We return elsewhere to the issue of this vessel and to the use of the Royal Navy to support the civil power.[41]

25. There is one important constitutional point to be made in the context of the fishing dispute. The Commissioner of the RGP has operational responsibility for the RGP and "exercises normal policing discretion when taking decisions on operational matters, on the same lines as Chief Constables in the United Kingdom."[42] Whatever agreement there may be between the British and Spanish Governments, or between Mr Caruana and the fishermen, it is for the Commissioner to decide how to enforce the law. It is wrong to place a Chief Officer in a position where he is asked to enforce the law in a way which is politically expedient. Ms Quin told the House that the Government hoped that the agreement would be "backed up by legislation in the Gibraltar Assembly."[43] We agree. We understand Mr Caruana's concern that amending the law might appear to be capitulation to Spanish pressure,[44] but we do not believe that this is the case. We hope that the Government of Gibraltar will seek to amend the Nature Protection Ordinance so that the informal understanding about the extent to which it is not to be enforced is given proper legal effect.

26. There is one further point to make in relation to the Nature Protection Ordinance, so far as it applies to fishing vessels. In the case of the Pirana, 11 crew members were convicted of illegal fishing under the Ordinance on 14 April 1999. It is a normal principle of maritime law that it is the master of a fishing vessel alone who is arrested for fishing offences.[45] Because the Nature Protection Ordinance was not drafted with commercial fishing particularly in mind, no such provision was included.[46] It may be unnecessarily inflammatory for all those engaged in fishing to be arrested, and we draw to the attention of the Gibraltarian Government the possibility that the Nature Protection Ordinance be amended so that, if a fishing boat is involved, it is the master of the vessel alone who commits an offence under Article 10.

Border Restrictions

27. The Spanish Government have regularly applied pressure on Gibraltar by closing the border or restricting severely traffic across it. This was what happened after 29 January 1999 when the frontier was entirely blocked as part of the fishing dispute. Statistics presented by the Gibraltar Government demonstrate that the daily average border delays for motor vehicles during the first 28 days of January ranged between zero and one hour, and averaged just over 20 minutes. Between 29 January and 18 April, average daily delays were never less than 38 minutes, and were on a number of occasions over three hours. These statistics have to be read along with a reduction by up to two thirds in the volume of traffic. Cumulatively, according to the Gibraltar Government, the average rate of flow has been 52 vehicles every half hour compared to a pre-January 1999 figure of 150.[47] The figures demonstrate some easing through March and April, and occasional days when the delays returned to the normal levels of before 29 January.[48] The severe practical inconveniences were brought home to us in written evidence from a Church of Scotland Minister with congregations on both sides of the border.[49] We ourselves witnessed the delays at the border, and can attest to the unnecessary discomfort imposed upon residents of Gibraltar, their Spanish neighbours who gain their livelihood in Gibraltar and the visitors to the area, many of whom come from other EU countries. The psychological problem of claustrophobia imposed upon Gibraltarians was also made very clear to us.

28. Both the British and Gibraltarian Governments told us of evidence of a reduction in the length of border delays at times when Spanish workers were crossing the border at the beginning and end of the working day.[50] Restrictions have now been placed by the Gibraltarian authorities on motorcycle and scooter access to the border so that their riders (who are predominantly local workers) are no less—and no more—inconvenienced than motorists. The delays are desperately difficult for the 4000 or so Spanish workers who cross the border. [51] The British Government drew our attention to the consequent deep level of local disquiet in Spain, with protests about border delays having been made to Madrid,[52] and trade union leaders in Gibraltar told us of the opposition of their Spanish counterparts to the use of the border as a weapon. According to a report in El País,[53] the Spanish union leader Señor Valentín Galcerán (who represents Spanish workers in Gibraltar) told Señor Matutes that he feared "total ruin" for the cross-border work force, who were being used as soldiers in a battle for which they had not volunteered. Another report[54] described a demonstration in the Spanish border town of La Linea against the hardening of controls. Around 5000 people, including local political leaders took part in this demonstration. This is hardly surprising, since, according to El País, "it is calculated that 5000 Spanish families gain their daily bread on the Rock."

