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Gibraltar on the Rocks

Sunday, December 1, 2002

Protests, jeers, and curses greeted British Foreign Secretary Jack Straw on a May 3, 2002 visit to Gibraltar. In view of Britain’s role as administering power and de facto protector of the small but strategic Mediterranean territory — and in view of the overwhelming pro-British sentiment of the local government and inhabitants — such tumult seized media attention in Europe. It hardly garnered a column-inch, however, in America. One of the last remnants of the far-flung British Empire, Gibraltar and its fate nonetheless possess considerable significance for the United States. How Prime Minister Tony Blair and his Labour cabinet are addressing Gibraltar should therefore receive attention within the Beltway appropriate to the ranking foreign and security policy issues of the day.

The Gibraltar problem

Quintessential symbol of tenacity and independence, the Rock — the moniker derives from Gibraltar’s unmistakable geological profile — belonged to Spain from the Reconquista through the War of the Spanish Succession. Britain in 1704 conquered the territory, guardian of the straits that link the Atlantic to the Mediterranean, and Spain confirmed the shift of fortune with a treaty signed at Utrecht in 1713, granting Britain sovereignty in perpetuity. Over time, Gibraltar would serve the British as an indispensable naval (later, air) base, and its population, a mix of peoples from the British Isles and Mediterranean — including Sephardic Jews expelled from Morocco — took on a distinctive character. English-speaking and governed by quintessentially British institutions, the Gibraltarians now thrive as a civilian economy centered around shipping and financial services.1

Regrettably, however, their territory has become an object of European horse-trading. Talks over its future have stopped and started in halting fashion for decades but received new impetus this year from a desire at 10 Downing Street to cut a deal with Spain. Tony Blair apparently believes that handing over the territory to Spain — and thus placating a nationalist hue and cry among certain constituents there — could purchase an alliance with Madrid, in turn useful perhaps in the internal struggles of the European Union. The problem confronting the prime minister in his hoped-for exercise in Brussels realpolitik lies in the Gibraltarians themselves. They have made plain their devotion to sovereignty through referenda, protests, and government policy — and just as plain that they want nothing to do with Spain.

The Treaty of Utrecht is an instrument on which, ironically enough, Spain in some part bases its claim to Gibraltar. Though the treaty ceded Gibraltar to Britain in perpetuity, its tenth article provided that, in the event that Britain relinquished Gibraltar, Spain would have the right to reclaim possession. On a number of occasions, Spain attempted to take Gibraltar back by force, carrying out a siege from 1779 to 1793. All Spanish exertions in that direction failed, as Gibraltar developed its reputation as the British Empire’s impregnable redoubt. Yet Spain continued to pursue what grew into a national ambition to retrieve the lost territory, albeit more recently by diplomatic means and sanctions rather than military aggression.

Resolution 2429, adopted by the United Nations General Assembly in 1968, determined that the United Kingdom should relinquish sovereignty over Gibraltar and allow Article x of the Treaty of Utrecht to effect retrocession to Spain. The United Kingdom expressed the view that Resolution 2429 violates Article 73 of the United Nations Charter, which provides for the primacy of the wishes of the inhabitants of a non-self-governing territory in determining the disposition of the territory. A referendum in September 1967, in which over 95 percent of the electorate voted, showed 44 Gibraltarians preferring incorporation into Spain and 12,138 favoring continued association with Britain.

The 1969 constitution of Gibraltar reaffirms the Gibraltarians’ right to self-government and institutionalizes it. Under the constitution, a 15-member House of Assembly is elected by universal adult suffrage and possesses budgetary and other authorities. The party commanding a majority of the assembly’s members heads the territory government. Peter Caruana has held the post of chief minister since 1996. Joseph Bossano, chief minister from 1988 to 1996, leads the opposition. The constitution provides that “Her Majesty’s Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes.”

Spain has rejected the 1969 constitution as inconsistent with the right of a state to preserve its territorial integrity. Madrid also views the 1967 referendum as an illicit attempt to alienate Gibraltar from Spain and thus as an exercise devoid of legal consequence.

From 1964 to 1985, Spain enacted a number of restrictions apparently intended to inconvenience and isolate the Gibraltarians. Delays in the border crossing between Gibraltar and Spain began in 1964, and in October 1966, Spain closed the frontier to vehicular traffic altogether. After May 1968, pedestrians could cross only with special permission from Spanish military authorities. Shortly after publication of the new constitution, Spain closed the border completely and suspended ferry service from the nearby Spanish town of Algeciras. In consequence of these measures, Spanish laborers withdrew from Gibraltar, eventually to be replaced by Moroccans. Food, water, and building materials no longer were imported from Spain. Telephone and postal links were severed.

