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The Legal Question Of Gibraltar (Parere Pro Veritate) By Giovanni Di Stefano

On the 30thMay 2009 I was requested by an attaché to the Spanish Embassy in Hay Al Mansur St in Iraq an informal opinion on the question surrounding the territory of Gibraltar.

2             On the 31st May 2009 I published a preliminary view and informed the Spanish Embassy that generally any agreement, contract, consensus ad idem, pact, treaty is void at best voidable at worst in the event a key clause, section, article is breached.

3             On the 13th February 2011 I informed the Spanish Foreign Ministry that I would consider the position again in furtherance to what was my generic and preliminary view that I published.

4             Hereunder is a copy of the Treaty of Utrecht 13th July 1713 which governs the ceding of Gibraltar and in fact the Island of Minorca to Britain.

 

 

A TRANSLATED COPY OF THE TREATY OF UTRECHT 13 JULY 1713

The Catholic King does hereby, for himself, his heirs and successors, yield to the Crown of Great Britain the full and entire propriety of the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging; and he gives up the said propriety to be held and enjoyed absolutely with all manner of right forever, without any exception or impediment whatsoever.

But that abuses and frauds may be avoided by importing any kind of goods, the Catholic King wills, and takes it to be understood, that the above-named propriety be yielded to Great Britain without any territorial jurisdiction and without any open communication by land with the country round about.

Yet whereas the communication by sea with the coast of Spain may not at all times be safe or open, and thereby it may happen that the garrison and other inhabitants of Gibraltar may be brought to great straits; and as it is the intention of the Catholic King, only that fraudulent importations of goods should, as is above said, be hindered by any inland communications. It is therefore provided that in such cases it may be lawful to purchase, for ready money, in the neighbouring territories of Spain, provisions and other things necessary for the use of the garrison, the inhabitants, and the ships which lie in the harbour.

But if any goods be found imported by Gibraltar, either by way of barter for purchasing provisions, or under any other pretence, the same shall be confiscated, and complaint being made thereof, those persons who have acted contrary to the faith of this treaty, shall be severely punished.

And Her Britannic Majesty, at the request of the Catholic King, does consent and agree, that no leave shall be given under any pretence whatsoever, either to Jews or Moors, to reside or have their dwellings in the said town of Gibraltar; and that no refuge or shelter shall be allowed to any Moorish ships of war in the harbour of the said town, whereby the communication between Spain and Ceuta may be obstructed, or the coasts of Spain be infested by the excursions of the Moors.

But whereas treaties of friendship and a liberty and intercourse of commerce are between the British and certain territories situated on the coast of Africa, it is always to be understood, that the British subjects cannot refuse the Moors and their ships entry into the port of Gibraltar purely upon the account of merchandising. Her Majesty the Queen of Great Britain does further promise, that the free exercise of their religion shall be indulged to the Roman Catholic inhabitants of the aforesaid town.

And, in case it shall hereafter seem meet to the Crown of Great Britain to grant, sell or by any means to alienate therefrom the propriety of the said town of Gibraltar, it is hereby agreed and concluded that the preference of having the sale shall always be given to the Crown of Spain before any others.

THE LATIN VERSION:

Rex Catholicus pro se, Haeredibus, & successoribus suis, hisce cedit Coronae Magnae Britanniae plenam, integramque Proprietatem Urbis & Arcis Gibraltar nuncupatae, una cum Portu, Munitionibus, Fortalitiisque eodem pertinentibus, dictamque Proprietatem habendam, fruendamque dat absolute, cum Jure omnimodo in perpetuum, sine ulla exceptione, vel impedimento quolibetcunque. Quo vero Abusus, Fraudesque in Mercimoniis quibuscunque importandis, evitentur, vult Rex Catholicus, atque intelligendum censet, ut Proprietas supranominata Magnae Britanniae cedatur, sine Jurisdictione quapiam Territoriali, & absque Communicatione aliqua aperta cum Regione circumvicina Terram versus. Quandoquidem vero Communicatio cum Ora Hispanica maritimo Itinere omni tempore nec tuta, neque aperta esse possit, eoque fiat, ut Milites Praesidiarii, aliique Incolae dictae Urbis Gibraltaricae in summas adducantur angustias; Cumque Regis Catholici mens solummodo sit, ut fraudulentae Mercium Importationes, ut praedictum est, Communicatione Terrestri impediantur, provisum igitur est, ut Commeatum, resque necessarias in usum Copiarum Praesidiarium, Incolarum, Naviumque in Portu stantium pecunia numerata in Ditione Hispanica circumvicina, iis in casibus emere liceat. Sin vero deprehendantur Mercimonia per Gibraltariam, vel permutationis ad victum conquirendum, vel alio quocunque nomine advecta, eadem Fisco addicentur, & querimonia ea de re habita, illi qui contra Foederis hujusce fidem commiserint, severe punientur. Majestas autem Sua Britannica, rogatu Regis Catholici, consentit, convenitque, ut nec Judaeis, neque Mauris, facultas concedatur in dicta Urbe Gibraltarica, sub quocunque praetextu commorandi, aut Domicilia habendi; utque nullum Perfugium, neque receptaculum pateat Maurorum Navibus bellicis quibuscunque in Portu dictae Urbis, quo Communicatio ab Hispania ad Septam civitatem impediatur, aut Orae Hispaniae Maurorum excursionibus infestae reddantur. Cum vero Amicitiae Tractatus, & Commerciorum Libertas ac frequentia intercedant inter Britannos, Ditionesque quasdam in ora Africana sitas, intelligendum semper est, quod Mauris, eorumque Navigiis, Mercaturae solum exercendae gratia, Introitus in Portum Gibraltaricum a Subditis Britannicis denegari nequit. Promittit insuper Majestas Sua Regina Magnae Britanniae, ut Incolis praefatae Urbis Romano-Catholicis, Religionis suae liber usus indulgeatur. Quod si vero Coronae Magnae Britanniae commodum olim visum fuerit, donare, vendere, aut quoquo modo ab se alienare dictae Urbis Gibraltiricae proprietatem, conventum hisce concordatumque est, ut prima ante alios ejus redimendae optio Coronae Hispanicae semper deferatur.

 

THE SPANISH VERSION:

El Rey Católico, por si y por sus herederos y sucesores, cede por este Tratado a la Corona de la Gran Bretaña la plena y entera propiedad de la ciudad y castillo de Gibraltar, juntamente con su puerto, defensas y fortaleza que le pertenecen, dando la dicha propiedad absolutamente para que la tenga y goce con entero derecho y para siempre, sin excepción ni impedimento alguno.

Pero, para evitar cualesquiera abusos y fraudes en la introducción de las mercaderías. quiere el Rey Católico, y supone que así se ha de entender, que la dicha propiedad se ceda a la Gran Bretaña sin jurisdicción alguna territorial y sin comunicación alguna abierta con el país circunvecino por parte de tierra. Y como la comunicación por mar con la costa de España no puede estar abierta y segura en todos los tiempos, y de aquí puede resultar que los soldados de la guarnición de Gibraltar y los vecinos de aquella ciudad se vean reducidos a grandes angustias, siendo la mente del Rey Católico sólo impedir, como queda dicho arriba, la introducción fraudulenta de mercaderías por la vía de tierra. se ha acordado que en estos casos se pueda comprar a dinero de contado en tierra de España circunvecina la provisión y demás cosas necesarias para el uso de las tropas del presidio, de los vecinos y de las naves surtas en el puerto.

Pero si se aprehendieran algunas mercaderías introducidas por Gibraltar, ya para permuta de víveres o ya para otro fin, se adjudicarían al fisco, y presentada queja de esta contravención del presente Tratado serán castigados severamente los culpados.