29. Spain is entitled to check the immigration status of persons arriving from Gibraltar because the United Kingdom and Gibraltar are outside the Schengen free movement area. In a letter written by a senior Spanish official,[55] this is regarded not just as a right, but as an obligation under EU law. The opt-out Protocol agreed at the time of the Amsterdam Treaty,[56] which gives the United Kingdom its border controls, gives reciprocal rights to other EU countries to exercise identical controls on persons arriving from the United Kingdom or its external territories, including Gibraltar. This Protocol only came into force with the rest of the Amsterdam Treaty on 1 May 1999. Opposition politicians in Gibraltar suggested to us that frontier restrictions imposed before this date were challengeable under Article 7A of the Treaty Establishing the European Union. However, the British Government told us that they did not "consider that the entry into force of the Protocol will affect [HMG's] ability to challenge Spanish border control delays."[57] In any event, the form of passport check between Spain and Gibraltar should be a "light" one,[58] no more onerous than that imposed upon those arriving on a British flight in Malaga or a British ferry in Santander. We return to Schengen issues later.[59]

30. Spain also has the right in European Union law to impose a Customs check on persons entering Spain from Gibraltar because Gibraltar is outside the Community Customs territory. Again, this is viewed by Spain as not just a right but an obligation under EU law.[60] Yet unlike other external borders of the European Union, no red and green channels are operated at the Spanish/Gibraltarian border, with every car subject to examination and one channel alone open. Indeed the Gibraltar Government told us that the restrictions placed on traffic across the border were not applied by Spain to traffic arriving from Morocco, either by sea at Algeciras or by land in Ceuta, though Morocco is outside the European Union altogether.[61]

31. The British Government has complained to the Spanish Government that the frontier delays are "excessive and unjustifiable." Ms Quin described them as "intolerable."[62] The Prime Minister has told his Spanish counterpart that the delays are "unacceptable and unjustifiable".[63] The Government has also "pressed the European Commission on the need to remind Spain of her EU obligations for free movement of people."[64] Ms Quin told us that the Commission has said that "it will look into the matters" and that they had sought the opinion of lawyers.[65] She was unwilling, however, to set a deadline for the Commission to reply. Mr Caruana told us that he had not been able to discern any action from the Commission, though he referred us to a letter from the Head of DG XV which promised that they intended to contact the Spanish authorities in response to complaints from those delayed at the border.[66] In reply to supplementary questions from the Committee, the Government has drawn attention to the provisions of Articles 226 and 227 of the Treaty of Amsterdam which would allow the Spanish Government to be taken to the European Court of Justice for the obstruction of free movement across the Gibraltar/Spain border. Essentially Article 226 procedure gives the European Commission the power of initiative, while the much more rarely used Article 227 permits one Member State to act against another.

32. We were made aware of a common feeling in Gibraltar that the European Commission appeared to be unwilling to mount a defence of Gibraltarians' EU rights, preferring instead to regard the matter as one for bilateral resolution between the United Kingdom and Spain. Ms Quin agreed that the Commission is "often hesitant" to act in what it sees as a dispute between Member States.[67] Although it is the Government's policy to await the outcome of its representations to the European Commission before it considers legal action against Spain,[68] this wait cannot continue. We conclude that the present system of border controls is unacceptable and wholly inappropriate between two parts of the EU. The Spanish authorities should immediately normalise the border regime which they impose. In any event, we recommend that the British Government should not hesitate to invoke the procedures allowed under the Treaty of Amsterdam to ensure that the right of free movement of EU citizens, whether Gibraltarians or others, is respected. If the Commission is unwilling to take swift action itself, the British Government should invoke Article 227 against Spain.

33. Our hope that Spain might normalise the border regime is founded on an expectation that Spain will want to comply with the letter of EU law, and to act in a manner which is compatible with EU obligations. However, we also believe that a pragmatic and non-inflammatory attitude towards the border is likely to lead to a more trusting attitude towards Spain by Gibraltarians. Union leaders in Gibraltar, for example, told us that if Spain had lifted border restrictions after Franco, there might now be a warmer attitude to Spain in Gibraltar. As it was, what was happening at the border was simply alienating Gibraltarians further, especially young people. When the frontier was open, links—including personal links, such as intermarriage—increased. As Ms Quin commented, "Spanish aspirations to have sovereignty over Gibraltar could only be realised if the people of Gibraltar wish that to happen... measures that make the life of Gibraltarians more difficult are hardly likely to endear them to that approach."[69]

34. The border restrictions which Gibraltar imposes on those arriving from Spain are entirely in-keeping with Gibraltar's EU obligations, and we would not wish to see them made commensurate with those imposed on those travelling in the opposite direction. There is, however, one change which we believe that the Gibraltarian authorities might consider. The border fence was originally erected by the British. Its dismantlement could be a powerful indication of the British and Gibraltarian attitude towards borders within the European Union.

