APPENDIX 2
Supplementary Memorandum from Kenneth
Westmoreland
International law and Gibraltar's right to self-determination
1. Spain has maintained that under the Treaty
of Utrecht of 1713, Britain must offer Gibraltar to Spain if there
is a change of sovereignty over the territory, and that the principle
of territorial integrity, and not self-determination, that applies
in the case of decolonisation of Gibraltar.
2. Spain further argues that the "inhabitants"
of Gibraltar are not a colonised people, but the descendants of
people who came to work in the British garrison, as the original
Spanish population was expelled in 1704. This argument is absurd,
anachronistic, and grotesque, especially when compared with other
colonial territories, such as Singapore, Trinidad and Mauritius,
whose population is not indigenous, but rather the descendants
of people who came, or who were brought by, the colonising power.
Not only does it beggar belief that Spain puts forward such outrageous
arguments in international fora, but that these go largely unchallenged
by the British Government.
3. Spain puts forward the argument that
Gibraltar is a colonial "enclave" in its national territory,
in much the same way as China regarded Hong Kong and Macau. In
addition, Spain has argued that the right of self-determination
did not apply in the case of Hong Kong, ignoring the fact that
the territory was on a 99-year lease, which China refused to extend
beyond 1997. In the case of Macau, Portugal always recognised
de facto Chinese sovereignty in the territory, redefining
it as a "Chinese territory under Portuguese administration"
in 1976.
4. Spain, in fact, recognised the principle
of "territorial integrity" when it ceded the enclave
of Ifni to Morocco in 1969, but has rejected parallels between
British sovereignty of Gibraltar and its sovereignty over the
enclaves of Ceuta and Melilla, both of which are claimed by Morocco.
It argues that these form integral parts of the Spanish state,
and their populations are of Spanish extraction, whereas Gibraltar
has never been part of the British state, and its population is
of mixed ethnic origins.
5. United Nations Resolution 1541 (XV) states
that:
The establishment of a sovereign and independent
State, the free association or integration with an independent
State or the emergence of any other political status freely determined
by a people constitute modes of implementing the right of self-determination
by that people. (Declaration on the Principles of International
Law Concerning Friendly Relations Among States in Accordance with
the Charter of the United Nations, 1960)
6. The British Government has never denied
the existence of Gibraltar's right to self-determination, but
rather has argued that this is curtailed by the provisions of
the Treaty of Utrecht. Independence has been ruled out, although
for its part the Government of Gibraltar has stated that it does
not seek independence from Britain. Free association has similarly
been rejected on the grounds that it is a route to full independence,
while the option of integration with Britain has been denied by
successive British governments since the "Hattersley Memorandum"
of 1976.
7. Consequently, Gibraltar has been placed
in a state of suspended animation, as far as its constitutional
status is concerned. While Gibraltar does indeed enjoy considerable
legislative and fiscal autonomy under the 1969 Constitution, the
Governor and Deputy Governor retain responsibility for the police
and the civil service, while the Financial Development Secretary
and Attorney-General are appointed by the Governor, and are unelected
ex officio members of the House of Assembly. There is widespread
agreement among the parties in Gibraltar that this cannot continue.
8. Spain regards any change to Gibraltar's
status as a hostile act, fraudulent of the Treaty of Utrecht,
hence its refusal to recognise the 1967 referendum on sovereignty,
or the 1969 Constitution, and consequently, the Government of
Gibraltar's very existence. Spain argues that the only options
for Gibraltar's future status are for it to remain a British colony,
or to be incorporated into the Spanish state, and rejects the
premise that the "inhabitants" of Gibraltar are entitled
to the right of self-determination.
9. Spain has accused the UK of using the
Preamble to the 1969 Constitution upholding the wishes of the
people of Gibraltar as an excuse to avoid discussion of sovereignty,
and points to UN Resolutions which rejected the validity of the
1967 referendum. It should, however, also be noted, that in 1969
the UN endorsed the rigged "Act of Free Choice" which
approved the annexation of West Papua by Indonesia, although the
UN did not endorse close the similar attempt by Indonesia to legitimise
its annexation of East Timor in 1976. In the light of East Timor's
vote on independence, several states in the Pacific have called
on the UN to reconsider the issue of West Papua, and the validity
of the 1969 "Act of Free Choice".
