In response: Gibraltar, universities and the EU

Felipe Fernández-Armesto takes issue with a claim that the EU has been playing the sovereignty card in Brexit negotiations

May 2, 2017
Flags of the Gibraltar, the UK, and the EU

Reading Times Higher Education rarely makes me suffer but Daniella Tilbury’s piece left me in agony – not least because I sincerely wish Dr Tilbury, her university (the University of Gibraltar) and all Gibraltarians a happy issue out of the afflictions Brexit brings.

It’s bad enough to have former Conservative leader Michael Howard’s hostility and foreign secretary Boris Johnson’s jingoism sabotage my and many others’ efforts to help. When the vice-chancellor of the University of Gibraltar compounds errors and exacerbates ill feeling the effect is almost unbearable. I hope you’ll allow me to set the record straight and to try to establish a reliable basis for sorting out current and prospective problems.

Dr Tilbury makes two historical howlers. Spain did not “lose” the War of Succession: it was a civil war, aggravated by foreign opportunism. Britain’s intervention was on the losing side. This doesn’t much matter, as far as implications for today’s difficulties are concerned, but it shows that the vice-chancellor is imperfectly informed. We should, in any case, not appeal to 300-year-old events, but start from where we are. Those who do appeal to history, however, ought to get the facts right.

Dr Tilbury repeats, moreover, a tendentious reading of the Treaty of Utrecht, so often repeated that it has become a cherished British myth – as ill fitted to the facts as the infamous left boots of the Crimean War. “Spain”, Dr Tilbury says, “signed the Treaty…handing Britain the sovereignty of Gibraltar in perpetuity”. No one in Britain or Gibraltar seems to have read the treaty since it was signed – and perhaps not even then. The English monarch received only property rights (propietatem habendam fruendamque in the Latin of the document). Although the absolute, perpetual, inappellable and irrevocable nature of those rights was emphasised, Article X also reserved sovereignty (sine jurisdictione territoriali) to Spain.

Britain took advantage of an ambiguity in the text, which can be construed only to exclude surrounding areas. In practice, in any case, Spain has acknowledged Britain’s exercise of sovereignty on the basis of later treaties and exchanges of notes.

Nor does Dr Tilbury help by denouncing “the undemocratic way in which the EU has given the power to Spain to veto any agreement”. The EU has not given Spain any such power. All member states of the Union have the right to block arrangements with third countries (including, alas, Brexit Britain), by virtue of freely negotiated treaties, to which all have assented in accordance with their respective constitutions. No organisation of sovereign states could work on any other basis, which is entirely and necessarily consistent with democracy.

Dr Tilbury can judge better than I her claim that “local people feel betrayed” – but if so, they can hardly do so reasonably on the grounds that the EU “has chosen to play the sovereignty card”. There is no “sovereignty card” to play. All states of the Union are sovereign and cannot be required to forgo their rights. That is the basis alike of Britain’s right to secede and Spain’s to adhere to the EU’s constituent treaties.

Dr Tilbury wrongly formulates a seriously misleading allusion when she says that “Spain holds the ‘colonies’ of Ceuta and Melilla”. Ceuta and Melilla are not colonies – with or without the scare quotes – but part of Spain. Gibraltar is not part of the United Kingdom, but a colony. There may be scope for a legitimate debate about the future of the historic praesidia – I’d welcome such a debate on a separate occasion – but not on the false basis that their problems are analogous to those of Gibraltar.

When Dr Tilbury rightly points out that Gibraltar’s “education, judiciary and political system mirror…the UK”, she perhaps gives the impression that Spaniards want to tamper with Gibraltar’s traditions in those respects. Spain, like Britain, is a “nation composed of nations” with appropriate levels of devolution in all regions. In Catalonia and Navarre, for instance, the constitution guarantees the inviolability of peculiar legal and cultural traditions. No future for Gibraltar should or conceivably would impair the community’s self-government or any part of the precious diversity of the local heritage.  

Spain has, moreover, repeatedly assured Gibraltarians that their right to British citizenship, if they want it, is inviolable. And of course, no settlement of the Gibraltar question can or should prevail without the clear and democratic consent of the inhabitants. By “clear” consent I do not mean the kind of dodgy majority procured in favour of Brexit by denying voting-rights to expatriates, exploiting protest votes and counting every vote to “leave” as an endorsement of a hard Brexit. I mean an informed, convinced and substantial majority.

On one point I agree with Dr Tilbury unreservedly. It would indeed be “tough…if free movement of people and goods were no longer possible”. The EU guarantees such freedom. Only Brexit – no choice of Spain’s – imperils it. I should be delighted if the Brexit negotiations upheld it – for Britain as well as for Gibraltar. But Mrs May has ruled the single market out; if Gibraltarians want to bristle at betrayal, perfide Espagne doesn’t sound or seem like the right target.

