british we are, british we stay: an analysis into the legal ramifications of the treaty of utrecht...

British we are, British we stay: An analysis into the legal

ramifications of the Treaty of Utrecht of 1713 on Gibraltar’s

sovereignty; the legal developments since, new legal

considerations and, contextual developments of the present

day.

1

University of Reading

School of Law

Nicholas C. Villalta

Introduction

The circumstances of Gibraltar are very particular and

are unique to its situation. They are however, synonymous with

issues that are commonplace in the post-colonial world. The

situation of Gibraltar however seems to be unique amongst this

class due to reasons of geography, history and political

factors. Britain’s claim over Gibraltar originates from their

invasion in 1704 and from the subsequent peace treaty with

Spain in 1713, whereby the latter ceded Gibraltar to the

former under Article X of the Treaty of Utrecht (hereinafter

TOU). I will be analysing the effect of Article X of the

Treaty of Utrecht and its impact on the status on Gibraltar

from its ratification in 1713 through to present day. I will

look at what was conferred, what remains and, what is no

longer applicable. Due to the circumstances surrounding this

issue, I will be contrasting opposing opinions from the

British, Spanish and Gibraltarian points of view.

Brief outline of the history of Gibraltar

Gibraltar is a territory on the southernmost tip of the

Iberian Peninsula located in a strategic position at the mouth

of the Mediterranean, which not only links this to the

Atlantic, but also allows onward passage to the Suez Canal,2

and beyond. Due to this strategic position it is seen as a

prized possession for naval might and power. After periods of

Spanish and Moorish occupation, Gibraltar was invaded by a

confederation of British and Dutch troops in 1704 and has been

under British control ever since. At the time Spain was in

embroiled in the War of Spanish Succession, a war which was

being fought in Europe due to claims from European monarchs to

the Spanish throne. In 1713 the TOU was signed1, marking the

end of the on-going War and a settlement of all the concurrent

claims. This treaty included amongst it, the ceding of

Gibraltar to Great Britain by Spain, albeit with certain

conditions. Since the ceding of Gibraltar, there have been

many attempts by Spain to regain the territory who have since

reclaimed the right to the sovereignty over Gibraltar. These

attempts have been through military, diplomatic and political

pressures. Gibraltar has suffered four separate sieges in an

attempt to coerce the garrison to surrender. Not surprisingly,

there has been considerable disagreement with Spain over the

territory. The latter maintains that British title is derived

entirely from the TOU, whereas Britain maintains that its

title to Gibraltar is based on conquest and that the Treaty

merely confirmed this. They add that this conquest title is

also confirmed by the Treaties of Seville 1729, Vienna 1731,

and Versailles 17832. Many changes have occurred since the

signing of this treaty, and since the end of WWII, there has

1 Officially called: ‘Treaty of Peace and Friendship between The most Serene and most PotentPrincess Anne, by the Grace of God, Queen of Great Britain, France, and Ireland, Defender of the Faith,and the most Serene and most Potent Prince Philip the Vth, the Catholic King of Spain, Concluded at Utrecht the 11 April 1713’. 2 From SECRET papers produced by the U.K. Government, Consideration of Recent Spanish Arguments Based on the Treaty of Utrecht. Folio: G-83/3 Gibraltar, Spain, Utrecht, p. 1.

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been a change in the relationship between Gibraltar and the

U.K. from one based on colonialism, to one more akin with an

overseer and close friend. These changes have had a profound

effect on the sovereignty of Gibraltar.

The Treaty of Utrecht

As mentioned, Gibraltar was ceded from Spain by Article X

of the TOU. This Article contained the provision that: ‘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 for ever,

without any exception or impediment whatsoever.’3 From this, we see that

Gibraltar and the rights over it were ceded to Great Britain.

The treaty contains other provisions. An obligation about

imports states: ‘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’4. This

has been interpreted to mean that Gibraltar must prevent all

fraudulent importations into Spain. Due to smuggling incidents

over time Spain has used this as grounds to argue that Britain

has not kept its obligations and therefore effected a breach

in the treaty.

