Gibraltar has become a major issue for the UK during the Brexit talks. While bringing old sovereignty issues to the table, a withdrawal from the single market might be a hard blow for the citizens. However, it is a great opportunity for us to speak about the legal status of Gibraltar and the controversy around it.

During the War of Spanish Succession (1704) a fleet commanded by George Rooke and George von Hessen-Darmstadt conquered Gibraltar, the boys were back in town. British ownership was later recognized in the Treaty of Utrecht (1713). Nevertheless, let’s take a look at Public International Law in order to clarify the riddle.

According to the Chapter XI of the United Nations Charter, Gibraltar is a non-self-governing territory (UN terminology for: Was it yours? My bad) which means that Gibraltar is a territory “whose peoples have not yet attained a full measure of self-government” (article 73 of the Charter). Until that goal is achieved, UN members must help “to develop self-government”. It sounds a little odd but we have to understand that non-self-governing territories are places that are still subject to decolonization and, thus, we have to take a look on Resolution 1514 (XV) adopted by the UN General Assembly. The Resolution, also known as the Declaration on the Granting of Independence to Colonial Countries and Peoples, enacts in the second point:

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development

At this point, we have to make a difference between res nulius (latin for: I got here first, mate) and colonization due to the fact that gaining possession of a land considered res nulius would have the implication that self-determination could come via referendum. However, this wasn’t the case and because of that the UN didn’t accept it and neither did Spain.

There have been many issues regarding the future of Gibraltar and we know that it is of great importance because of geopolitics and tax related issues. According to Spain, the land must be returned to the former owner and it doesn’t accept the reasoning behind the referendum on the grounds that British colonized and brought their citizens there. On the other hand, the inhabitants feel that they belong to the UK.

The conflict, now, has become a mayor issue for the Brexit negotiations because it has been detected on the EU negotiation draft document that Spain would decide wether the agreement between the EU and UK could be applied on Gibraltar or not. This has been considered, de facto, veto power for Spain and it has aroused criticism. Many politicians and newspapers are determined to see Gibraltar as a potential conflict and I don’t think this will be the last time we will be hearing about the topic.

Asier Hernandez for Apricot-Lawyer.com

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