Submission from The Hon Joe Bossano, Leader
of the Opposition, Gibraltar
I apologise for the delay in making these submissions
to your committee following the recent general elections here
and I am pleased that you will still be able to take our views
into consideration.
I write on behalf of the official GSLP/Liberal
Opposition in the Parliament of Gibraltar.
There is one specific issue relating to the
status Gibraltar into which we would welcome your committee's
investigation.
1. THE BACKGROUND
In 1997, a seminar was organised in Gibraltar
by the Self-determination for Gibraltar Group entitled "The
Channel Islands Option". This was addressed by the leaders
of the three main political parties in the territory. A consensus
view was expressed by all three parties around the table for a
decolonised status for Gibraltar similar to that of the Channel
Islands.
The moves to obtain a new constitution for Gibraltar
stem from this seminar which took place in 1997 and not from the
Foreign Office White Paper which came about two years later in
1999.
In July 1999, a Select Committee of the Gibraltar
House of Assembly was established in order to formulate proposals
for constitutional reform. I was a Member of this Committee along
with my colleague Dr Joseph Garcia.
The Opposition participated on this Committee
on the basis that the decolonisation of Gibraltar was the single
most important objective of the process.
The Select Committee reported to the full House
of Assembly in early 2002.
In Page 2 of its report, the Select Committee
concluded:
"The Committee's approach has been guided
by its unanimous view that reform of the Constitution should achieve
both a suitable modernisation of the relationship with the United
Kingdom (with consequential and enhanced powers of self-government)
and that these reforms should, when and if accepted by the people
of Gibraltar in a referendum, bring about the decolonisation of
Gibraltar through the exercise of the right to self-determination
by the people of Gibraltar, and Gibraltar's subsequent delisting
from the UN's list of Non Self Governing Territories maintained
under Article 73(e) of the Charter". (Annex 1)[235]
The Premable to the Constitution, as proposed
by the Gibraltar House of Assembly unanimously, included a second
paragraph which read as follows:
"AND whereas the people of Gibraltar have
accepted the Constitution annexed to this Order in an act of self-determination
and Gibraltar can therefore be deemed to have attained the fullest
possible measure of self-government". (Annex 2)[236]
This wording was compliant with the requirement
and procedure of the United Nations and had been inserted with
decolonisation in mind.
The text of the new Constitution was formally
submitted to the United Kingdom in December 2003. Negotiations
were held between a cross-party Gibraltar delegation and a UK
Government delegation in 2004, 2005 and 2006.
2. THE 1999 WHITE
PAPER AND
THE FOURTH
OPTION
The Foreign Office 1999 White Paper "Partnership
for Progress and Prosperity" says the following on Gibraltar:
"The British Government policy is clear
and long-standing; it supports the principle or right of self-determination
but this must be exercised in accordance with the other principles
or rights in the United Nations Charter as well as other treaty
obligations. In Gibraltar's case, because of the Treaty of Utrecht,
this means that Gibraltar could become independent only with Spanish
consent". (Annex 3)[237]
The view of the UK Government, as stated in
the White Paper, is that independence is the ONLY option which
it is not possible for Gibraltar to attain without Spanish consent.
It makes no mention of the other three options, which are integration,
free association or a tailor-made solution.
The Select Committee report, in any case, did
not propose independence. It proposed a new international status
for Gibraltar under the so-called Fourth Option enshrined in UN
Resolution 2625(XXV) whereby a territory can be decolonised through
a tailor-made formula. (Annex 4)[238]
In Page 3 of its report, the Select Committee
of the House of Assembly said:
"In respect of this last matter, and while
there is no specific amendment or provision in the Constitution
to reflect this, the Committee (as well as a significant majority
of those making representations) felt that the people of Gibraltar
should achieve decolonisation by electing, as is reflected in
the proposed reformed Constitution, the so-called `Fourth Option',
which has been identified by the United Nations as one of the
acceptable ways of achieving this". (Annex 5)[239]
However, it became apparent during the negotiations
that the United Kingdom position went further than the letter
of the 1999 White Paper. In reality all options for the decolonisation
of Gibraltar, and not just independence, were being ruled out
unless such an option had the consent of Spain.
