SPECIAL COMMITTEE ON DECOLONIZATION CONSIDERS QUESTION OF GIBRALTAR, WEIGHS SIGNIFICANCE OF NEW CONSTITUTION ON STATUS OF NON-SELF-GOVERNING TERRITORY

5 June 2007
GA/COL/3158

SPECIAL COMMITTEE ON DECOLONIZATION CONSIDERS QUESTION OF GIBRALTAR, WEIGHS SIGNIFICANCE OF NEW CONSTITUTION ON STATUS OF NON-SELF-GOVERNING TERRITORY

5 June 2007
General Assembly
GA/COL/3158
Department of Public Information • News and Media Division • New York

Special Committee on

Decolonization

3rd Meeting (AM)

SPECIAL COMMITTEE ON DECOLONIZATION CONSIDERS QUESTION OF GIBRALTAR, WEIGHS

 

SIGNIFICANCE OF NEW CONSTITUTION ON STATUS OF NON-SELF-GOVERNING TERRITORY

The United Nations should not concern itself any further with the decolonization of Gibraltar, save for removing it from its list of 16 Non-Self-Governing Territories, Chief Minister of Gibraltar Peter Caruana told the Special Committee on Decolonization this morning.

He said a new Constitution accepted and adopted last November by the people of Gibraltar in a referendum, which was recognized by the United Kingdom as an act of self-determination, had created a “modern and mature relationship between the United Kingdom and Gibraltar”, and gave Gibraltar “practically full self-government”.

Calling current criteria for Territories to be de-listed “inappropriate”, he stressed that whether the United Nations chose to reconsider those criteria did “not alter the political and factual reality that Gibraltar has, to every other effect ceased to be a colony, is not a colony, is not considered by its ex-administering Power to be a colony”. 

The representative of Spain countered that reasoning, asserting that the new Constitution was merely an outcome of negotiations between representatives of Gibraltar and the administering Power, rather than with the population of the Territory.  It was questionable, therefore, whether it constituted an act of self-determination.  Furthermore, the United Kingdom, in recognizing the applicability of the article of the 1713 Treaty of Utrecht, had given Spain the right of refusal of Gibraltar.  The Constitution had merely given Gibraltar control over its internal affairs.

Gibraltar was a dependent Territory by virtue of the fact that it had been placed on the list of Non-Self-Governing Territories in 1946 and that a United Nations consensus decision year after year had declared that the issue could only be resolved through bilateral negotiations between Spain and the United Kingdom, he said.  De-listing was not an end in itself.  The goal was to take note of a genuine process of decolonization, and Spain was prepared to move forward with negotiations with the United Kingdom on that issue.

Weighing in on that position, Leader of the Opposition in Gibraltar, Joseph John Bossano, stressed that no Gibraltar Government had been willing, nor would ever be willing, to share sovereignty with Spain.  As for agreements reached in the trilateral Forum for dialogue among Spain, the United Kingdom and Gibraltar, Spain should not be under the illusion that an improvement in cross-border cooperation carried with it increased prospect for an acceptance that Gibraltar’s attainment of a full measure of self-government would ever be a matter for negotiation with the country.

In other business, the Committee agreed to hear petitioners from Western Sahara and Puerto Rico.

The Special Committee will meet again tomorrow at 10 a.m., 6 June, to address several items on its agenda, including the question of Western Sahara.

Background

The Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, known as the Special Committee on Decolonization, met this morning to take up the question of Gibraltar.

The Committee had before it a working paper prepared by the Secretariat on Gibraltar (document A/AC.109/2007/12 and Corr.1) which outlines, among other things, the political developments, economic and social conditions in the Territory and the role of the United Nations Special Committee on Decolonization and the General Assembly’s Fourth Committee (Special Political and Decolonization).  According to the working paper, Gibraltar adopted a new Constitution, negotiated by the United Kingdom and a cross-party representation from Gibraltar, on 30 November 2006.  It entered force on 2 January 2007.

The working paper notes that, according to a United Kingdom representative, the new Constitution provided for a modern relationship between Gibraltar and the United Kingdom that was not based on colonialism.   Spain, however, stated that the new Constitution was “an improvement and a modernization of its Government that in no way affect the international capacity of Gibraltar”.  The constitutional reform did not alter in any way the Spanish position on the dispute between Spain and the United Kingdom over Gibraltar, or the colonial nature of Gibraltar.  Decolonization had to be the result of bilateral negotiations between Spain and the United Kingdom, in which the interests and aspirations of the Gibraltarians would be taken into account.

Also according to the working paper, Gibraltar’s Chief Minister notes that Gibraltar now was “effectively decolonized”.  The Constitution maximizes Gibraltar’s self-government just short of full independence.  Decolonization should no longer concern the United Nations.  A new tripartite forum for dialogue on Gibraltar, established in 2004, worked diligently to settle issues such as airport use, telecommunications, border fluidity and pension rights of cross-border Spanish workers.

