Chapter 4: Implications for the sovereignty dispute
Relations under common EU membership
73.The process of Spain’s accession to the European Community in the 1980s led to renewed efforts to normalise relations between the UK and Spain, and to make progress in discussions on the status of Gibraltar. An agreement signed in Brussels in 1984 provided for:
- reciprocity of rights for Spanish people in Gibraltar and Gibraltarians in Spain;
- reduced restrictions on the movement of goods and people over the land frontier; and
- the establishment of bilateral discussions on numerous issues, including Gibraltar’s sovereignty.77
74.These talks, known as the Brussels Process, proceeded throughout the 1990s, but made limited progress. Gibraltarians, who were not directly involved in the negotiations, generally considered them to lack legitimacy. The process stalled entirely following a 2002 referendum, in which the people of Gibraltar resoundingly (by 98.97% of votes cast) rejected Spanish shared sovereignty proposals.78
75.In 2004 the UK and Spanish Foreign Ministers and the Chief Minister of Gibraltar established a new trilateral (or tripartite) Forum for Dialogue, with Gibraltar participating on an equal basis with the UK and Spain. In 2006, a meeting of the Forum in Córdoba resulted in agreements on a range of areas, including:
- payment of pensions to Spanish people who had worked in Gibraltar;
- improvements to border fluidity;
- Spanish recognition of Gibraltar dialling codes; and
- efforts to establish cross-border economic cooperation.79
In what was seen as a major step, the three parties also agreed the “lifting of Gibraltar Airport´s suspension from all EU aviation measures”, and an end to Spanish airspace restrictions on civilian aircraft using the airport.80
76.Progress continued with a Joint Declaration by the UK and Spain at the Intergovernmental Conference on the Treaty of Lisbon in 2007, which confirmed that:
“The Treaties apply to Gibraltar as a European territory for whose external relations a Member State is responsible. This shall not imply changes in the respective positions of the Member States concerned.”81
77.These trilateral talks collapsed in 2011, following the election of the Partido Popular Spanish Government, which demanded the renewal of bilateral negotiations with the UK over Gibraltar’s sovereignty.82 Relations have remained fractious ever since—reflected in varying levels of disruption at the frontier, and Spain’s return to its former position that Gibraltar should be excluded from EU aviation measures.
78.Despite the contribution of shared EU membership to improved relations between the UK/Gibraltar and Spain, the Chief Minister suggested that Spain had also used the EU to try to advance its jurisdiction in relation to Gibraltar. Mr Picardo highlighted the particular case of Spain designating a Site of Community Importance (SCI) under the EU Habitats Directive. This SCI was located in British Gibraltar Territorial Waters (BGTW), which Spain does not recognise, and clashed with a site already designated as an SCI by the UK. Even though, according to Mr Picardo, the United Nations Convention on the Law of the Sea is “abundantly clear as to the extent of British Gibraltar territorial waters”,83 the European Commission adopted Spain’s SCI, and has rejected subsequent legal attempts by the UK and Gibraltar to overturn its decision. The Government of Gibraltar told us that Spain had subsequently used the designation of this SCI to justify incursions by Spanish vessels into Gibraltarian territorial waters.84
Brexit and the sovereignty dispute
79.The Chief Minister described how, in the run-up to the referendum, Spain’s then Foreign Minister, José Manuel García-Margallo, had repeatedly called for joint-sovereignty proposals to be immediately revived, should the UK vote to leave the EU.85 Following the referendum, Mr García-Margallo described such proposals at the UN General Assembly in October 2016 as the only avenue for Gibraltar to maintain free trade and free movement with the EU after Brexit, vowing to “plant his flag” on the Rock of Gibraltar.86
80.Mr García-Margallo has since been replaced as Foreign Minister by Mr Alfonso Dastis, and Mr Picardo welcomed the fact that he had heard “very little” from Mr Dastis on the sovereignty issue. The Minister, Robin Walker MP, also suggested that Mr Dastis was taking a more “pragmatic and constructive approach.”87 However, Dr Grocott warned that, despite a more moderate tone, the message that Gibraltar will only continue to have a relationship with the EU through Spanish joint-sovereignty remained the same.88