10. One possibility would be to take the
matter to the International Court of Justice (ICJ). As Gibraltar
is not a sovereign state, it is unable to appear before the ICJ
as party in its own right, but both the United Kingdom and Spain
recognise the jurisdiction of the Court, and would be bound by
any ruling. The Government of Gibraltar has previously raised
the option of obtaining an advisory opinion from the ICJ on the
question of Gibraltar's right to self-determination, although
it is questionable as to how helpful this would be; a ruling by
the ICJ on the Western Sahara has not resulted in an end to Morocco's
occupation of the territory.
11. The Government and Opposition in Gibraltar
have argued that the Treaty of Utrecht, and its provision regarding
sovereignty, has been superseded by the UN Charter, and is therefore
obsolete. It is absurd that the British Government still justifies
sovereignty of Gibraltar in terms of that Treaty, and this is
used to good effect by Spain to embarrass the United Kingdom and
Gibraltar in international fora.
The integration of Gibraltar with the United Kingdom
12. The British Government has rejected
the option of Gibraltar's integration with the United Kingdom,
with representation at Westminster, on the grounds that this would
exacerbate tensions with Spain over sovereignty. However, it continues
to enjoy popular support in Gibraltar, and would disarm Spain
of the argument that British sovereignty was a colonial anachronism.
Gibraltar's status vis a" vis the United Kingdom,
would be similar to that of Ceuta and Melilla vis a" vis
Spain, although Morocco's claim to these territories remain.
13. Curiously, while Spain has expressed
hostility to the idea of Gibraltar's political integration
with the United Kingdom, it has always expressed a strong preference
for administrative integration, with the relevant UK government
department being the "competent authority" in Gibraltar.
Spain's policy of non-recognition of anything identifying Gibraltar
as a separate entity from the United Kingdom, ranges from non-recognition
of government departments, police, customs and courts, to non-recognition
of identity documents and Gibraltar's international direct dialling
code.
14. The Government and Opposition in Gibraltar
are adamantly opposed to the idea of administrative integration
without political integration. According to the Government of
Gibraltar, allows it to demonstrate that Gibraltar is a "pure
colony", with no self-government. However, the Government
of Gibraltar acquiesced in this, in April 2000, by consenting
the redesigning of identity cards and driving licences, which
now state that the United Kingdom is the "competent authority".
There are also serious concerns that passports may similarly be
redesigned, with references to Gibraltar being deleted from the
new documents.
15. This is in spite of the fact that the
Channel Islands and the Isle of Man, which the Chief Minister
of Gibraltar has often cited as a model for a non-colonial status,
have long had such an arrangement with the United Kingdom. They
are, for example, part of the UK telephone numbering plan, integrated
into the UK postal system, and are covered by the BBC Charter
and the UK Broadcasting Act, and until recently, were under the
jurisdiction of the Home Office, before being transferred to the
Lord Chancellor's Department in June 2001.
16. The British Government has also rejected
the integration option, on the grounds that it would set a precedent
for other Overseas Territories. There is, in fact, a precedent
for integration being offered to a British colony; in 1955, the
British Government agreed to a referendum in Malta, in which its
people were to be offered three seats in the House of Commons,
and would be placed under the jurisdiction of the Home Office.
Although the 1956 referendum result was overwhelmingly in favour,
opposition from the Roman Catholic Church and disagreements with
the Ministry of Defence over finance, meant that the idea was
abandoned.
17. Under this proposal, however, the Maltese
Parliament would have retained responsibility for all affairs
except defence, and foreign affairs, with taxation eventually
being devolved when financial circumstances permitted. In the
case of Gibraltar, whose economy has long since ceased to be dependent
on the Ministry of Defence, financial aid from the United Kingdom
would be neither expected nor required.
18. A pragmatic argument put forward by
the British Government against the idea of integration with the
UK, is that Gibraltar, along with all the other Overseas Territories,
is a separate jurisdiction from the UK with its own government
and parliament, and therefore it is not appropriate for it to
be represented at Westminster. This is in contrast to the French
system of overseas departments and overseas territories, which
while enjoying all the rights and privileges of French citizenship,
are heavily dependent, politically and economically, on metropolitan
France.