The Airport

35. Gibraltar airport is adjacent to the border with Spain, and it is common ground that important economic benefits both to Gibraltar and to the adjacent parts of Spain would flow from its development.[70] The precedent of Basel/Mulhouse airport, where passengers can travel directly to and from either Switzerland or France, demonstrates a way in which airports at borders can operate to the benefit of both countries concerned. Instead, however, the airport and air services have become a tangle of disagreement between London, Madrid and Gibraltar.

36. The airport is built on the isthmus between the mainland and the Rock. This is territory which Spain has never conceded as belonging legitimately to the United Kingdom.[71] Spain's traditional position has therefore been that Spanish passengers landing in Gibraltar should not have to pass through United Kingdom controls, and that flights to Gibraltar from within Spain should be regarded as domestic flights. Any concessions in these areas can easily be represented in Gibraltar as a weakening of the British position on sovereignty.

37. According to the Gibraltarian Government, Spain first used the EC as a lever against Gibraltar in the context of the airport.[72] This was in 1987, when Spain threatened to block the first measure under the Air Liberalisation Regime. In an attempt to head this off, the British and Spanish Governments negotiated, as part of the Brussels Process, a joint declaration on the use of the airport.[73] Although the declaration specifically said that it was without prejudice to Spanish and British positions about sovereignty, it provided for Spanish authorisation of flights from Spain to Gibraltar and for direct transit to and from a Spanish terminal for passengers travelling from or to Spain. The declaration was therefore unacceptable to Mr Bossano, the Leader of the Gibraltar Socialist Labour Party, who fought and won the 1988 Gibraltarian elections on this basis. We understand that Mr Bossano remains opposed to the declaration. Mr Caruana also told us that the 1987 declaration is unacceptable[74] and this has been the unanimous view of the Gibraltar House of Assembly since 1988.[75] The 1987 declaration could only be implemented through Gibraltarian legislation, and it has therefore never entered into force since "HMG have made it clear that they cannot implement the joint declaration against Gibraltar's will."[76]

38. Although subsequent EU legislation has rendered parts of the 1987 declaration obsolete, the Spanish Government has insisted that the declaration should be honoured before any progress can be made.[77] For this reason, it has used air issues as a bargaining counter. In several cases, it has threatened to veto EC air services legislation unless Gibraltar is excluded (or, more properly, unless application to Gibraltar is suspended[78]). According to the Gibraltar Government, this policy was initially limited to measures dealing with access of air services to Gibraltar airport, but "since 1995, Spain has sought Gibraltar's systematic exclusion from all directives and regulations howsoever related to the airport or aviation."[79] The Gibraltarian Government listed a number of aviation-related measures where the Spanish have insisted on the exclusion of Gibraltar, on some of which the British Government had conceded to Spain because "the interests of Gibraltar are outweighed by the interests of the UK or the EU as a whole,"[80] while in others the British Government has refused to accept that Gibraltar should be excluded. We return later[81] to a discussion of the appropriate British policy on the exclusion of Gibraltar from EU legislation, but we note the FCO's refusal "to accept Spanish demands for the automatic exclusion of Gibraltar from EU aviation legislation."[82]

39. The FCO drew our attention to even more severe measures being threatened by Spanish Ministers in the airport context. Both Señor Matutes and the Spanish Labour Minister, Señor Pimentel, have suggested that they are contemplating the banning of civil overflights of Spain by aircraft coming from or going to Gibraltar.[83] Military overflights have been banned since 1967[84]—a measure in itself hardly in-keeping with Spain's membership of NATO—but the banning of civil overflights would be a clear breach of international treaty obligations and, as the FCO put it, an "extraordinary and unprecedented" act for one EU state to take against another.[85] We raised this matter with Ms Quin, who told us that the Government "would very strongly condemn any such approach" and "contest it very firmly."[86] We believe that if Spain were to act in such an unwarranted manner, proportionate reciprocal measures should be considered against Spanish aviation interests.