Spanish accession to the European Community eased the restrictions against Gibraltar. With Britain’s own accession in January 1973, Gibraltar became part of the community under Article 227(4) of the Treaty of Rome (article 229(4) in the revised numbering), which provides that any territory the external affairs of which are the responsibility of a member state belongs to the community. The 1984 Brussels Agreement between Spain and the United Kingdom provided that Spain would lift the blockade against Gibraltar — a concession that the United Kingdom required in order to permit Spain to accede to the community. On February 5, 1985, Spain lifted most of the restrictions on land crossings. At present, the ban on air and maritime links remains. Spain also imposes a limit on the number of telephone lines available in Gibraltar, a further, if circumscribed, extension of the 1960s policy of isolating the territory. The Gibraltarians nearly unanimously continue to hold that these measures violate their right to self-governance and that they will not countenance incorporation into Spain.

The American interest in what well might seem an obscure colonial controversy in Europe goes well beyond principles of self-determination, however high those, too, rank in American foreign policy. A host of diverse but interrelated questions arise from the Gibraltar question. They span an extraordinary breadth, from strategic air and sea space and free markets to the future of Taiwan, the legal status of slavery reparations claims, and even national missile defense. Addressing Gibraltar without the requisite perspicacity will erode the interests of the United States — both through precedent-setting of an indirect but dangerous nature and through concrete shifts in strategic politics against manifest military and economic needs.

Defense, security, and access

America late in the evening of April 14 and early in the morning of April 15, 1986 carried an earlier war against terrorism to Libya. Though carrier-based forces in the Mediterranean played a role, military planners knew that to bring effective force to bear they would have to recruit land-based aircraft from Britain. The most direct routes from Britain to the target traversed French airspace, but France refused to allow overflight — a policy decision much noted by Americans at the time. Less noted was Spain’s simultaneous refusal of overflight of its territory — thus barring the best routes left after France balked.

The refusal of overflight by Spain came as little surprise to those familiar with the country — which, after all, persistently had experienced (and still experiences) periodic outbreaks of anti-American sentiment, much more in the Mediterranean than the transatlantic mode. To be sure, in Prime Minister José María Aznar the United States has found a stalwart friend. Aznar’s aid in the war against terrorism stands out in a hesitant Europe. But coalitions come and go, so when assessing longer-term risk it is important to consider the underlying political strata on which Spanish governments rest. Spain, though in broad outline a friend, contains sufficient political complexities to raise questions about the wisdom of letting indispensable air and sea-lanes and the rock astride them go to Spanish jurisdiction. Spain did not lend a helping hand at an important juncture before, and the prevailing political culture there would counsel prudence about its future conduct.

Britain in 1986, of course, granted use of U.S. bases in its territory — and extended overflight rights to U.S. aircraft over Gibraltar. Circumventing uncooperative France and Spain, the planes reached their North African targets. Without Gibraltarian access, to be sure, the logistics of that crucial demonstration of resolve would not necessarily have been impossible. The legal status of the Gibraltar Straits as an international waterway may well have saved the day. But enforcement of international law has proved a fraught exercise more than once in the past, and American strategists are rightly loath to count on uncertain “allies” to enforce rights at law, however widely recognized those rights may be. Gibraltar in the hands of our most certain ally — whether through a continuation of its dependent status or its inauguration as an independent state in special association with the uk — constitutes good strategic insurance.2

The implications for Taiwan

The importance of Gibraltar to American interests presents itself far beyond the obvious arena of military geography. Indeed, the impact of the last colonial controversy of the European continent reaches into what initially may seem the unlikeliest places. Perhaps first among these is Taiwan.

The People’s Republic of China (prc) demands control over Taiwan. In this seemingly nonnegotiable position, the prc draws from the same legal well as Spain in demanding Gibraltar. Both argue that the doctrine of territorial integrity trumps the right of self-determination, so Taiwanese and Gibraltarians alike can have no say in what happens to the lands they call home. The final disposition of the two territories, in the Chinese and Spanish views, is automatic, not democratic. And the automatic result that their reading of the law and history dictates is reversion.