The treaty also includes the obligation that ‘Her Britannic

Majesty, at the request of the Catholic King, does consent and agree, that no leave

3 Traite de Paiz entre Les tres-Haut, & tres-Puiffant Prince Dom Jean V. Par la grace du Dieu Roy de Portugal, et Le tres-Haut, & tres-Puillant Prince Dom Philippe V. Par la grace du Dieu, Royal Catholique Espagne. National Archive SP 113/108.4 Ibid

4

shall be given under any pretence whatsoever, either to Jews or Moors, to reside or

have their dwellings in the said town of Gibraltar’5. The settlement of both

Jews and Moors in Gibraltar is another example which the

Spanish claim as a breach of the Treaty. However, this

discriminatory provision surely cannot be legally applicable

in the 21st century. This serves as a good example to question

whether a strict breach of the Treaty really affects the

sovereignty over Gibraltar. I would argue that it does not,

otherwise there would be an active discriminatory clause

governing the sovereignty of a territory; an unthinkable

precedent for international law.

The last obligation imposed by the Treaty is of

importance: ‘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’6. This last

obligation imposes the requirement on Britain to afford Spain

the first option of sovereignty over Gibraltar if it were ever

to relinquish sovereignty over it.

All these obligations have affected the status of

Gibraltar by imposing limits to the way in which it can

develop and act. Most importantly, it seems to limit the

possibility of Britain ever granting Gibraltar independence

without the consequence of Spanish sovereignty. I will examine

how these have stood the test of time, whether they have been

breached, and if they have, whether this amounts to a

revocation of the Treaty and to a return of sovereignty to

5 Ibid6 Ibid

5

Spain. To address this I will analyse the issues and themes

and how they have emerged chronologically.

Exchange of Notes between England, France and Spain 1907

The beginning of the 20th century saw a change in the

balance of power in Europe. France and Britain remained

strong; Spain began to dwindle whilst German might began to

emerge. The dominating powers became cautious about losing

their possessions. They were keen to secure Spain’s security

and to uphold their respective possessions, rather than

allowing Germany to capture land from a weakened Spain and

gaining a foothold in the Mediterranean. The three powers

therefore arranged to exchange diplomatic messages in an

attempt to secure an agreement, with the Spanish Ambassador

agreeing that this Exchange of Notes could amount to a

Tripartite Agreement7. This exchange led to Spain including a

clause to safeguard the ‘territorial status quo’ against

aggressive action. The British Secretary of State for Foreign

Affairs, Sir Edward Grey, wrote a memo saying that his Spanish

counterpart had communicated to him in these Notes that “the

Spanish Government were quite willing that Gibraltar should remain secured to us

[the British], but they might find difficult in actually mentioning it in a Treaty”8. The

agreement was centrally about guaranteeing the ‘territorial status

quo’, and explicitly this would include Spain’s possessions as

well as Great Britain’s. The Exchange of Notes and the

agreement can therefore be seen as an acceptance by the7 Letters from the Spanish Ambassador in a Folio entitled: ‘Extract from Chapter 2 of Red Book relating to negotiations begun with the Marquess of Lansdowne with the Spanish Minister of State in 1905 and taking shape in anexchange of Notes between Spain, England and France in 1907’. Folio: G-58/2Spanish Red Book.8 Ibid

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Spanish of the agreed title over Gibraltar by Great Britain.

What needs to be questioned is that if this is considered a

legal agreement, which it seems it is, then does it supersede

the original TOU? Notes by Sir Edward Grey state ‘[it is] arguable

that the 1907 declaration superseded all previous treaties and agreements and was

therefore a legal document which should have seen Spain renounce all its claims

over Gibraltar, indeed some prominent jurists within the Franco regime thought this

too, though due to the regime would not speak out publicly’9. This can be seen

to have great importance in questioning the legality of the

Spanish claim, as it seems to confirm that they renounced all

claims to the title through this agreement. This suggests that

this Exchange of Notes therefore superseded the claim to

sovereignty present in the TOU and therefore provided a new

legal basis for the claim, and one which was not hindered by

the same limitations.

