APPENDIX 5
Memorandum from Dr Ken Ruiz, Sheffield
It was wonderful to see Mr Caruana on BBC Parliament,
particularly to see how he managed to run rings around the lack-lustre
performance offered by Mr Hain. If Mr Hain wonders why he has
to be so particularly careful with his form of words when referring
to anything whatsoever to do with Gib, it is because every Gibraltarian
alive today has spent the major part of his or her life with his
or her very identity under constant threat. This is supreme motivation
for becoming what in many other parts of the world would amount
to a constitutional expert. Now, take Peter Caruana QC and endow
him with the personal motivation and the result is nothing short
of magnificent.
Talking of constitutional experts, Mr Straw
wondered recently if the isthmus upon which the runway in Gibraltar
is built could be negotiated away separately from the rest of
Gib. The answer is NO, reasons below; The Treaty of Utrecht (validity
questionable, overriden by UN Human Rights, UK and Spain lacking
what it takes to get it reviewed by the ICJ) speaks of Gibraltar
and her fortifications being ceded to the UK. Now the Spanish
conveniently assume these fortifications to be the old city walls,
and indeed the fortifications INCLUDE the old city walls but are
not LIMITED to the city walls. Beyond the walls were look-out
posts shown on maps of the time, which, used by the British forces,
were also part of the fortifications. A line of such posts existed,
give or take the then standards of cartography, along the line
where the current border now stands. Therefore, the Treaty of
Utrecht DOES include the isthmus. This makes invalid Mr Straw's
assertion that the isthmus is held on different grounds as the
rest of Gibraltar.
Should that argument not convince, try this;
Even if the isthmus were to be held under separate terms initially,
the UK can lay claim to it by virtue of its continuous occupation
and development. This, like the Treaty of Utrecht, needs to be
tested in an international court of justice—if only the
UK and Spain had the courage to do so. Gibraltar, the smallest
party in all of this, the least represented (no thanks to HMG)
and the one with most to lose, is clamouring for such a test to
occur. Should that argument not convince, try this; The land which
was the isthmus is far smaller than the land that is there now.
Gibraltar has over the years seen much reclamation of land from
the sea. All of this happened after 1713. The land that has so
arisen was never part of the terms of the Treaty of Utrecht as
it did not exist at that time. That land has never been anything
else other than British land, and Spain nor anyone else can have
any sort of claim over it. It therefore need never be handed over
to anyone else other than its present masters, the Gibraltarians
(who I contend are the true and rightful owners of Gibraltar).
If the isthmus were to be "handed back" to Spain, only
the easternmost third of the runway (roughly) having been part
of the original isthmus should go, the remaining westernmost two
thirds should remain British. If that results in there being no
viable runway in Gibraltar, then all the more shame on the UK
knowing that this runway was the lifeline for Gib in the Franco
days. Given the similarity as regards Gibraltar between then and
now, it is an asset which Gibraltar cannot afford to lose.
Should that argument not convince, try this—I
am quoting the Foreign Office here, so they'd better watch out
what they choose to disregard; "As you point out, the Gibraltar
Constitution was established by the Gibraltar Constitution Order
1969. An Order in Council can be amended by another Order in Council.
As the Prime Minister told Parliament on 14 November (2001—my
addition), the Government stands by the commitment given to the
people of Gibraltar in the 1969 Constitution, assures them that
we will not agree any change in sovereignty against their freely
and democratically expressed wishes."More specifically you
ask about the terms used in preamble to Constitution Order.
1. "Gibraltar" is the Gibraltar
of 1969 (and now).
2. "People of Gibraltar" are those
referred to in the Despatch issued to the Governor on 23 May 1969
in conjunction with the making of the Constitution Order.
3. An Act of Parliament as referred to in
the preamble to the Constitution Order is the same as any other
Act of Parliament—one that has gone through all its Parliamentary
processes as a Bill and received Royal Assent.
4. The preamble means what it says: sovereignty
will not be transferred to another state against the freely and
democratically expressed wishes of the people of Gibraltar, and
Gibraltar will remain part of Her Majesty's dominions unless an
Act of Parliament otherwise provides.
So, if the Gibraltar of 1969 is the same Gibraltar
as the Gibraltar of today, and that Gibraltar of today INCLUDES
the isthmus, then the isthmus being part of Gibraltar, it (the
isthmus) cannot see any change in sovereignty (including partial
or joint sovereignty) without the assent of the people of Gibraltar,
they having expressed their assent freely and democratically i.e.
without duress or coercion, lest it be unconstitutional.
Therefore, whatever terms or arrangements or
treaties or by whatever means the isthmus is held under, be it
by the same means or different as those by which the rest of Gibraltar
is held to be British, none of it is open to being gifted by Britain
to anyone without the consent of the Gibraltarians that it should
be so.
Not only are the people of Gibraltar indivisible
from the land of Gibraltar, all of that land that is Gibraltar
is also indivisible without the consent of the Gibraltarians.
Mr Straw needs to do his homework before he
makes assertions which merely serve to inflame Gibraltarians further,
and increase their mistrust of him, now measured in negative quantities.
Dr Ken Ruiz
Sheffield
November 2001
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