40. The British Government would like "all parties to look afresh at the [airport] issue in the hope of finding a way forward which is acceptable to all sides."[87] Ms Quin referred to the airport as "an area of potential."[88] We share this view. The ratchetting up of the dispute does nothing for the people of the area. On the contrary, agreed joint use of the airport would bring advantages to the whole region, not just in terms of economic prosperity but in the normalisation of relations more generally. This point was made to us by the Gibraltar Chamber of Commerce.[89] Mr Caruana told us that his Government was "interested in pursuing ways in which the airport can be commercially exploited to a greater extent to the benefit both of Gibraltar and the Spanish hinterland". He did not favour a solution which would allow two terminals, one on the Spanish side and one on the Gibraltarian side, because of the implications for sovereignty. However, nor did he expect Spain to make any concessions in its territorial claim to the land on which the airport is built. In his words, "the airport has the potential to provide a breakthrough in co-operation matters".[90] So far as the future is concerned, the Gibraltarian side must be reassured that no concession is made on sovereignty, but they must recognise that Spain is equally unlikely to abandon its view that it has legal title to the territory on which the airport is built. Spain must be forcefully reminded that Gibraltar cannot in a discriminatory manner be denied its EU rights in the aviation field, and for them to use aviation as a club with which to beat Gibraltar has adverse consequences for their own citizens in the region.

41. The airport is owned by the Royal Air Force and this gives the British Government a particularly important role in promoting a new airport agreement. We were assured by the Commander of British Forces in Gibraltar that this Ministry of Defence (MoD) interest did not stand in the way of a new airport agreement providing for joint use between Gibraltar and Spain. We would also welcome positive measures by the MoD to develop the airport. We heard suggestions in Gibraltar that charges imposed by the MoD are discouraging development at present. Mr Caruana described the landing changes as "disproportionately high".[91] We took this matter up with the Commander of the British Forces in Gibraltar, who explained that the MoD was obliged to recover the costs of supporting commercial operations by the carriers who fly into Gibraltar, but did not impose higher charges than those in, for example, Jersey and Guernsey. Reductions were also offered to encourage new carriers. We believe that lower charges in Gibraltar might encourage more carriers to use the airport facilities. They would thereby bring more revenue to the MoD to the mutual benefit of the MoD and Gibraltar. We conclude that there is great potential in the development of the airport in a way which would assist both Spain and Gibraltar. This is an area where real progress can be made. We recommend that the British Government take advantage of its ownership of the airport to facilitate a new agreement for the joint use of Gibraltar airport.

Sea communications

42. As well as imposing restrictions at the border and in respect of air communications, Spain does not permit any sea ferry crossing from Spain to Gibraltar. As one of our witnesses put it, "routes from Algeciras, Sotogrande and Puerto Banus would benefit everyone."[92] Commercial considerations alone should determine which transport links are to exist inside the European Union. Sea ferry crossings to Gibraltar should be allowed if the business is available to make them viable—though this depends on no excessive restrictions on transit being put in place by Spain. We understand that the then British Government referred this issue to the European Commission in 1991, but that the Commission rejected the British argument on the grounds that the Spanish Government was entitled to place restrictions on its own nationals.[93] If a cross-border element were to be involved, then a case could be taken to the European Court of Justice, but we understand that there is, at present, no potential non-Spanish operator. We recommend that the Government give the fullest legal support to any Gibraltarian (or other non-Spanish) operator who wishes to re-establish a ferry crossing between Gibraltar and Spain.

21 Ev. p. 32, para. 1. Back

22 Ordinance No.11 of 1991. Back

23 Ev. p. 4, para. 35. Back

24 Ev. p. 32, para. 2. Back

25 HC Deb 19 January 1999 c. 437 Back

26 Ev. p. 5, para. 37; p. 32, para. 3. Back

27 HMG para. 2-Spain made this point in a Declaration it made when in 1984 it ratified the UN Convention on the Law of the Sea. Back

28 Ev. p. 33, para. 5. Back

29 Ev. p. 32, para. 4. Back

30 Ev. p. 5, para. 38. Back

31 The full text of this letter is reproduced in Ev. pp. 49-50, Appendix 1. Back

32 Ev. p. 33, para. 8. Back