Statements

IÑIGO DE PALACIO ESPAÑA ( Spain) said some were trying to question the decolonization doctrine of the Territory, repeated year after year in the Assembly’s consensus decision.  Gibraltar’s decolonization should not take place as a result of a unilateral decision on the part of the Territory’s population, but through a negotiation process between Spain and the United Kingdom, taking into account the interests of the Gibraltarians.  Last year, a constitutional modernization process had taken place that, according to some, had changed the nature of the Territory with the argument that the new Constitution had given the Gibraltarians the highest level of self-government for its decolonization in keeping with the provisions of resolution 1541 (XV).  That Constitution would have been adopted in a referendum seen as an act of self-determination and, therefore, it was argued, the colony should be de-listed.

He said that argument did not respond to reality.  The process of constitutional modernization had originated in a British White Paper of 1999, which sought to promote local autonomy and good governance, something that had nothing to do with decolonization.  The United Kingdom had recognized that in Gibraltar a particular circumstance had arisen, as it fell under the Treaty of Utrecht.  The new Constitution had been an outcome of negotiations between representatives of Gibraltar and the administering Power, and not with the population of the Territory.  It was questionable, therefore, if it was an act of self-determination.  Another argument was the attribution to the referendum of the status of an act of self-determination.  However, the United Kingdom had recognized that article of the Treaty of Utrecht was in force and had given Spain the right of refusal of Gibraltar.  He asked where the presumed self-determination was if the population had no power to change the context that defined its international status.  The Constitution had merely given Gibraltar control over its internal affairs.

Despite evidence that demonstrated that Gibraltar remained a colony, there was an attempt to attack the United Nations doctrine with the double goal of de-listing Gibraltar and ending the efforts for a final solution between Spain and the United Kingdom, he said.  However, Gibraltar was what it was, a dependent Territory, not because Spain wanted it, but because it had been put on the list in 1946 and a United Nations consensus decision had declared that negotiations between Spain and the United Kingdom should resolve the issue.  De-listing would break with the doctrine of the United Nations on decolonization of Gibraltar.  It would also change the international character of Gibraltar and affect Spain’s historic rights over the Territory, something which was unacceptable to Spain.  An attempt to unilaterally change those conditions would be an act of extraordinary seriousness.

He said de-listing was not an end in itself.  On the contrary, the single goal of the process was to take note of a genuine process of decolonization.  The Committee’s objective could not be removal from the list of Territories, but the ending of colonization.  Spain was prepared to move ahead with negotiations with the United Kingdom on decolonization of the Territory and to comply with the mandate of the United Nations.

P.R. CARUANA, Chief Minister of Gibraltar, stressed that the peoples of all listed Non-Self Governing Territories, including Gibraltar, had, under the Charter of the United Nations, an inalienable right to self-determination.  The Treaty of Utrecht was “wholly irrelevant”, he continued, reminding the Special Committee of his invitation to refer Spain’s sovereignty claim to the International Court of Justice for an advisory opinion.  Noting Spain’s position that the Treaty gave it rights which it alleged were incompatible with the decolonization of Gibraltar, he said the people of Gibraltar would never succumb to the undemocratic proposition that anyone other than they themselves should decide their future.  The positions were not reconcilable.

He said that the Special Committee must come to terms with basic questions, firstly, whether it accepted as a valid model of decolonization any status freely determined by the people of the territory in an act of self-determination.  Secondly, did the Committee recognize that the aspirations of the 16 remaining listed Non-Self Governing Territories could not be ignored.  The Committee must open itself to other realistic decolonization models.

Gibraltarians did not want independence, he said, underscoring that they wished to retain their constitutional links with Great Britain.  Gibraltar’s 30,000 inhabitants were socially and economically prosperous, and totally financially self-sufficient.  What did independence mean in practice today?  The ingredients of “modern day independence” had changed.  If Spain remained an independent country, even though it had “surrendered” to European Union institutions, why was Gibraltar a colony simply because it had chosen a constitutional relationship with the United Kingdom? he asked. 

In that context, a cross-party Gibraltar delegation had negotiated a new Constitution with the United Kingdom, which minimized the few remaining powers not exercisable by the elected Government of Gibraltar, he said.  Gibraltarians had voted to accept that new Constitution last November, and the United Kingdom recognized that the referendum had constituted an act of self-determination.  Spain remained in a “state of denial” over the factual, political and democratic relevance of that referendum by saying that there was no known legal basis for it.  The insinuation that the referendum had been illegal was preposterous.

The new Constitution was now in operation, he said, and while it was not a Constitution for a sovereign independent State, it did represent what the people of Gibraltar wanted.  Its adoption had created a “modern and mature relationship between the United Kingdom and Gibraltar”. 

The United Nations should not concern itself any further with the decolonization of Gibraltar, save for “de-listing” it, he urged.  The criteria for de-listing remained unrealistic, as they appeared to prevent de-listing in any case where the ex-administering Power retained power to legislate.  He urged the United Nations to reconsider those criteria, however, whatever position the United Nations chose to take would “not alter the political and factual reality that Gibraltar has, to every other effect, ceased to be a colony, is not a colony, is not considered by its ex-administering Power to be a colony”.