Although Dr Tilbury speaks of “tormented Gibraltarians”, they are perhaps the most privileged Europeans, in terms of trade and tax, under the present arrangements. I am happy about that. So are most other Spaniards. I want to see an outcome that preserves as much of Gibraltarians’ current privileges as possible.

In any case, I hope readers are aware that Spain, with what seems to me extraordinary magnanimity, does not propose that Britain forgo sovereignty over Gibraltar – only that she share it. That may not be the only possible way forward (and my efforts in Spain are devoted to trying to get the Spanish government to explore others), but it would have immediate advantages. It would enable Gibraltarians to retain their current relationship with the EU – including market access, free migration and even EU citizenship, along with their fiscal and commercial privileges – irrespective of Brexit.

I wish the people of Gibraltar would look afresh at the benefits shared sovereignty would confer. Unfortunately they seem equally united in two objectives that are in mutual tension: last year, they voted almost unanimously in favour of staying in the EU; in 2002, they voted almost unanimously against shared sovereignty. Finding a solution that accords with their wishes is therefore difficult. But it’s what I’m working for and what I’ve been urging on the Spanish government. I wish Dr Tilbury, and all friends of Spain, Gibraltar and the EU in Britain, would suspend pointless verbal hostilities and start helping.

Felipe Fernández-Armesto is William P. Reynolds professor of history, University of Notre Dame in the US.

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Reader's comments (8)