This was reflected very clearly in the controversy
that ensued around the second preamble.
3. THE SECOND
PREAMBLE
The text of the second preamble was discussed
at the very start of the talks with UK in 2004. The lead UK negotiator
at the time, the FCO Director for Europe Mr Chilcott, stated then
that determining whether the maximum level possible of self-government
had been attained would be a judgement reserved for the end of
the process. He added that there was an added difficulty which
was Spain's reaction. Mr Chilcott added that this would be a judgment
for Ministers at the end of the process and that they needed to
be comfortable with the language aimed at UN delisting.
In 2005, at the second meeting of the negotiating
teams in Gibraltar, the Opposition again asked the UK team whether
any thought had been given to the fundamental issue of decolonisation.
The answer was that Ministers had not yet been briefed, and that
in any case it was important to know beforehand what level of
constitutional changes had been tentatively agreed and this would
not happen until the talks had concluded.
It was not until the end of the process, on
17 March 2006, that we were told at the last session of the last
meeting on the last day that UK Ministers would not agree to include
in the Preamble words saying that the proposed referendum would
be the exercise of our right to self-determination or that the
new Constitution provided the maximum level possible of self-government.
This answer was not compatible with the answers
we had received in the first two meetings in 2004 and 2005.
Given that the impression was created that the
issue could be one of wording rather than substance, the Opposition
Members on the Committee submitted a new draft text for the second
preamble which did not include the word "self-determination".
This text used different terminology with the same result.
In a letter dated 28 March 2006 to the Chief
Minister, the then Foreign Secretary Jack Straw indicated that
the UK was not inclined to agree preambular language for the Order
in Council until after the Referendum had taken place. (Annex
6)[240]
When this was communicated to the Opposition
Members of the Committee, we took the position that we were not
prepared to support the new Constitution without the second preamble.
It was essential to us that the United Kingdom recognised that
the referendum was an act of self-determination which gave Gibraltar
the maximum degree of self-government.
On 27 March, in a statement to Parliament, the
then Foreign Secretary Jack Straw said that "Gibraltar will
remain listed as a British Overseas Territory in the British Nationality
Act of 1981, as amended by the British Overseas Territory Act
2002". (Annex 7)[241]
On 28 March 2006, in an exchange of letters
with Jack Straw, the Spanish Foreign Minister Miguel Angel Moratinos
noted that "neither the text of the constitution nor the
planned referendum have any effect on the pending process of decolonisation,
under the mandate of the United Nations". The Spanish Foreign
Minister added: "I take note that this new constitution does
not alter the international status of Gibraltar in any way, which
remains a British Overseas Territory ..." Mr Moratinos made
it clear that for the Spanish Government the vote in the referendum
and the exercise of the rights envisaged in the text of the constitution
were merely the democratic expression of the inhabitants of Gibraltar
to provide for themselves a more modern and efficient administration.
(Annex 8)[242]
Although Jack Straw replied to this letter,
the claim made by Spain, that the new constitution would leave
Gibraltar's international status unchanged, were not contested
by HMG at the time or ever since. The United Kingdom has instead
preferred to concentrate on describing the relationship between
Gibraltar and the UK as "modern" and "non-colonial"
in nature.
However, it is essential to understand that
the Gibraltar-UK relationship is one thing, and Gibraltar's status
in international law is something completely different.
At the beginning of May, Margaret Beckett replaced
Jack Straw at the Foreign Office, and the affairs of Gibraltar
came to be handled by the new Europe Minister Geoff Hoon.
On 24 May, the Spanish Government declared that
the wording of the proposed second preamble could throw the tripartite
process over Gibraltar into "disarray, back to square one".
(Annex 9)[243]
On 4 July 2006, Geoff Hoon, in answer to a parliamentary
question, confirmed that "the new Constitution provides for
a modern and mature relationship between the UK and Gibraltar.