In a file classed as “Secret”, a Cambridge lawyer was

asked for his opinion as to the effect of these Notes on the

TOU, ‘In my opinion, British sovereignty over any part of Gibraltar is not derived

from the Treaty of Utrecht but from the whole course of the history of the exercise of

British sovereignty over the territory; which provides more than ample evidence of

what nowadays is commonly called a historical “consolidation of title”. It is

unnecessary and undesirable to rely upon one single event or instrument; even

though it might in itself otherwise be sufficient. In this process of historical

consolidation the 1907 Declarations form an element of great importance’10. It

seems that these Notes were meant to affect the relationship

between Spain and Gibraltar; however, Spain has never

9 Notes from Sir Edward Grey, in Ibid. 10 Official Government Paper entitled: ‘Opinion of Art. X of the Treaty of Utrecht, and upon the legal effect of an Exchange on Notes between Britain,France and Spain in 1907’. Written by R. Y. Jennings, April 1966, Jesus College, Cambridge.

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renounced its claim, despite the Notes agreeing this. This

supports the view that the TOU is not the key legal document

that entitles Britain to title, and that therefore the Spanish

claims over title, based on alleged breaches by Britain of the

TOU are unfounded due to inapplicability of this Treaty.

Despite this inapplicability, the principles of the TOU are

enshrined in all the subsequent legal developments and

therefore continue to prevail.

Impact of World War II

WWII saw Gibraltar being used extensively for military

operations. Its role during the war was crucial as it allowed

Britain and her Allies to use the base to further their

operations in the Mediterranean and Africa. I find it

necessary to mention an interesting legalistic theory. Had

Germany executed Operation Felix and invaded Gibraltar, I

question how this would have affected the territorial title.

Germany’s acts would have signified a claim by conquest, just

like Britain’s in 1704, however the difference would have been

the eventual distinction of the victor and the defeated.

Sovereignty would therefore have most likely reverted to

Britain, under the TOU provisions. This illustrates the

fundamental role that the TOU has played in maintaining

Gibraltar’s sovereignty, as perhaps without it, Britain would

have not had such a solid ground on which to base its

sovereignty. It is therefore imperative to submit that the TOU

is the fundamental basis of sovereignty over Gibraltar, from

which all other claims stem, even if it has been superseded.

The end of WWII saw the attempted intervention from other

States into the question with Gibraltar. A letter from the8

then British Ambassador in Madrid to the Governor of Gibraltar

talks about his knowledge over unofficial talks between

American and Spanish officials suggesting support in the

Spanish claim for Gibraltar. The reaction was one of strong

hostility. They both wrote to the U.S. State Department

warning ‘if the Americans…attempt to sell Gibraltar, directly or indirectly, [this]

would be taken as an unfriendly act’11. In a separate letter, the

Governor also made it clear to Lieutenant-General Sir Nevil

Brownjohn, the Vice Chief of the Imperial General Staff that,

‘equally, if Spain is hostile and attacks Gibraltar – well, it would not be very difficult

to bomb Madrid and Barcelona’12. If nothing else, this shows

Britain’s resolve to keep sovereignty over Gibraltar and their

zeal not to be intimidated. If the consolidation of title idea

holds true then this loyal protection of Gibraltar surely adds

to the strength of British sovereignty under the TOU.

Post War Period - The United Nations, the 60’s and the 70’s and the ‘hostile period’

The establishment of the United Nations brought a

different perspective and approach to the Gibraltar question.

The UN set up a Special Committee on the Situation with regard

to the Implementation of the Declaration on the Granting of

Independence to Colonial Countries and Peoples13 to deal with

the implementation of the right to self-determination and to

end colonialism. Sadly for Britain and Gibraltar, the Spanish

delegation used this new platform to advance Spanish

sovereignty claims. This was all more hostile by Spain after

1969. 11 Letter from H.E. General Sir Kenneth Anderson, KCB, MC. Folio: Relations Between Spain and Gibraltar, WO216/74. Letters dated 20/06/1951.12 Ibid13 Hereinafter, Committee of ‘Twenty Four’.