Sadly it appears to be Mr Fernandez-Armesto who has got it wrong, or not done his homework. It is outrageous that you are trying to rewrite history, especially on this type of forum - what is your agenda? I regret to say that your native Spanish heritage/influences seem to have clouded your judgement to the extent that your entire article flies in the face of accepted world history. Although there are many reputable and genuine sources for a true (or truer) reflection of history, I've decided to provide an easy-to-access link on this particular subject matter. Any reader who does not like the source used is welcome to find another genuine source, this type of information is readily available for anybody who wants to check:
Also, with all due respect, the other parts of your article where you decide to interpret old treaties, the applicability of international law and give your opinion on various other geopolitical matters seems to be misconceived at best, and sinister with an ulterior motive at its very ugly worst.
It is disappointing to read the reply by Felipe Fernández-Armesto which seems to simply repeat the same tired old Spanish nonsense about Gibraltar formulated by the dictator Franco's foreign minister Castiella who was deeply anti-British. Today we live in a modern age in which the rights of people are paramount. In this case the people are the Gibraltarians whose right to exist Spain consistently denies. It is incorrect to use the pejorative term ‘Colony’ to describe Gibraltar - Britain does not have colonies. Indeed Gibraltar has more self government than those strange 'historic' Spanish possessions in North Africa, which include the island of Perejil – a stone's throw from the Moroccan coast, and uninhabited, except by goats, yet claimed as part of Spain. I’m surprised he does not want Florida reclaimed as a Spanish territory. As in the letter he is a bit confused, I would remind him that Gibraltar did not vote to remain in the EU, the referendum was on whether the UK should remain. We joined with Britain in 1973 and will leave with them. As to the 2002 referendum on joint sovereignty, it was totally rejected then, and the bad behaviour by subsequent Spanish Government reneging on the 2006 Airport agreement and the continued harassment of Gibraltar would suggest the idea is even less popular now. As the contributor John Louis notes, interpreting old treaties in Latin into modern day concepts is a minefield, and its risible to read Spanish claims that Gibraltar does not have territorial waters because that is not mentioned in Article X of the Treaty of Utrecht (1713) when the concept was not formalised until later, and both Spain and the UK have acceded to UNCLOS(82) which is the current applicable law. But he is wrong about the meaning of territorial jurisdiction (Jurisdictione quapiam Territoriali ) which a senior QC explained to me related to control of the adjacent ‘Campo Gibraltar’ which was at the time a territory of the ‘Kingdom of Gibraltar’ and not anything to do with sovereignty of the area ceded in perpetuity to the British monarch. Although due to the economic distress in that part of Andalusia, its often suggested they would like to be part of the economic success that Gibraltar is today. The reality of modern Gibraltar is that the airport, the roads, the electricity and water systems, the telecoms, the internet, the housing, schools and indeed the University and all those things that comprise this modern territory are the exclusive property of the Gibraltar people who have wisely invested in those things to guarantee the education livelihood and welfare of our future generations who will live here. We are British Gibraltarians, we are not Spanish, Gibraltar is not Spanish and we do not need the Government of the Kingdom of Spain to confer rights on us, we simply need them to respect the rights we already have.
Congratulations to Felipe Fernández-Armesto for this clear, concise and well written article. I have checked link in comment #1 and no reference to Gibraltar is made in it. Maybe the author can be a bit less general, extract and list the relevant information to back his/her point. In the same manner comment #3 criticises the article, the commentator simply repeats "the same tired old Gibraltarian nonsense about Spain, formulated by the Gibraltarian establishment who is deeply anti-Spanish". I would like to remind to the reader that it is the very same United Nations who defines Gibraltar as a colony. The Spanish love Gibraltar, the Rock, and its shores because simply you cannot detach it from the surroundings. We just feel uncomfortable with its population not being part of the community of the area, contributing fairly to its development and care.
I am bemused by your last paragraph: 'The Spanish love Gibraltar, the Rock, and its shores because simply you cannot detach it from the surroundings. We just feel uncomfortable with its population not being part of the community of the area, contributing fairly to its development and care.' Why? Do the Spanish feel the same about Portugal and Andorra (or even France)? It is a land border - whatever its history. Does your discomfort also apply to Ceuta and Melilla? Even accepting them as an integral part of Spain, are they not detached from their surroundings? I am not British and have no strong views on Gibralter but I strongly believe that, where a land has (whatever the historical reasons) been very long inhabited by one people, then those current inhabitants should be entirely free to choose their sovereignty.
@ArdGall The reason you find no mention (or little mention) about Gibraltar in the link, is because that link was showing that Felipe Fernandez-Armesto was wrong about asserting Spain did not lose the War of Spanish Succession (so Gibraltar was not the main point there, just who the real victor of that war was). Spain did lose as it supported France and France lost the war, hence the vast transfer of French territories (as well as Spanish) to the British. Just because a relative of the French King was allowed on the Spanish throne does not mean the Spanish or French won the war. The Austrian Archduke that the British were supporting became Holy Roman Emperor, accordingly giving him the old Spanish Empire as well would have created a very severe imbalance of power in Europe - so the Bourbon was allowed onto the throne by the British and their allies after all. You should read up on the 'Concert of Europe' (political concert, I stress) and the historical efforts to maintain a balance of power in Europe, normal history books should explain all this, but you will need to look outside Spain for these I am afraid, it seems Franco's legacy really did try to brainwash most of his society and sadly this also reflects in Spanish history books. This was the true underlying reasons behind that war - to contain the French Empire of Louis XIV. France was contained, because they lost the majority of battles/wars played out across the world globe during that time. The main victor was England/Britain, and they got many of the French overseas territories - bringing some balance back to the European continent. Similarly, during Napoleonic France, it was largely the UK and some allies that succeeded in restoring balance to Europe. By way of analogy, this also happened with the Germans during WWI and WWII - it was Britain and the old British Empire (which originally included the USA as well) that rescued Europe from German Fascism and then Russian Communism too. The UK focused on maintaining a balance of power in Europe, not creating a British Empire in Europe (as others did or tried to do)! All of this is completely ignored by your friend Mr Fernandez-Armesto, instead he gives a version of history that only exists in Spain (and possibly the old Spanish Empire and ultra/extreme right-wing sympathisers). In respect of all his other fallacious comments about Gibraltar, normal websites and all Encyclopedias and history books (again, just not Spanish, old Soviet or old Nazi style encyclopedias/history books) will quickly and easily reveal the truth for all to see - so no need to post all those readily available links and sources here. On the other hand, we may soon see how others try to say modern/Western Encyclopedias (i.e. Encyclopedia Britannica) were written by those seeking to impose their own world views on others. I do hope that this clarifies the position sufficiently for ArdGall to understand.
Professor Fernández-Armesto article reflects the Spanish's view on the Gibraltar dispute. I find the tone of the article remarkably constructive. A reasonable review of the Gibraltar sovereignty dispute can be found in the 1999 Spring Bulletin of (Durham University's) IBRU Centre for Borders Research. It is available online There is not such a thing as a neutral report, but this one covers both sides of the dispute. In response to Mr Louis comments: Your presentation of the overall strategic issues around the Spanish Succession war is great but, for the Spanish, it was a war about the ruler of the country. It is not all that awkward (or "franquista") to think that the French side won, given that it was its candidate who became the new king. Apart from that, I guess I am not the only one that finds little merit in dismissing every Spanish claim on this dispute as "franquista".
@pespinasse The bemusing paragraph was intended to reinforce that my comments were not supporting a sovereignity claim. My view is that if you remove the border, grant the same rights and obligations on both sides and politicians (on both sides) refrain from using Gibraltar to their benefit, the problem will be solved alone in a generation time lapse. Otherwise we are comdemned to the actual confrontation or Gibraltar being transformed in Monaco's little brother. Both options are disastrous, especially for Gibraltarians.