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The extinction of the Treaty of Utrecht

[Panorama, 13/6/02]
by Emilio Peire

In my recent article published in "Panorama" (16th May 2002) I attempted to show how the Treaty of Utrecht was superseded and invalidated by that most important political event, known as the Treaty of Versailles of 1783, freely negotiated by Britain and Spain after the former lost her colonies in North America and Gibraltar withstood the Great Siege, which lasted four years.

The following narrative will show how a Spanish writer argues for the extinction of the treaty by reference to established beliefs in International Law. In the middle 1950's, at the height of Franco's campaign against Gibraltar, Sr. Jose Lion Depetre had three documented articles published in the daily newspaper "ABC". These were intended to show the invalidity of the Treaty of Utrecht and consequently deny the British sovereignty of Gibraltar. They were "Gibraltar in International Law" (29/8/1954), "Gibraltar and the Treaty of Utrecht" (25/11/1954) and "Spain, Utrecht, Gibraltar" (18/12/1955).

Sr. Depetre examines the so-called Gibraltar problem solely and exclusively from the judiciary point of view, putting aside the colonial point of view, which was even then basic and fundamental, because decolonisation was the universal principle most enthusiastically accepted and Gibraltar was a typical colony. He thereby agreed with our decolonisation, i.e. self-determination.

According to Sr. Depetre it was necessary, above all else, to bear in mind the mentality prevalent at the time of the signing of the Treaty. Also, that the radical changes in circumstances since then could cause the extinction of the treaty by the application of the clause, rebus sic stantibus. He stated that Gibraltar was ceded in possession - not in sovereignty - by the Treaty of Utrecht. That was in 1713. But, treaties are not eternal and that of Utretch could not be an exception. Famous are the words of Funk Bretano y Sorel that define in his Precis de Droit de Gens, of 1894, the extinction of a treaty through the change of circumstances existing at the time of its signature, i.e., rebus sic stantibus!

"A treaty, which at the time of its implementation appears to be the most necessary and just, can become in time useless and abusive. The relative power of contracting states may alter, their intellectual culture and state of morality can change and the treaty no longer corresponds to their obligations, their rights and their respective interests. The treaty can become as injurious to the party that imposed it as unbearable to the one who suffers it. In short: in the changed circumstances the treaty goes against the natural force of things and the reason for its existence disappears. Attempts to maintain it will be in vain, it will crumble by itself and circumstances will force the states to its official repeal." The rebus sic stantibus clause is generally accepted in International Law, where it is recognised that legal right is mostly dependent of factors external to itself.

According to Sr. Depetre the Treaty of Utrecht can be considered extinct for many reasons including the following:

  1. The disappearances or transformation of the seventeen states that signed it.
  2. The succession of the Crown of Hanover, the separation of the Crowns of France and Spain.
  3. Illegality, in respect of the clause of the importation of slaves from Africa.
  4. The prohibition of the settlement of Arabs and Jews in the City.

Sr. Depetre's articles in what was then the Official organ of the Spanish Regime, intended to deny the legality of British sovereignty over Gibraltar. Today they serve to prove that the Treaty of Utrecht cannot be used as a legal document to deprive Gibraltarians of the right to exercise self-determination.

THE NEW STRATEGY

The fact that the United Kingdom and Spain are now suggesting the abrogation of the Treaty of Utrecht is further proof of the irrelevance of the treaty in respect of the our right to self-determination. Both countries, the former for military reasons and the latter for political reasons are adamant in denying the people of Gibraltar this inalienable right. Herein lies the reason why they are preparing to enter into a new treaty that would, under today's changed circumstances, legally deny us that right. For that purpose they need Gibraltarian representation. They have already hinted of a new open agenda process to follow, if and when they finalize the Brussels Process. Our main aim should be to prevent such presence and deny legality to the intended treaty.

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