9

In 1969, the U.K. Government, after several years of

consultation and persuasion14, allowed and approved the

adoption of the 1969 Constitution for Gibraltar. This

constitution devolved powers away from the U.K. and

transferred them to the House of Assembly (the legislature as

then termed). The introduction of this Constitution had a big

effect of the application of the TOU, it represented a new

approach to Gibraltar from Britain and for the first time,

incorporated the local voice into the arrangement.

This outraged Spain who claimed that these constitutional

changes were incompatible with the TOU and the breach would

justify repudiation by Spain15. General Franco, who upon

hearing about this 4 years earlier, had threatened to cut off

Gibraltar from the mainland by shutting the frontier16, did so

two days after the Constitution was passed. This marked the

beginning of Gibraltar’s 16-year period of physical and

psychological isolation from Spain17. The reaction in Gibraltar

could not have been more contrasting and profound. An extract

from a Gibraltarian newspaper, “Vox” on the announcement of

the finalisation of the constitution read ‘We now feel the Rock is safe

and that we shall never come under Spanish domination. British we are-British we

stay’18. From this we capture the determination of the local

population to keep Britain to its commitments and to uphold14 For 6-years worth of letters, documents, proposals and draft constitutions with legal opinions see: Folios F.O. 2678/PREM 13 – 1968-1969Gibraltar and F.O. 3226/PREM 13 – 1969-1970 Gibraltar. 15 From a speech by the Spanish representative in the Committee of 24, foundin folio T317/831 – Gibraltar. U.K. Talks with Spain on the Future of Gibraltar. 16 The Times, 7 June 1969.17 Gibraltar at the United Nations: Caught between a Treaty, the Charter andthe ‘fundamentalism’ of the Special Committee, Diplomacy and Statecraft, Vol. 10,2009, pp. 697-715. 18 Vox, 23 July 1968.

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the TOU, an attitude which would gain importance and reflect

in the consolidation of title.

The question which dominated Anglo-Spanish relations over

Gibraltar for years was whether the granting of self-

determination (through the Constitution) amounted to a breach

of the last provision of Article X. This is assuming, that the

Treaty is still valid and in force and not invalidated by the

Notes of 1907 or, by general customary international law and

the principle of clausula rebus sic stantibus19 (things thus stand),

which could be argued is applicable in this case. The Spanish

view was that this amounted to a breach, whereas Britain

disagreed relying on R.Y. Jennings argument, ‘Self-determination is

not the same thing as independence; and it does not necessarily involve even

momentary sovereign independence. It is certainly possible, under proper

safeguards, for a people to be given the opportunity freely to choose their own

destiny without a simultaneous alienation to them of the territorial sovereignty; and

it is clearly territorial sovereignty with which Article X is concerned’20.

Who is right in law in this case seems to depend on

perspective, so I turn to the actions of the UN, which would

be assumed to be more representative. The UN passed numerous

resolutions concerning decolonisation and self-determination.

UN Resolution 1514 (XV) of 1960 contains the following

provision ‘Immediate steps shall be taken, in…territories which have not yet

attained independence, to transfer all powers to the peoples of those territories,

without any conditions or reservations, in accordance with their freely expressed will

19 This is a legal doctrine allowing treaties to become inapplicable due to fundamental change in circumstances. For a discussion this see the judgmentin: United Kingdom v. Iceland, 1974. I.C.J. 320 Official Government Paper entitled: ‘Opinion of Art. X of the Treaty of Utrecht, and upon the legal effect of an Exchange on Notes between Britain,France and Spain in 1907’. Written by R. Y. Jennings, April 1966, Jesus College, Cambridge. P. 1.