19. Indeed, many people in Gibraltar oppose
integration with the UK on the grounds that it would be a backward
step, and would involve repatriation of powers currently defined
as domestic matters, to Whitehall. This is also one of the arguments
against integration with Spain, on the grounds that while different
regions enjoy considerable autonomy, none has a degree of legislative
and fiscal autonomy comparable to Gibraltar.
20. Nevertheless, it should be borne in
mind that the British constitution, unlike the Spanish one, is
not an entrenched legal document, and is therefore, better placed
to accommodate different levels of self-government. This is well
illustrated in the case of devolution in Scotland and Wales, and
indeed, previously, in the case of the Northern Ireland Parliament.
Unlike a federal system, there is no "one size fits all"
approach.
21. Even unitary states in Europe have been
able to accommodate autonomous regions. The Faroe Islands and
Greenland enjoy Home Rule within the Kingdom of Denmark, which
retains responsibility for defence, foreign policy, currency and
citizenship, but are not part of the European Union. Greenland,
in fact, left the then European Community in 1985, when it attained
Home Rule, although it continues to elect members to the Danish
parliament. Unlike Gibraltar, Greenland was able to elect its
own Member of the European Parliament.
22. The Netherlands Antilles and Aruba,
are considered to be integral parts of the Kingdom of the Netherlands,
but again, they are largely self-governing except in respect of
defence and foreign policy. They are not directly represented
in the Dutch parliament, but when it legislates for the whole
of the realm, its parliaments send delegates to speak and vote
in proceedings in both the lower and upper chambers. Each of the
dependencies, however, is represented by a Minister Plenipotentiary
in the Dutch Cabinet. In the case of Gibraltar, it might be possible
for the House of Assembly to elect one of its members as a delegate
to the House of Commons, similarly to participate in debates affecting
the territory, or at the very least, be able to petition at the
bar of that House.
23. The constitutional status of these dependencies
has not affected their development of offshore finance centres,
any more than the status of the Channel Islands and the Isle of
Man as Crown Dependencies. Although Westminster retains the right
to legislate for them as a last resort, there has been little
demand for representation. By contrast, Gibraltar may seek some
form of representation at Westminster, for political and historical
reasons. It is also unacceptable that Gibraltar should be denied
the option of political integration with the UK, while being forced
into administrative integration by Spanish non-recognition of
its institutions.
Telecommunication issues in Gibraltar
24. Gibraltar is currently experiencing
serious problems as a result of Spain's restrictions on its telephone
system. Spain has refused to recognise Gibraltar's international
direct dialling (IDD) code 350, which was first allocated by the
International Telecommunication Union (ITU) in the late 1960s.
When direct dialling between Gibraltar and Spain was established
in 1984, calls to Gibraltar from Spain could only be made using
the code for the neighbouring province of Cadiz, 9567, followed
by the five-digit subscriber's number in Gibraltar, starting with
the digits 4, 5 or 7.
25. Consequently, only 30,000 telephone
numbers in Gibraltar can be accessed from Spain, and 99 per cent
of these have been used up. This includes numbers for mobile telephones,
which cannot be used in Spain, owing to Spain's refusal to allow
its telephone companies to enter into "roaming" arrangements.
26. The non-recognition of IDD codes, however,
is not unique to the case of Gibraltar and Spain. A notable example
of this in Europe, is the dialling arrangement from the Republic
of Ireland to Northern Ireland. Instead of using the international
access code and UK country code (0044), calls are made using an
Irish area code, although it is now possible to use either. In
addition, while San Marino now has a separate IDD code from Italy
(378), it remains fully integrated into the Italian telephone
numbering plan.
27. In 1998, the European Commission proposed
to the Government of Gibraltar, that Gibraltar use the UK's IDD
code 44 which would make Gibraltar part of the UK's telephone
numbering plan. This is already the case with the Channel Islands
and the Isle of Man, although they are not under the jurisdiction
of the UK's Office of Telecommunications (OFTEL.)