Y Su Majestad Británica. a instancia del Rey Católico consiente y conviene en que no se permita por motivo alguno que judíos ni moros habiten ni tengan domicilio en la dicha ciudad de Gibraltar, ni se de entrada ni acogida a las naves de guerra moras en el puerto de aquella Ciudad, con lo que se puede cortar la comunicación de España a Ceuta, o ser infestadas las costas españolas por el corso de los moros. Y como hay tratados de amistad. libertad y frecuencia de comercio entre los ingleses y algunas regiones de la costa de Africa. ha de entenderse siempre que no se puede negar la entrada en el puerto de Gibraltar a los moros y sus naves, que sólo vienen a comerciar.

Promete también Su Majestad la Reina de Gran Bretaña que a los habitantes de la dicha Ciudad de Gibraltar se les concederá el uso libre de la Religión Católica Romana.

Si en algún tiempo a la Corona de la Gran Bretaña le pareciere conveniente dar, vender o enajenar, de cualquier modo la propiedad de la dicha Ciudad de Gibraltar, se ha convenido y concordado por este Tratado que se dará a la Corona de España la primera accion antes que a otros para redimirla.

5             As a matter of historic fact Gibraltar was in fact captured in 1704 during the Spanish Succession War and Spain formally ceded the territory in perpetuity to the British Crown in 1713, under the Treaty of Utrecht as cited above.

6             This was confirmed in later treaties signed in Paris and Seville, and it is fair to say that on a number of occasions Spain attempted to recapture Gibraltar without success.

7             The position of Minorca is of importance for the purposes of this opinion.

8             Minorca is part of Spanish territory and it takes its name from the island close by Palma de Majorca. The Minoans and Crete’s were known inhabitants but by the end of the Punic wars the biggest problem facing Minorca came from pirates.

9             The Roman occupation saw considerable trade between Spain and Italy and with trade a substantial colony of Jews.

10          By 120 BC both Majorca and Minorca were part of the Roman Empire.

11          In the 13th Century Emperor Augustus formed a governorship of the Balearic Islands but the island had a substantial proportion of inhabitant Jews all who took advantage of trade between Italy and Spain.

12          By AD400 a Catholic Bishop forced upon the Jewish population a forced conversation but the majority converted willingly owing to the substantial benefits derived from the trade and the church.

13          Many Jews remained within the Jewish faith while outwardly professing Christian faith. Some of these Jews formed part of the community.

14          When Minorca became a British possession in 1713, the British willingly proffered an asylum to thousands of Jews from Africa and those families that had been converted could be restored to their faith. The British even built a synagogue for the Jews much against the wishes of the Spanish.

15          It was this very issue that led to the important clause in the Treaty of Utrecht which becomes fundamental for the purposes of this opinion.

16          The fifth century saw the Moors invade and became an Islamic State. Until the 13thCentury Minorca was part of the Kingdom of Majorca.

17          In the 16th Century it became part of Turkey but by 1708 it was occupied by Britain’s Royal Navy and of course formally ceded in 1713.

18          A naval base was established and a British Governor appointed.

19          Spain regained the island of Minorca in 1756 and Spain permitted the British to leave even placing at their disposal transport to depart the island.

20          However, by 1763 Britain once again returned to occupy the Island of Minorca wholly contrary to the terms agreed on the 29th June 1756. Minorca thus was back in the hands of Britain in violation of an agreement returning the Island to Spain.

21          In 1782 during the America War of Independence with a combined army of Spanish and French troops the British were again removed from Minorca.

22          In 1783 Britain legally ceded Minorca back to Spain under the Treaty of Versailles by which Britain lost 13 of its colonies in favour of peace.

23          In 1798 in complete violation of the Treaty of Versailles (1783) Britain taking full advantage of the French Revolution invaded Minorca once again but it was finally and permanently repossessed by Spain by the terms of the Treaty of Amiens in 1802.