Territory in an international context, however, is no longer a thing to be traded freely without reference to the rights of incumbents well-installed there or disposed of according to ancient parchments. Rights to territory with no existence outside the abstraction of treaties or historical arguments do not translate into a case for contemporary control. In the modern understanding, where an old claim has had no practical reality on the ground for a very long time — admittedly, international law leaves uncertain exactly how long — it seldom, if ever, can spring up to claim some afterlife. The Beijing and Madrid views are archaic and run against modern international law.

They also, intertwining, reinforce one another. Giving in to Spain’s claim to Gibraltar bolsters Beijing’s most intransigent demands over Taiwan, even possibly provoking an aggressive lurch where America wisely has long urged care and tact. Anybody doubting whether China would notice the fate of the rock should recall that Beijing’s lawyers and strategists watched carefully to see what happened to Argentina’s similar territorial integrity arguments 20 years ago in the Falklands. Argentina claimed that its ancient rights to title to territory, notwithstanding generations of dormancy, nullified any present-day rights of Falkland Islanders to determine their own fate. When Argentina attempted to convert this theory into practice, it met fierce resistance from Margaret Thatcher’s Britain. The overwhelming majority of bystanders either accepted the uk position tacitly or applauded it. China’s grand strategists had to go back to the drawing board, the legitimacy of a wanton strike across the Taiwan Straits having been cast into serious doubt.

The United States has consistently maintained that the prc must not resort to military means to bring about a settlement of its differences with Taiwan — and has not ruled out use of force in response to an assault on the island democracy. The United States, moreover, has expressed the view that preservation and promotion of the democratic nature of Taiwan constitutes a priority of American policy in the East Asia region. The Bush administration in particular has reiterated and reemphasized the American position that Taiwan-China relations must take place in a peaceful framework and with respect for the democratic and self-governing nature of Taiwan. Commitment to permit arms sales to Taiwan shows the substance behind the statements.3

It is hardly necessary here to recite the further grounds for American policy in the China-Taiwan question. Suffice it to recall that Taiwan possesses the sixteenth largest economy on Earth, carries on very substantial volumes of trade and commerce with the United States, and, at the Doha Ministerial meeting of November 11, 2001, gained admission to the World Trade Organization under the title “Chinese Taipei.” American policy clearly defines the maintenance of peace over Taiwan as a priority. Letting Spain’s arguments about reversion and territorial integrity win the day over Gibraltar would echo well beyond that particular controversy. Sensitive to perceptions of legitimacy, the prc would jump at the case as an informative example of what “should” happen with Taiwan. American policy in East Asia would avert a destabilizing precedent if the sovereignty of the Gibraltarians prevailed.

Missile defense

If the taiwan strait seems a surprisingly long stretch for Gibraltarian influences, outer space can seem no shorter. Yet the legal-diplomatic logic of the Bush administration’s commitment to missile defense unavoidably conflicts with Spain’s position on Gibraltar. In fact, Spain’s Gibraltar position, if it prevailed in practice, would set a precedent eviscerating the legal-diplomatic logic of missile defense.

The United States, since the 1980s, has identified a necessity in creating a defense against attack by long-range and theater ballistic missiles. The Bush administration has renewed the emphasis on this element of strategic development, and the requirements of such defenses, in turn, have occasioned a careful assessment of American obligations under international treaties, in particular the Anti-Ballistic Missile (abm) Treaty of 1972. On December 13, 2001, the president formally announced withdrawal from the abm Treaty effective as of June 13, 2002.

Missile defense rests legally and diplomatically on the view that post-Cold War realities have outpaced the 1972 abm Treaty and thus render it a dead letter. Spain, however, grounds much of its Gibraltar position on the 1713 Treaty of Utrecht — signed long before self-determination became an enshrined right and containing various clauses that remove any shred of doubt as to its complete expiry. If Gibraltar is stuck with Utrecht, then it becomes difficult to comprehend how America can free itself of abm.

The essential support for withdrawal from the abm Treaty resides in the doctrine of rebus sic stantibus — namely, that a treaty looses its binding force if the circumstances at its point of origin have changed in ways fundamental to the object and purpose of the treaty. As withdrawal from the abm Treaty constitutes the legal-diplomatic foundation of missile defense, such defense itself in effect rests on rebus sic stantibus.