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and desire…in order to enable them to enjoy complete independence and freedom.21’

This is the basis for the UN action on decolonization. The

Spanish authorities have taken a different view and quote

section 6 to counter this, ‘any attempt aimed at the partial or total

disruption of the national unity and the territorial integrity of a country is

incompatible with the purposes and principles of the Charter of the United Nations’.

The Spanish representatives at the UN Committee of 24 argue

that the decolonisation of Gibraltar will disrupt its

territorial integrity and that therefore self-determination

would be a breach of the UN Resolution as well of the TOU

itself. This has led to stalemate at the UN, which is

evidenced by the fact that Gibraltar still appears on the list

of Non-Self-Governing Territories.

The British argument was that having granted Gibraltar

the 1969 Constitution amounted to a form of decolonisation, so

they had fulfilled their duty under the UN Resolution. The UN

however, did not agree and they passed a further Resolution,

this time specifically to Gibraltar; UN Resolution 3286

(XXIX). This called for the ‘Governments of the United Kingdom of Great

Britain and Northern Ireland and of Spain to begin without delay the negotiations’

over Gibraltar. The political playmaking of Spain was superb.

They requested resumption of talks on 6th September 1967, when

a referendum was about to be held in Gibraltar on whether to

retain links with Britain. In order to proceed with these

talks, they asked Britain to invalidate the referendum

results22, which it refused to do. This made Spain seem as

though she was being cooperative and Britain resistant to

21 Section 2 of Resolution 1514 (XV)22 Which had shown 99.64% wanted to remain in association with Britain, a slap in the face for Spanish claims.

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talks. The UN General Assembly reacted by passing Resolution

2353 (XXII), which denounced the interruption of talks, and

denounced the referendum as a contravention of the Resolution

2231 (XXI) of 1966 (which requires Spanish consultation on

matters such as these). They also called for talks to resume

and seemed to show the UN bowing down to Spanish pressure.

Spain was under a dictatorship at the time, she was calling

for a contravention in a democratic expression of will from

the people of Gibraltar. Britain’s reaction to this was strong

and the House of Commons described the UN Resolution as

‘contemptible and disgraceful23’.

In December 1968, Gibraltar returned to the UN agenda.

Britain replied by pointing out that UN Resolutions were

recommendations, and not binding decisions. They also pointed

out that “however large the majorities for resolutions approved by the Assembly

or other bodies, the United Kingdom regarded its obligation under Article 7324 as

overriding” 25. The UN proceeded to pass Resolution 2429 (XXIII),

which declared the colonial situation in Gibraltar to be

incompatible with the UN Charter and with previous Assembly

resolutions and it called on Britain to terminate the colonial

situation by 1 October 1969. Britain reacted angrily26 and Lord

Caradon, speaking for the British Government told the Assembly

that the

resolution would not and could not be put into effect.

The Spanish argument is a oxymoron in itself; on the one

hand they argue that the TOU is outdated and incompatible with

23 Hansard, House of Common Debates, 7 May 1968, Cols 245, 267, 271, 276-7.24 Article 73 of the Charter of the UN – Declaration regarding Non-Self-Governing Territories.25 Yearbook of the United Nations, 1968, 747.26 The Times, 19 December 1968.

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the UN Charter, however, on the other hand they argue that the

TOU has been breached due to the granting of self-

determination, and that therefore the Treaty has been

violated, acknowledging the TOU’s validity. Spain seem to

accept or deny TOU obligations dependent on their agenda.

Post Franco

After the death of General Franco in 1975 and the move by

Spain to a ‘democracy’, the attitude towards Anglo-Spanish

relations changed, as did the official attitude towards

Gibraltar. This may have been through genuine motives, but

there was undeniably an ulterior motive involved, Spain’s

membership of the European Community (EC) and of NATO. This

can be seen by the fact that Spain felt compelled to open the

frontier as ‘they [could not] expect the British Parliament to approve Spanish

entry into the Community at the end of current negotiations27’. Moreover, a big

impact in this relationship was the Falklands War.