81.The Government of Gibraltar highlighted the risk that Spain could refuse to allow discussion of Gibraltar within the wider negotiation on Brexit, and that it might demand that Gibraltar’s future be “decided on a bilateral basis between the UK and Spain”.89 However, the Chief Minister did not think that other Member States would look positively on attempts to conflate the sovereignty dispute with the Brexit process.90 In support of his stance that Gibraltar must be included in Brexit negotiations, represented by the UK, Mr Picardo has since drawn attention to an Opinion delivered by Advocate General Szpunar to the Court of Justice of the European Union in January 2017. In this Opinion, the Advocate General concluded that the UK and Gibraltar should be considered as a single Member State for the purposes of Article 56 TFEU, the freedom to provide services.91
82.Several witnesses raised the possibility of Spain holding the UK to ransom in exit talks over the sovereignty issue. The Chief Minister warned that the UK would need to be conscious of this risk from the outset, and should be prepared to “play hard ball with Spain”.92 The Government of Gibraltar also raised the concern that, after Brexit, when the UK is no longer present in Working Groups and other EU decision-making fora, Spain will be able to act with impunity in using EU law (such as that relating to Sites of Community Interest) to advance its territorial claims over Gibraltar.93
83.Ashley Fox MEP noted that the withdrawal agreement reached under Article 50 TEU will only need to be approved by the Council of the EU by qualified majority, mitigating concern over a Spanish veto. However, any future trade agreement between the UK and the EU would need unanimous support, and he suggested that “you might expect a Spanish Government to use their veto in that trade [negotiation] as a lever on … Gibraltar”.94
84.The Minister reiterated the UK Government’s commitment never to renegotiate Gibraltar’s sovereignty against the freely-expressed democratic wishes of the people of Gibraltar. He acknowledged that the UK Government would need to make it clear at the outset that Gibraltar’s sovereignty was not open for discussion, but was confident that the EU institutions and other Member States would not want the sovereignty dispute to disrupt Brexit negotiations.95
85.Mr Walker also highlighted the many positive aspects of the relationship between the UK and Spain:
“There are more than 300,000 British nationals in Spain and there were 17 million tourist visits from the UK to Spain during the first 11 months of 2016. We have very strong co-operation with the Spanish authorities in fighting crime and pursuing fugitives from British justice, and there is a considerable trade relationship; we are Spain’s ninth largest export market and the third largest investor in Spain.”
86.Mr Walker argued that this “mutual interest” would ensure that the UK and Spain both came to the negotiating table with a “focus on the pragmatic benefits … to the economy of southern Spain and to Gibraltar in negotiating an effective arrangement on the border”.96
Conclusions
87.We welcome the Government’s intention to engage positively and pragmatically with Spain, to try to secure an agreement that reflects the mutual importance of the economic relationship between the UK and Spain, and between Gibraltar and Andalusia.
88.We fully endorse the UK Government’s commitment never to enter into sovereignty discussions against the will of the Gibraltarian people. At the same time, we note the risk that Spain will seek to involve the sovereignty dispute either in the negotiations under Article 50 or in future negotiations on a UK-EU free trade agreement. The Government must be vigilant to resist any such attempt.
89.We also urge the UK Government to remain alert in the longer term to any attempts by Spain to advance its territorial claims over Gibraltar through the medium of EU laws or policies, when the UK is ‘out of the room’ after Brexit. The Government should use whatever means are available under international law to resist encroachment upon Gibraltar’s sovereignty under such circumstances.
79 House of Commons Library, Gibraltar: diplomatic and constitutional developments, Research Paper 06/48, October 2006
80 Liberal Party of Gibraltar Agreements Arrived at in Cordoba, Spain on the Airport, Pensions, Telecommunications, Frontier Flow and “Instituto Cervantes” (18 September 2006): http://www.liberal.gi/treaty-agreements.php [accessed 5 February 2017]
82 Foreign Affairs Committee, Gibraltar: Time to get off the fence (Second Report, Session 2014–15, HC 461)
86 James Badcock, ‘Spain’s foreign minister vows to ‘plant his flag’ on Gibraltar’ The Telegraph (6 October 2016): http://www.telegraph.co.uk/news/2016/10/06/spains-foreign-minister-vows-to-plant-his-flag-on-gibraltar/ [accessed 20 February 2017]
91 The Chief Minister spoke at a hearing of the European Parliament Committee on Constitutional Affairs, 30 January 2017: http://www.europarl.europa.eu/ep-live/en/committees/video?event=20170130–1500-COMMITTEE-AFCO. The Opinion was delivered on 19 January 2017 in relation to Case C-591/15: http://curia.europa.eu/juris/celex.jsf?celex=62015CC0591&lang1=en&type=TXT&ancre [accessed 3 February 2017]