28. Gibraltar's two telephone companies
reluctantly accepted this proposal, but only for calls from Spain,
on the grounds that all other countries recognised the code 350.
The Government of Gibraltar rejected the proposal outright, and
reaffirmed its position that Spain must recognise Gibraltar's
IDD code. However, in the light of the worsening problem, it has
recently stated that the use of the UK's code 44 was a possibility,
but only for calls from Spain, and only then as an interim
measure, while legal proceedings were taken against Spain by the
European Commission.
29. However, this raises questions as to
the practicality of using the UK's code 44 for calls from Spain
as an interim measure. If one were able to telephone Gibraltar
from Spain using a UK area code, then logically, this should be
accessible from within the UK, if not the rest of the world. Even
if it were not, its use for calls from Spain would undermine the
UK's recognition of the code 350, and bring the UK and Gibraltar
into conflict with the ITU over its continued use.
30. There would be considerable advantages
in Gibraltar being fully integrated into the UK telephone numbering
scheme, thereby adopting the code 44 for all calls. Telephone
calls between Gibraltar and the UK could be treated as domestic
long distance, not international, requiring only the area code
and number. Given Gibraltar's strong social, economic, cultural
and political links with the UK, this might well be to its people's
benefit.
31. However, there have been concerns expressed
as to how this would affect Gibraltar's ability to run its own
telephone system, and enter into commercial arrangements with
other countries' telephone companies. The Opposition in Gibraltar
has argued that having a separate IDD code from the UK gives it
a competitive advantage and flexibility, which would otherwise
be subject to outside control. Gibraltar has, for example, expanded
into satellite communications independently of the UK, but there
is, in fact, no relationship between IDD codes and satellite orbital
positionsa change of the former would not affect the latter.
32. However, the experience of countries
that use the North American Numbering Plan, (the United States,
Canada, and the West Indies) demonstrates that being integrated
into a common numbering plan does not mean that they have any
less competence over telecommunications, nor that they are under
the jurisdiction of the United States Federal Communications Commission
(FCC). The North American Numbering Plan Administration (NANPA)
is independent of any government agency, in the US, Canada, or
elsewhere.
33. There is also a solution that would
allow Gibraltar to be integrated into the UK's numbering plan
without abandoning the code 350, because while the ITU allocates
codes to countries (hence 44 for the UK, 34 for Spain, etc) there
are also codes allocated for international purposes, hence 800
for freephone numbers, 878 for personal numbering, and 979 for
premium rate services. There are already plans underway to create
a European Telephone Numbering Space (ETNS), which would allow
business and individuals to use the same telephone numbers throughout
Europe, prefixed with the code 388.
34. Gibraltar's code 350 could become a
pan-European code, for personal numbering, so that while one would
be able to telephone Gibraltar using the UK's code 44, one would
also be able to telephone the whole of Europe using the code 350.
This would have the effect of Spain recognising 350 for calls
to Gibraltar. Telephone users in Gibraltar would have a choice
between using the UK's code 44, or the pan-European code 350,
in much the same way as users in the UK are increasing able to
choose between geographical and non-geographical numbers. Telephone
calls within Gibraltar, however, would only require the subscriber's
number.
35. In fact, the European Commission proposed
the use of the code 350 for pan-European personal numbering, in
its 1996 Green Paper on the future of telephone numbering in Europe.
This envisaged a single European numbering plan using the code
3, with codes such as 44 for the UK, 34 for Spain, and 350 for
Gibraltar becoming redundant. However, this proposal was effectively
abandoned, as it was felt that the cost and disruption involved
would outweigh the benefits of such a scheme, although it may
be revived in the future.
36. Spain's restrictions on the expansion
of Gibraltar's telephone numbering plan, has the potential to
cause considerable damage to Gibraltar's economy, discouraging
outside investment, restrict the growth of existing businesses,
and limit the choice of services for residential customers. The
intransigence of the Spanish Government and the lethargy of the
European Commission, means that a more imaginative solution to
the problem is required. The melodramatic and pseudo-nationalist
posturing of the Government and Opposition in Gibraltar over the
code 350, is also unhelpful.
Kenneth Westmoreland
October 2001
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