The Falklands War 1982

‘I'm standing up for the right of self-determination. I'm standing up for our

territory. I'm standing up for our people. I'm standing up for international law. I'm

standing up for all those territories - those small territories and peoples the world

over - who, if someone doesn't stand up and say to an invader 'enough, stop', would

be at risk’28

The Falklands War is more significant for what it stood

for, than what it actually involved. Although the Falkland are

a small set of islands in the South Atlantic to many, it

27 A letter from the Foreign Secretary to Cabinet, found in folio FCO7/4556 – Gibraltar: Implications of Falklands Islands Crisis on Spanish/Gibraltarian Relations, 1982.28 Speech from Margaret Thatcher, 08/10/1982

14

represented Britain’s hesitation to let go of its Empire. Not

only does this link back to the idea of Gibraltar, but there

was another connection between them, that of Spain and

Argentina. Ideologically, the war struck a cord with the

Spanish population, who saw the situation as not too

dissimilar to their own with Gibraltar. Spain however, were

keen to maintain neutrality due to their EC and NATO

aspirations. Spain therefore abstained in their vote to the

Security Council which called for an immediate withdrawal by

Argentina29. However, even though the Spanish Government were

not officially backing the invasion, the public opinion in

Spain spoke volumes as to their support for the ‘Islas

Malvinas’. There was consequently a notable change in the

Anglo-Spanish relations. The Falklands, Spain and U.K. desired

to approach the Gibraltar issue though peaceful negotiations.

Both realised where an escalation of both rhetoric and actions

could take them, and so they began working more amicably with

each other30. I believe that the reason that the U.K. did not

bank on this and make the complete conciliation of Gibraltar a

condition for Spanish accession into the EC was that they

realised that despite Franco having left, his legacy was still

prevalent, especially with the Armed Forces, and so they were

treading carefully. Additionally Spain seemed to have more

sympathy at the UN and therefore they may have seen their

resistance as ineffectual, obtrusive and damaging, whereas

they had finally reopened the frontier. Perhaps had it not

been for this, Britain may have been able to push the point of

29 Papers from the Folio FCO7/4556 – Gibraltar: Implications of Falklands Islands Crisis on Spanish/Gibraltarian Relations, 1982.30 FCO7/4556 – Gibraltar: Implications of Falklands Islands Crisis on Spanish/Gibraltarian Relations, 1982.

15

Spain renouncing its claims before accession into EC and NATO.

Arguably, the ratifying by Spain and Britain of these two

treaties, superseded all these previous obligations, as these

treaties included issues such as freedom of movement and

cooperation. Therefore, the Treaty of Utrecht can again be

seen to have been superseded by other obligations, and one’s

which point to sovereignty resting on consolidation of title.

The 21 st Century

The new century brought about further changes in the

constitutional context of Gibraltar. The 2002 British Overseas

Territories Act, officially made Gibraltar a British Overseas

Territories and dissolved the term of British Dependent

Territory. This was coupled with the introduction of the 2006

Constitution in Gibraltar whose aim was to provide a modern

and mature relationship between Gibraltar and the U.K., one

not based on colonialism. It accomplished this by modernising

the relationships and institutions established by the 1969

Constitution and by devolving further powers and competences.

However, Britain enshrined in the Constitution that this

modernisation did not infringe on the issue of sovereignty and

therefore, just as the 1969 one, it did not breach Article X

of the TOU. This can clearly be seen as a reaffirmation of

self-determination; perhaps as a signal to Spain despite its

opposing claims. However, some may argue that what this really

is another breach of the TOU. In my view however, the

introduction of the new Constitution is evidence of the change

of status of Gibraltarian sovereignty and thus the

inapplicability of the TOU.