I do not think that this description would apply to any relationship
based on colonialism". He reaffirmed that it had been the
UK's longstanding view that none of its remaining Overseas Territories,
including Gibraltar, should remain on the UN list of Non Self
Governing Territories, and added that the criteria used by the
UN are outdated and failed to take into account of the way in
which relationships between the territories and the UK have been
modernised. "The UK does not, therefore, engage formally
to seek the removal of any of the Overseas Territories from the
UN list". This statement confirmed that the referendum in
Gibraltar would be an act of self-determination. (Annex 10)[244]
The second preamble to the new constitution
was agreed with the following wording:
"And whereas the people of Gibraltar have
in a referendum held on XXX freely approved and accepted the Constitution
annexed to this Order which gives the people of Gibraltar that
degree of self-government which is compatible with British sovereignty
of Gibraltar and with the fact that the United Kingdom remains
fully responsible for Gibraltar's external relations". (Annex
11)[245]
Under Article 73 of the Charter of the United
Nations, the UK, as the administering power for Gibraltar, is
bound to submit an annual report which details the progress which
Gibraltar is making on the road to full self-government. It is
not clear why the United Kingdom continues to report to the UN
when according to Gibraltar's new constitutional preamble, we
already enjoy that degree of self-government which is compatible
with British sovereignty.
4. THE CONSENSUS
DECISION
The United Kingdom and Spain agreed the text
of a consensus decision on Gibraltar which was approved by the
4th Committee of the United Nations (Political and Decolonisation)
on 24 October this year. This goes to the General Assembly in
December.
The consensus decision urges the UK and Spanish
Governments to reach a definitive solution to Gibraltar's decolonisation
in the spirit of the Brussels Agreement of 1984, while at the
same time listening to the interests and aspirations of Gibraltar.
This is practically identical to the text that
was agreed last year before Gibraltar's new Constitution came
into effect.
It is clear that notwithstanding that the 2006
referendum and constitution created a modern and mature relationship
with Gibraltar, which UK claims cannot be said to be based on
colonialism, HMG's position at the United Nations has not changed.
A verbal statement was given this year explaining
the UK position for the record. This does not, in any case, alter
the consensus decision which remains the same. This limited itself
to saying that the UK would not proceed down the route of coming
up with definitive solution to Gibraltar's decolonisation, as
they are urging themselves to do in the consensus decision, unless
Gibraltar was content that UK should do so.
The continuation of the UN consensus decision
with Spain on Gibraltar does not make any sense and should have
been discontinued by the HMG. It is essential to establish why
this has not happened and why the consensus continues as if the
referendum and the new constitution had not existed. (Annex 12)[246]
5. THE INTERNATIONAL
STATUS OF
GIBRALTAR
It is therefore essential that your inquiry
into Gibraltar establishes beyond doubt and with no equivocation
whether the international status of Gibraltar has changed, or
whether that status remains the same after the new constitution
came into force as it had been before.
We have not been able to establish this point
beyond any doubt to date. Indeed, this was one the reasons why
we recommended a free vote during the referendum to approve the
constitution that took place in November 2006. While the text
of the constitution had been agreed by us, there was profound
disagreement as to what that text represented once it was implemented
in terms of the status of Gibraltar in international law. This
point is fundamental and it should be cleared up.
I request that I be given an opportunity to
expand on this by giving oral evidence to the Committee in addition
to this letter, and in this way answer any questions that you
may have. In particular I wish to address you on the question
of the United Kingdom's position in completing the decolonisation
process so that it ceases to have a requirement under Article
73(e) of the Charter.
8 November 2007
235 Not printed, as publicly available. Back
236
Not printed, as publicly available. Back
237
Not printed, as publicly available. Back
238
Not printed, as publicly available. Back
239
Not printed, as publicly available. Back
240
Not printed, as publicly available. Back
241
Not printed, as publicly available. Back
242
Not printed, as publicly available. Back
243
Not printed, as publicly available. Back
244
Not printed, as publicly available. Back
245
Not printed, as publicly available. Back
246
Not printed, as publicly available. Back
| 
