Jun 04 – The Implementation Of Self-Determination In Gibraltar
The SDGG has commissioned Dr Jamie Trinidad to prepare three short articles on self-determination. Today we publish the final article. Please check our web for the first two pieces.
Dr Jamie Trinidad is a Fellow and Tutor of Wolfson College, Cambridge and an Associate of the Lauterpacht Centre for International Law, University of Cambridge. He is also a barrister at the Gibraltar law firm, Isolas. He specialises in the law of self-determination and international territorial disputes, and has accompanied the Gibraltar delegation to the UN as a legal advisor on a number of occasions.
III. THE IMPLEMENTATION OF SELF-DETERMINATION IN GIBRALTAR
The implementation of the right to self-determination in Gibraltar has not been straightforward, and it remains a work in progress. It has been hampered by a combination of factors, most notably the Spanish sovereignty claim, occasional tensions between local interests and British strategic interests, and an almost total absence of political will in the UN. Regrettably, the UN Special Committee responsible for overseeing Gibraltar’s decolonization is less concerned with the Gibraltarians than it is with the broader ramifications of the Anglo-Spanish territorial dispute.
The Special Committee in question was established by the UN General Assembly in 1961 to monitor the implementation of the Colonial Declaration. The Committee originally had 17 members, but it soon increased its membership to 24, and it became known popularly as the ‘Committee of 24’ (it is still referred to as the Committee of 24 today, even though it now has 29 members).
The Committee of 24 – like the General Assembly as a whole – includes a significant number of developing states that were, within living memory, under the colonial domination of one European power or another. When Gibraltar’s representatives first appeared before the Committee in the early 1960s, many developing states – still scarred by the legacy of economic exploitation and racial oppression – were unable to understand why a colonial people like the Gibraltarians should wish to retain its links with the colonial power. They were suspicious of Britain’s desire to maintain a presence in Gibraltar, and – rather disparagingly – they considered the Gibraltarians to be ‘colonials by consent’. They were encouraged in this respect by Spain, which has attempted to use the decolonization process as a vehicle for pursuing its sovereignty claim.
Since the 1960s, the General Assembly’s stance towards Gibraltar has softened to some extent. More states are now aware of the reality of life in Gibraltar. They are aware that a distinctive population has developed in the territory over hundreds of years and that this population does not wish to be treated as a pawn in a territorial dispute between Spain and Britain – it is a population that wishes to be taken seriously in its own right. This heightened international awareness is the result, in part, of a concerted campaign by successive generations of Gibraltarian politicians and by members of civil society (including the SDGG), who have sought to put Gibraltar’s case before international forums like the UN, and to counter Spain’s attempts to undermine the interests of the Gibraltarians.
During the same time period, international law has developed progressively in a direction that favours Gibraltar’s cause. The International Court of Justice has made clear in its case law that the right of self-determination applies equally to all Non-Self-Governing Territories. Some international lawyers have attempted to argue in their writings that Gibraltar should be treated as an exception to the self-determination rule, but this view remains highly controversial and it has never been endorsed by an international court or tribunal.
Self-determination may be a legal right, but its practical implementation still hinges on political factors. Spain lacks a critical mass of support for its sovereignty claim within the UN, but it still has enough support – especially within the Committee of 24 – to prevent Gibraltar’s removal from the list of Non-Self-Governing Territories, at least for the time being. With the international political process in a state of paralysis, Gibraltar has made incremental steps towards greater self-government, as a result of political reforms like the 1969 and 2006 Constitutions, and initiatives like the 1999 Matthews v UK case in the European Court of Human Rights, which resulted in Gibraltarians gaining the right to vote in elections to the European Parliament.
The UN refuses to say whether further democratic reforms are necessary before Gibraltar can be considered internationally as a self-governing territory. As a result, Gibraltar’s international status is in limbo. It will fall to future generations of Gibraltarians to ensure that Gibraltar moves as far as possible down the path of internal self-government, and towards an international status befitting its modern democratic character.
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