24          The Balearic Islands were not occupied by the French during the Peninsular War and in fact protected by the Royal Navy.

25          For the sake of completeness during the Spanish Civil War the Island of Minorca supported the Republican Spanish Government whilst Majorca openly became key allies of the Nationalist Movement led by General Francisco Franco.

26          The short history of Minorca is important to note when considering the question of Gibraltar and the conduct of the British and their attitude towards respecting Treaties.

27          In 1713 two key concerns of Spain were (i) Jews and (ii) the Moors since history had made clear neither were welcome near its territory.

28          In signing the Treaty of Utrecht 1713, which it follows a substantive part was violated by the British, the Spanish King ensured two key clauses that were fundamental to the Treaty and which having researched the history became ‘take it or leave it’ clauses notwithstanding the weakened position Spain found itself at that time.

29          One such clause involved (i) “that no refuge or shelter shall be allowed to any Moorish ships of war in the harbour of the said town” and more important (ii) “And Her Britannic Majesty, at the request of the Catholic King, does consent and agree, that no leave shall be given under any pretence whatsoever, either to Jews or Moors, to reside or have their dwellings in the said town of Gibraltar.”

30          The key phrase being in (ii) “that no leave shall be given under any pretence whatsoever, either to Jews or Moors.”

31          In the 1960s General Francesco Franco asserted his claim over Gibraltar even to the extent of considering the possibilities of military occupation but was dissuaded into using diplomatic methods when the British Prime Minister Harold Wilson in a secret memorandum undertook to do all he could to ensure that Gibraltar would be returned to Spain.

32          General Francisco Franco accepted such personal undertaking and the Spanish Military were stood down.

33          On the 16th December 1965 the UN General Assembly approved Resolution 2070 which permitted the occupants of Gibraltar a referendum on whether to remain a protectorate of the British Government or to be returned to Spain.

34          General Francisco Franco’s Foreign Minister Fernando Castiella offered a solution whereby by mutual consent:- (i) The Treaty of Utrecht 1713 would be cancelled and thus Gibraltar returned to Spain, (ii) The presence of the British base in Gibraltar, its use being subject to a specific Anglo-Spanish agreement and (iii) A “Personal Statute” for Gibraltarians, under a United Nations Umbrella and guarantee, protecting their cultural, social and economic interest in Gibraltar or anywhere else in Spain, including their British nationality. An “appropriate [..] Administrative formula” should be also agreed.

35          The options in the referendum were: – (i) To pass under Spanish sovereignty in accordance with the terms proposed by the Spanish Government to Her Majesty’s Government on 18 May 1966; or (ii) Voluntarily to retain their link with Britain, with democratic local institutions and with Britain retaining its present responsibilities.

36          The predicted results were in favour of retaining British links and in 1969 a new Constitution was passed.

37          The British Government has ruled out both the independence of Gibraltar and its ‘integration’ within the United Kingdom.

38          The British Attorney General in 1976 made clear that integration would necessarily require the consent of the Spanish Government which, quite correctly assessed, would never be forthcoming.

39          On the 26th June 1976 the Labour Government headed by James Callaghan, owing to the sudden resignation of Harold Wilson on the 5th April 1976, published a memorandum rejecting de jure and de facto integration with the United Kingdom.

40          It was a concession that was offered by the British Government to a newly governed Spain that had seen General Francisco Franco pass away in November 1975.

41          The Treaty of Utrecht 1713 of course makes no mention of territorial waters. As such my opinion in 2009 remains the same that the territorial waters around Gibraltar are and will always be under the jurisdiction of Spain.

42          Prior to 1982 the jurisdiction of territorial waters was always agreed as 3 nautical miles, almost 6 km, in 1982 the UN Convention on the Law of the Sea was accepted by all countries and it became de facto effective in 1995.

