Submission from Mr John Borda
GIBRALTAR
This is a report on issues affecting Gibraltar.
Some issues mentioned here are also of interest when considering
the Falkland Islands. I have not used diplomatic language, because
it important to state the truth clearly, as, in my opinion, obfuscation
has done more harm than good in the Gibraltar case.
Summary
1. Spain is not a democracy for Gibraltarian
purposes.
2. Spain has no legitimate claim.
3. Spanish initiatives relating to Gibraltar
can have negative impact elsewhere (UN, EU).
4. Spanish politicians and media frequently
slander Gibraltar.
Recommendations
1. Challenge all "abuse of veto"
exclusions at EU.
2. Resist corruption/qualification of right
to self-determination at the UN.
3. Challenge extension of "territorial
integrity" definition at UN.
4. Remove Gibraltar from UN non-self-governing
territories list.
5. Withdraw offer of ICJ mediation- unilaterally
declare matter resolved in Gibraltar's favour.
6. Extend Gibraltar's territorial waters
to 12nm.
7. Be wary of "temporary concessions"
(eg frontier flow).
8. Press for further normalization of Spain's
relations with Gibraltar, including an end to the illegitimate
claim.
9. Set up a fighting fund to prosecute those
Spanish politicians and media that slander Gibraltar.
DEMOCRACY
Spain does not formally recognise Gibraltar's
democratically elected government, nor the Gibraltarians' right
to self-determination. In addition, Spain abuses her EU veto to
exclude Gibraltar from EU legislation (legislation without representation),
and is attempting to corrupt the UN's self-determination clause
in order to exclude Gibraltarians from this fundamental human
right. As such Spain cannot be regarded as a democracy for Gibraltarian
purposes.
EU
Spain's abuse of her veto to exclude a people
and a territory she does not represent democratically is a violation
of Gibraltarians' right to be represented in the formation and
application of legislation. These exclusions should be legally
challenged in the European Court of Justice (ECJ). This behaviour
sets dangerous precedents for other disputes (eg Turkey/Cyprus).
If Spain is not happy with EU legislation, she should exclude
herself from it, not others. This is a path the UK has legitimately
taken on several occasions. No further vetoes should be tolerated.
Recommendation 1: Challenge all "abuse of veto"
exclusions at EU.
UN
Spain and Argentina are currently attempting
to undermine the right of self-determination for non-self-governing
territories (NSGTs) in the United Nations, by adding the qualification
"... except where there is a territorial dispute" to
the clause on self-determination. It does not stipulate that this
dispute should have any legal basis (which the "disputes"
over Gibraltar and the Falklands do not), and is a recipe for
chaos, as any crackpot could then follow the examples of Franco
and Galtieri and claim other NSGTs as their own! Effectively,
one person claiming a "territorial dispute" could override
the democratically expressed wishes of thousands, undermining
a fundamental democratic principle. Should the UN C24 recommend
such an amendment, a vote of no confidence must be passed.
Recommendation 2: Resist corruption/qualification
of right to self-determination at the UN.
Spain is further attempting to extend the "territorial
integrity" definition at the UN. While, as currently stated,
the clause would prevent, say, Catalonia seceding from Spain,
it did not prevent East Timor seceding from Indonesia, or prevent
the break-up of Yugoslavia or the USSR, and can be considered
irrelevant today. Spain's attempt to re-interpret it would mean
that she could re-absorb Gibraltar (which she only held for less
than 250 years, over 300 years ago) in violation of the right
of self-determination. This also could send dangerous precedents
for the former Soviet republics, Taiwan, and no doubt other places.
Recommendation 3: Challenge extension of "territorial
integrity" definition at UN.
With Gibraltar's new Constitution, designed
to be "non-colonial", Gibraltar can safely be removed
from the UN's list of NSGTs. This should be pursued vigorously,
in order to ensure Gibraltar's future political stability, and
to deny Spain a forum where she might damage the rights of millions
in order to pursue her narrow self-interest.