Spain bases its position on Gibraltar on alleged obligations arising from the Treaty of Utrecht, signed in 1713. Gibraltar, much like the United States vis-à-vis abm, notes that circumstances in the environment in which the Treaty of Utrecht was signed have changed fundamentally. As much as circumstances since the end of the Cold War have changed in ways quite plainly casting doubt on the continued vitality of abm, circumstances since 1713 have changed even more. The Treaty of Utrecht itself furnishes reminders of those changes. International law governing disposition of territory long ago ceased to conceive of territory as an object to be disposed of irrespective of the rights of inhabitants, yet it is in exactly such terms that Utrecht conceives of Gibraltar. Even more remarkable, the 1713 treaty forbids “Moors and Jews” from living on Gibraltar. It is hard to conjure phraseology more at variance with contemporary legal standards than a clause of overt racial-religious exclusion. To accept Spain’s view that the Treaty of Utrecht is good law, and to reject Gibraltar’s that it is manifestly bad law, is to cast aside rebus sic stantibus almost violently.

The United States approach to missile defense cannot logically or in principle survive the erosion of rebus sic stantibus that Spain’s arguments about the Treaty of Utrecht would unavoidably cause. The United States has an interest in preventing acceptance of Spain’s position that the reversion clause of the Treaty of Utrecht can remain good law.

Reparations for slavery

The legal-political impact if the present Spanish view prevailed in Gibraltar would strike very close to domestic issues as well. Spain’s claims, in substantial aspects, are claims for reparation — reparation for losses suffered in the early eighteenth century by people Britain moved from Gibraltar to Spain and by Spain for loss of sovereignty over the territory. Acceptance of the claims gives legal momentum to like reparation claims everywhere.

Debate in America over reparations for the Atlantic slave trade — which continued well after the alleged wrongs on which Spain hopes to gain ground on Gibraltar — therefore ties in with debate over the Rock. Americans should bear the link in mind when they ask themselves whether a court battle of indeterminate length and contour is the right way to move ahead with civil rights.

No balanced commentator would deny that key constituencies in the United States are acutely aware of the national responsibility to citizens disadvantaged by past wrongs. Claims that a legal obligation exists to make reparations for slavery have gained little traction, however, in part because it is widely accepted that national policy, implemented through multiple initiatives, including the Civil Rights Act of 1964 and subsequent programs of affirmative action, already incorporates mechanisms to alleviate the burdens of this chapter of the American past. A further reason that reparations claims have not gained acceptance is concern over the destabilizing impact such claims, if accepted, would have on settled legal relationships.

Americans appreciate that the law, as an institution, serves to lend predictability and sustainability to relationships among people and resources. Opening the field to claims based on ancient wrongs strips law of this crucial function. Not only in the United States, but in any country where a group can claim that remote ancestors experienced some unfair deprivation of right, acceptance of claims like the slavery reparations claims would constitute a troubling precedent. If accepted, the Spanish position on Gibraltar, too, would serve as precedent for claims throughout the world to revise territorial arrangements on the basis of alleged past wrongs, however remote. The profusion and diversity of such wrongs is nothing short of kaleidoscopic — a reality to which Daniel Patrick Moynihan alluded in Pandemonium: Ethnicity in International Politics (Oxford University Press, 1993) and that legal scholars understand as requiring some eventual closure.

Recrudescence of the European past

As much as Americans might deliberate over the wisdom of a reparations approach to the past injustice of slavery, few would hesitate an instant to reject any hint of a resurgence of the fascist and Nazi totalitarianisms of recent European history. Yet Spain’s no-compromise stance on Gibraltar panders to the worst lingering constituencies from Spain’s past — constituencies akin to those in Germany who call for the return of the Sudetenland or in Italy who wax nostalgic for old authoritarian certitudes. Still troubled by Basque and Catalan dissatisfaction, Spain hardly needs the one additional unhappy minority Gibraltarians inevitably would become. A precedent liable to open old and new wounds alike runs against America’s interest in a stable Europe.

Stabilizing the frontiers and democratizing the internal politics of Europe has stood as a long-term goal of the United States since World War ii. If the uncompromising views currently in fashion in Spain prevail in the case of Gibraltar, remnants of authoritarian attitudes elsewhere in Europe will find fuel and encouragement for their own out-of-date agendas. Throughout the continent, irredentist claims — that is, claims for the return of allegedly “lost” territories — have largely been extinguished, but they continue in places to smolder, in particular among groups seeking revision of borders in the Sudetenland and the South Tyrol. “Return” of Gibraltar to Spanish rule would spur recrudescence of the very strands of European politics that the United States has sought to diminish over a half century of democratization, as well as upsetting the settled principle in Europe of the fixity of existing national boundaries — a principle enshrined in the Helsinki Final Act and, however much called into question in certain cases of ethno-linguistic strife such as Croatia and Bosnia, widely credited with a beneficent influence.