43          The new Convention extended the territorial waters to 12 nautical miles almost 22 km. In ratifying the UN Convention, Spain quite correctly stated the following: “In ratifying the Convention, Spain wishes to make it known that this act cannot be construed as recognition of any rights or status regarding the maritime space of Gibraltar that are not included in article 10 of the Treaty of Utrecht of 13 July 1713 concluded between the Crowns of Spain and Great Britain. Furthermore, Spain does not consider that Resolution III of the Third United Nations Conference on the Law of the Sea is applicable to the colony of Gibraltar, which is subject to a process of decolonization in which only relevant resolutions adopted by the United Nations General Assembly are applicable.”

44          Britain ratified the Convention with the following caveat: “With regard to point 2 of the declaration made upon ratification of the Convention by the Government of Spain, the Government of the United Kingdom has no doubt about the sovereignty of the United Kingdom over Gibraltar, including its territorial waters. The Government of the United Kingdom, as the administering authority of Gibraltar, has extended the United Kingdom’s accession to the Convention and ratification of the Agreement to Gibraltar. The Government of the United Kingdom, therefore, rejects as unfounded point 2 of the Spanish declaration.”

45          The Government of Gibraltar for its part holds that there is no economic or social need for more than three nautical miles of territorial water.

46          In 2008, the European Commission included most of the territorial waters that surround Gibraltar under a marine conservation area known as the “Estrecho Oriental” that will be maintained by Spain.

47          Britain initiated legal proceedings against Spain on the issue of territorial waters, a matter upon which in May 2009 I delivered my preliminary views to the Spanish Embassy in Iraq, but as I understand it the General Court rejected the application on erroneous procedures adopted by the British Government and its then lawyers.

48          I understand that in June 2011 the European Court dismissed the application stating it was “inadmissible on procedural grounds.”

49          In May of 2009 the urgency for Spain was the resolution of the question of the territorial waters which this has now been, to some extent, resolved.

50          In 2002 the then Foreign Secretary, Jack Straw, in a formal statement in the House of Commons, said that after twelve months of negotiation the British Government and Spain are in broad agreement on many of the principles that should underpin a lasting settlement of Spain’s sovereignty claim, which included the principle that Britain and Spain should share sovereignty over Gibraltar.

51          The question that would be posed to Gibraltar would be as follows: “Do you approve of the principle that Britain and Spain should share sovereignty over Gibraltar?”

52          Gibraltar rejected the idea outright.

53          There have been a number of issues from 2000 the most serious being the presence of a nuclear submarine in the port of Gibraltar which of course in any safety exercise should have been notified to the Spanish Government as it endangered the quarter of a million Spanish citizens living in the Campo De Gibraltar.

54          Both the British and Spanish Government did agree however, that the two referendums carried out had no legal significance since it was only canvassing the views of the citizens.

55          It is without doubt the undertaking given by Harold Wilson to General Francisco Franco was binding and Spain had a legitimate expectation for the return of Gibraltar.

56          That Harold Wilson resigned suddenly thus making his undertaking unenforceable by virtue of the fact he was incapable of enforcing such as he was no longer Prime Minister was and remains an unethical way of revoking an undertaking between two leaders.

57          Britain has on a number of occasions violated the Treaty of Utrecht and others regarding Minorca.

58          The key wording on the Treaty of Utrecht makes it crystal clear as per (29) and (30) that “that no leave shall be given under any pretence whatsoever, either to Jews or Moors.”

59          In 1721 a Treaty was signed between Britain and Morocco which guaranteed the right of Jews to live in Gibraltar. It was a Treaty between Britain and Morocco and was not approved by Spain.

60          The wording of such is as follows: “The subjects of the Emperor of Fez and Morocco, whether Moors or Jews, residing in the dominion of the King of Great Britain, shall entirely enjoy the same privileges that are granted to the English residing in Barbary.”

61          In 1726 Spain claimed that Britain had violated the Treaty of 1713, because she had permitted Jews and Moors, enemies of the Catholic religion, to reside in the city.” This claim became a pretext for Spain’s attack on Gibraltar, a siege that lasted from 1726 to 1727.