Recommendation 4: Remove Gibraltar from UN non-self-governing
territories list.
Territorial Mediation
For a long time, both the UK and Gibraltar have
offered Spain the option of taking their claim to the International
Court of Justice (ICJ). Spain has yet to take up the offer, in
spite of having decades to prepare a case. This is because she
does not have a case. The Treaty of Utrecht only has a "first
refusal" clause (which does not constitute a claim), which
is rendered null and void by the Gibraltarians' right to self-determination.
The UK should declare the matter resolved unilaterally in its
favour, and formally withdraw the offer, thus closing the door
on future dispute by Spain.
Recommendation 5: Withdraw offer of ICJ mediation—unilaterally
declare matter resolved in Gibraltar's favour.
Territorial Waters
Gibraltar currently has claimed 3 nautical miles
(nm) territorial seas, but could legitimately claim 12nm, as Spain
currently does. This has caused complications, such as in the
Odyssey Marine case, where Spain has acted within the 3-12nm "shadow"
(in blue in the picture) created by Gibraltar, which is effectively
"high seas", in what can only be described as acts of
piracy, illegally detaining vessels under threat of deadly force.
Spain illegally claims Gibraltar's waters as her own. The claiming
of the full 12nm of seas would prevent future acts of piracy,
(Spain does not act inside the 3nm limit, despite not recognizing
it), and secure rights to any mineral wealth and sea energy (tide,
wave and current could be harnessed for Gibraltar's future energy
needs) as well as clear the way for the salvage of the HMS Sussex.
This will need to be enforced with additional police and Royal
Navy resources, especially as the waters are on a smuggling route
from Africa.
Recommendation 6: Extend Gibraltar's territorial
waters to 12nm.
"Temporary" concessions
Many times since the frontier was opened, Spain
has promised to "improve frontier flow" to reduce the
queues into and out of Gibraltar. This has only grudgingly happened,
and can be described as a "temporary concession" as
the flow can be restricted by Madrid when it suits their politics.
"Frontier flow" should not be considered as a fair exchange
for a permanent advantage in Spain's favour. The recent telephone
normalization and the pensions resolution can be described as
permanent concessions, as they cannot be undone. It must also
be borne in mind that it is Spain's position which is abnormal
with relation to Gibraltar, so "tit for tat" concessions
may not be possible, as Gibraltar never adopted restrictions against
Spain. Thus, "normalization" is the goal of the Tripartite
process, ultimately leading to Spain dropping her illegitimate
claim to Gibraltar.
Recommendation 7: Be wary of "temporary concessions"
(eg frontier flow).
Recommendation 8: Press for further normalization
of Spain's relations with Gibraltar, including an end to the illegitimate
claim.
Racism, libel and slander
"I make a fuss about Gibraltar when
I don't want Spaniards looking at me". Gen F Franco
Spanish politicians and media frequently malign
Gibraltar, which is rarely given, and has no resources to enforce,
a right of reply. From the illegal claim flows the racist concept
that Gibraltarians have no rights, as they would be an inconvenience
to a Spanish takeover. Acts of economic sabotage (false accusations
of money-laundering, pollution, etc. aimed against the finance
centre and bunkering industries, respectively, see Annex 1,
Gibraltar Chronicle 30/1/2008 as a recent example) [252]have
created an anti-Gibraltarian attitude in Spain. A fighting fund
should be set up to contest these accusations, preferably ending
with those responsible being prosecuted by the European courts.
The punishment of some of these individuals or companies might
serve "pour encourager les autres" and reduce the number
of slurs, thus improving Gibraltar's image and viability, as well
as Anglo-Spanish relations in the longer term.
Recommendation 9: Set up a fighting fund to prosecute
those Spanish politicians and media that slander Gibraltar.
29 January 2008
252 Annex 1 referred to above has not been published
with this submission as this is a publicly available document. Back
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