Select Committee on Foreign Affairs Appendices to the Minutes of Evidence


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 positions—a 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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