Spain’s arguments to retain legislative or executive power in Gibraltar were “simply wrong”, he continued, adding that the United Kingdom Government had no powers in Gibraltar under the new Constitution and retained no legislative or executive powers.  The Governor of Gibraltar was not the representative of the Crown or of the Government of the United Kingdom.  Power was vested in him as a representative of Queen Elizabeth the Second in her capacity as Queen of Gibraltar, not in her capacity as Queen of the United Kingdom.  Thus, the Governor was not the Governor of the administering Power. 

Those fundamental constitutional legal principles were established in 2005 by the Appellate Committee of the House of Lords, he continued, and bound the United Kingdom Government in every respect.  Nothing in Gibraltar’s new Constitution was indicative of continuing colonization, and nothing prevented the Committee from de-listing it.

Referring to recommendations from the recent United Nations Grenada Seminar that were said not to apply to Territories in which there was a sovereignty dispute, he reiterated that nobody had expressed the view that the people of Gibraltar –- a Territory subjected to a sovereignty dispute –- should be denied self-determination.  If the Committee adopted those extraordinary propositions, it would be saying that the people of Gibraltar did not enjoy the right to self-determination.

The trilateral Forum for dialogue between the Governments of Gibraltar, Spain and the United Kingdom was a valuable tool, which had produced mutually beneficial agreements relating to Gibraltar’s airport, cross-border traffic and telecommunications issues, he said.  Gibraltar looked forward to reaching more mutually beneficial agreements with Spain in that forum.  He hoped the dialogue would allow Gibraltar to address the question of sovereignty at an appropriate time, and noted the United Kingdom’s commitment not to enter into any sovereignty negotiations with Spain with which Gibraltarians were not content.

Finally, he said he had allowed the opposition of Gibraltar to speak at the Special Committee today.  Indeed, opposing political views were the mark of democracies, and the Government of Gibraltar acknowledged that fact.

JOSEPH JOHN BOSSANO, Leader of the Opposition in Gibraltar, said the annual conclusions of the Regional Seminars that “…in the process of decolonization, there is no alternative to the principle of self-determination, which is also a fundamental human right”, had been changed in 2004 by inserting words that limited its application to those Non-Self-Governing Territories where there was no dispute over sovereignty.  The attempt to introduce that as a “new doctrine” was in flagrant breach of the United Nations Charter and international law.  The text adopted at the United Nations World Conference on Human Rights and ratified by 171 Member States declared that all peoples have the right to self-determination, that its universal nature was beyond question, and that the denial of self-determination was a violation of human rights.  “How can anyone ask this Committee to perpetrate a violation of that very human right it is mandated to pursue and defend, and which is the very foundation of the Committee’s existence?” he asked.

He said the realization of the right to self-determination was not intended to promote the break-up of existing States.  However, in post- or non-colonial situations that had happened and had been accepted by the United Nations, such as in the case of St. Kitts, Nevis and Anguilla, with the secession of Anguilla following the colonization in the 1960s, and of Montenegro.  The Committee “has the obligation under its own terms of reference to defend the people of Gibraltar as a people under colonial rule to whom the Declaration on Decolonization is and has always been fully applicable, hence, possessed of the inalienable right to self-determination to decide their own future status”.

Another question, he said, was whether the right to self-determination had been realized in last year’s referendum, whether the realization of that right had resulted in a “full measure of self-government” being obtained by the people, and whether, as a result of the 2007 Constitution, the United Kingdom was no longer the administering Power and Gibraltar was no longer a Non-Self-Governing Territory.  That question was the duty of the Committee to address; it was a matter for the Committee to exercise its powers to declare whether conditions had been met.  He fully supported that procedure and asked of its application.  The Special Committee had a duty to find a case-by-case solution, always keeping as their paramount consideration the wishes and well-being of the peoples of the Territories.

In Gibraltar’s case, he said the Committee should say whether it was satisfied that the 2006 referendum had achieved the realization of self-determination, and whether the text of the new Constitution proved a full measure of self-determination, such that the decolonization of the Territory was now complete, irrespective of the opinion of the United Kingdom, who says it has, or of Spain, who says it has not. 

As for Spain’s position, he said that that country still maintained that Gibraltar must retain, unchanged, its constitutional status as a Non-Self-Governing Territory –- a colony –- unless and until it passed under Spanish sovereignty.  However, no Gibraltar Government had ever been willing, and no Gibraltar Government would ever be willing to share any of Gibraltar’s sovereignty with Spain.  As for the trilateral Forum, “ Spain should not be under any illusion that any level of improvement in cross-border cooperation carries with it increased prospects […] to an acceptance that Gibraltar’s future status and its attainment of a full measure of self-government is ever going to be a matter for negotiation with Spain.”

In closing, Committee Chairperson MARGARET HUGHES FERRARI ( Saint Vincent and the Grenadines) said she agreed with the statement by former Committee Chairman Julian Hunte ( Saint Lucia) that administering Powers were to advise the Committee of any territorial changes.  The Committee would then decide whether those changes constituted self-government.  The de-listing issue, therefore, was not something that the Committee could take up on its own.

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For information media • not an official record
For information media. Not an official record.