Relatedly, Americans note with concern the rise of far right intolerance in Europe, as much in the electoral shocks of Jean Marie Le Pen or Jörg Haider as in desecrated synagogues and skinhead violence. Home to diverse communities of Catholics, Protestants, Muslims, and Sephardic Jews — the last long ago made unwelcome in Spain — Gibraltar represents the very tolerance and international engagement that Americans instinctively defend. Absorption of the territory into a large European state that, notwithstanding present credentials, has a less reassuring recent record would mark a motion of doubtful wisdom.

The constitutional structure of Spain, with its special autonomies for Catalonia and the Basque province,4 would experience new pressure from the difficulties that will arise if Madrid attempts to integrate 30,000 unwilling Gibraltarians. Their unwillingness lies beyond doubt, as the population down to virtually every inhabitant turns out to vote against integration, to protest Labour officials seen as soft on Madrid, and to celebrate Tories such as Iain Duncan Smith and Michael Ancram, who have taken up the Gibraltarian mantle. At best, a cession of Gibraltar in any form to Spain would introduce irritants to Spanish politics and recall tendencies that America has strived to help Europe overcome.

Haven of regulatory competition

The united states recognizes that its citizens have widely ranging interests in the banking, financial, transport, and other fields and aims to protect these interests around the world. The United States recognizes further that maintaining a diversity of regulatory regimes in the global market helps protect the interests of its citizens. Regulatory competition fosters improvement of regulatory regimes.

This is not to ignore the pitfalls of regulatory freedom on the international stage. Regimes that stray too far from “best practices” — especially where they invite possible abuse of a regime by money launderers, tax evaders, or worse — must feel the brunt of international — that is, American — ire. Gibraltar in fact numbered among the places that faced serious questions in recent years about its own tax and regulatory system. In most particulars, the Gibraltarian government of Peter Caruana has undertaken measures satisfying international demands, most recently, on February 27, 2002, signing on to an Organization for Economic Cooperation and Development initiative to mitigate “harmful tax competition.”

Reflecting the American view, the present U.S. Treasury Secretary, Paul O’Neill, has expressed reservations toward measures that he believes would excessively restrict rules at the international level on banking and taxation. Gibraltar, in furnishing a favorable regulatory regime in key sectors of the international economy, fosters the diversity of regulatory regimes recognized to protect the interests of American enterprise. In adopting new guidelines and taking reparative action with respect to past loopholes, the territory arguably has achieved a proper balance between regulatory liberalism and international responsibility.

It is far from clear whether the best features of Gibraltar’s favorable regulatory and tax environment would survive incorporation into Spain. Insofar as retrocession of the territory to Spain would erode a favorable environment, retrocession simultaneously would erode the legislative diversity that advocates of the free market widely recognize as benefiting American investors and entrepreneurs in the international economy.

Whither Gibraltar?

Gibraltar has stood independent of Spain for three centuries. Gibraltar’s people, in referenda, polls, and protests, have made clear that they wish to act on their sovereign rights — not surrender them.5 A result that gives credence to Spain’s claims works injustice against Gibraltarians — and will rumble legal and political foundations far beyond the Rock itself.

1 For an overview of the history of the territory, see Nicholas Bethell, The Rock On Which We Stand (London: Conservatives in the European Parliament, 2000). Lord Bethell is one of six meps nominated in 1980 to represent Gibraltar interests in the European Parliament.

2 It has drawn comment that the war against terrorism heightens the importance of Gibraltar’s air and naval facilities. See Tom Baldwin and Michael Evans, “Cabinet Feud Over Straw’s Gibraltar Deal,” Times (London: May 10, 2002).

3 Robert S. Ross identifies as primary the strand of American policy seeking pacific relations between Taiwan and the PRC and notes the continued military commitments of the United States to Taiwan. See his “The Stability of Deterrence in the Taiwan Strait,” National Interest (Fall 2001).

4 See A.E. Dick Howard, “The Indeterminacy of Constitutions,” 31 Wake Forest Law Review 383, 400 (1996); Charles E. Ehrlich, “Ethno-Cultural Minorities and Federal Constitutionalism: Is Spain Instructive?” 24 Southern Illinois University Law Journal 291 (2000).

5 The most recent expression of Gibraltarian sentiment was the result of a November 7, 2002 referendum. The referendum posed the question, “Do you agree to the principle that Britain and Spain should share sovereignty over Gibraltar?” Over 90 percent voted “no.” See “Gibraltar Votes Out Joint Rule with Spain,” Guardian (November 8, 2002).

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