Comparative Analysis

16

Gibraltar is not unique in its position as a territory

with two claimants over its sovereignty. The Falkland Islands

sovereignty dispute does not rely on a Treaty, but rather it

on conquest claims as well as from rights from continuous

administration. The Falkland Islands have also subject to many

of the UN Resolutions examined above, and were under the same

pressure for decolonisation from Argentina. A difference

between the Falklands and Gibraltar is due to location, the

former is not part of the EU and therefore the U.K. and

Argentina have not had to co-operate in order to resolve

issues such as freedom of movement. The inclusion of a treaty

in Gibraltar’s case has therefore made a difference. This has

meant that the territorial claim has not had to rely solely on

conquest, unlike the Falklands, who with no other means to

prove their title with are susceptible to a dispute as to the

title. However, the Falklands, like Gibraltar, have a very

supportive population for the continuation of British title

and should therefore be able to use their consolidation of

title to provide claim over sovereignty.

Ceuta and Melilla are two interesting examples. Their

sovereignty is based on conquest by Spain. Morocco finds

itself in the position that Spain is with Gibraltar, except

for the existence of the TOU. However, Spain argues that when

both these enclaves were conquered, Morocco was under French

control and it was therefore not a political entity. Spain has

also argued to the UN that there is a distinct difference

between the ‘Sovereign Territories’ of Ceuta and Melilla, and

the ‘Crown Colony’ of Gibraltar, with the difference being on

17

the onus of self-governing31. Spain has adopted a non-

negotiable position as regards both, a position that seems to

completely contradict the negotiable stance that it demands

from Britain. Ceuta and Melilla are also both part of the EU,

however, the difference in geography means that as they are

not attached to another Member State so this does not give

rise to the same issues to do with freedom of movement which

it did for Gibraltar.

These comparisons show just how important Britain’s claim

on sovereignty is reliant on the TOU and subsequent legal

developments. Without them the claim can fall into a battle of

rhetoric as in the Falklands. This shows just how important

the TOU is to the sovereignty.

Applicability of the Treaty of Utrecht in the 21 st Century.

As already mentioned, there is the possibility that the

Treaty may not be in force and this could be verified by

taking the case to court. However, Spain’s refusal to take the

case to the I.C.J has left the question hanging. Conversely

even if the TOU was found to be no longer valid, the

obligations and title to sovereignty it embodied are enshrined

in all the subsequent legal obligations concerning Gibraltar.

Therefore the TOU provides the fundamental basis for which the

sovereignty issue and the foundation for the consolidation of

title.

Conclusion

31 Trinidad, J. ‘An evaluation of Morocco’s claims to Spain’s remaining territories in Africa’, International & Comparative Law Quarterly, 2012, 61(4), p. 696

18

In conclusion, I would argue that the obligations

undertaken by the parties in the Treaty of Utrecht have long

surpassed their expiry date and that modern considerations,

which has a paramount element of peoples aspirations, should

be considered in addressing the issue. However, the TOU, the

Exchange of Notes of 1907, the British position on

sovereignty, the enactment of the Constitutions and, the views

of the Gibraltarian people, all add up to present a solid

argument for the consolidation of title on the continued

sovereignty of Gibraltar by Britain. The Treaty of Utrecht is

not the sole root of this title, but seems to be the stem from

which all other factors have grown. This exemplifies the

effects it has had.

19

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SP113/108 – Treaty of Utrecht. - Traite de Paiz entre Les

tres-Haut, & tres-Puiffant Prince Dom Jean V. Par la

grace du Dieu Roy de Portugal, et Le tres-Haut, & tres-

Puillant Prince Dom Philippe V. Par la grace du Dieu,

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Resolution 1514 (XV)

Resolution 2231 (XXI)

Resolution 2353 (XXII)

Resolution 2429 (XXIII)

Resolution 3286 (XXIX)

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Gibraltar at the United Nations: Caught between a Treaty,

the Charter and the ‘fundamentalism’ of the Special

Committee, Diplomacy and Statecraft, Vol. 10, 2009, pp. 697-715.

Trinidad, J. (2012) ‘An evaluation of Morocco’s claims to

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United Kingdom v. Iceland, 1974, I.C.J. 3.

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Yearbook of the United Nations, (1968).

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Vox, 23 July 1968.

The Times, 19 December 1968.

The Times, 7 June 1969.

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british we are, british we stay: an analysis into the legal ramifications of the treaty of utrecht...

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