62          In 1749, Gibraltar’s first rabbi or chacham, Isaac Nieto, came from London to found the first synagogue, Shaar Hashamayim, which is still in use today and remains in clear violation of the Treaty of Utrecht.

63          Far from respecting the Treaty of Utrecht on the issue that was a key factor the British Government not only violated such but encouraged such violation.

64          As the Jewish community grew, in clear violation of the Treaty of Utrecht, more synagogues were built: Nefutsot Yehuda (one of the most beautiful and richly decorated of Gibraltar’s synagogues) in 1781; Etz Hayim in 1781; and Abudarham in 1820.

65          During World War II, Gibraltar was an indispensable part of Allied strategy. Since Gibraltar guarded the entrance to the Mediterranean, any convoy of supply ships trying to reach Malta or Egypt had to pass Gibraltar.

66          Although General Francisco Franco was a ‘friend’ of Hitler he did not permit Germany to use Spain or to occupy Gibraltar and on an undertaking from Winston Churchill that the question of Gibraltar would be ‘settled’ as soon as the War was over General Francisco Franco extended an invitation to any Jew of Sephardic origin to come to Spain for protection.

67          He told Churchill that the very Treaty of Utrecht 1713 could be used to protect Jews by placing them in a neutral country and where in any case by law they were not allowed to settle.

68          As a result the majority of Gibraltar’s Jews were evacuated during the War and saved from the clutches of the concentration camps.

69          This was on the strict condition and understanding between Churchill and General Francisco Franco that the question of Gibraltar would be settled immediately after the war.

70          By allowing Jews the safe haven of Spain, General Franco made clear that this was in order to assist Britain’s compliance with the Treaty of Utrecht.

71          Winston Churchill lost the election post-war and was not able to deliver upon his undertaking. It would be the first of two undertakings that General Francisco Franco would rely and not carried out by Britain.

72          After the War some of the Jews that had found a safe haven in Spain returned to Gibraltar in contravention of the agreement with Churchill and contrary to the Treaty of Utrecht.

73          There is today a thriving Jewish Community which resides in Gibraltar in open contravention of the Treaty of Utrecht.

74          Whilst it would not be a popular or sympathetic ratio in revoking the Treaty of Utrecht and occupying Gibraltar, de jure Spain would be within its lawful rights of exactly such in the same manner that Britain has reneged a number of occasions in history and used military force. Minorca is but one example.

75          Both Winston Churchill and Harold Wilson gave undertakings to General Francisco Franco that for separate reasons were not maintained regarding the question of Gibraltar.

76          De jure Britain is in clear violation of the Treaty of Utrecht 1713 by not only permitting but encouraging the Jewish Community in Gibraltar.

77          Britain made it clear in the Treaty of Utrecht that “that no leave shall be given under any pretence whatsoever, either to Jews or Moors.”

78          This is a clear key violation and Spain is entitled to enforce its agreement under the Treaty of Utrecht in any way it deems appropriate.

79          A military campaign cannot be excluded in the same manner that Britain has in its history with Spain reneged on Treaties by military force.

80          The purposes of this opinion however, involve jurisprudence but if asked whether a military option would be contrary to international law, on the basis as above I would reply in the negative.

81          I would however, forcibly advice this matter to be restored to the United Nations Security Council prior to any unilateral military action taken.

82          I am aware that the British Government as it stands today may not be aware of the position adopted by Harold Wilson and Winston Churchill and neither am I certain the citizens of Gibraltar aware of the decision taken by General Francisco Franco, at great risk to himself and Spain, on harbouring Jews during the Second World War.

83          The Spanish Government should use all diplomatic methods on the return of Gibraltar to Spain and should ensure the British, Spanish and Gibraltar citizens are made aware fully of the undertakings given by two British Prime Ministers.

 

 

GIOVANNI DI STEFANO

March 2012

Originally published in previous site 6 August 2013

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