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PANORAMA newsweekly, Gibraltar

7th December 1998

(additional comments in red, hyperlinks in blue)

In full for the first time. Official English translation of Matutes proposals for a Spanish Gibraltar

For the first time anywhere, PANORAMA is today publishing IN FULL the Matutes proposals for a Spanish Gibraltar. It is the official English translation.

It marks the first anniversary of their being presented at the meeting between the UK and Spanish Foreign Ministers in London on 10th December last year.

Since then, the proposals have been rejected by all political parties in Gibraltar and opinion polls have shown scant support for them.

The Gibraltar Government itself has urged Britain to formally reject them, while the Chief Minister has, on various occasions throughout the last 12 months, rejected them as unacceptable.

But the proposals remain on the table, as Mr Matutes likes to say, as they have not been formally rejected by the British Government.

To this end the SDGG are presenting to Prime Minister Mr Tony Blair on Thursday 10th December their petition with 12400+ signatures against the proposals.

10th December marks the first anniversary of the proposals presented by Spanish foreign minister Abel Matutes to Foreign Secretary Robin Cook at a meeting in London under the Brussels Agreement. They are reproduced here IN FULL.

We find ourselves once again observing the commitment which we made in our Brussels declaration of 27 November 1984, to meet at ministerial level in order to further the negotiating process established on that date with the intuition of settling our dispute over Gibraltar. Secretary of State, this is the first time that you will be taking part in this forum on behalf of the new British Government. That encourages us to call on your delegation to give fresh impetus to this process which, despite its undoubted usefulness, has not, at least from the Spanish point of view, achieved all of the desired results. In effect, the Brussels declaration expressly states that "questions of sovereignty" would have to be addressed in this negotiating process. In view of the continued Spanish claim to Gibraltar, it is clear that Spain's priority interest in initiating these negotiations was to explore together the ways and means by which we could settle this dispute and begin a stage of closer and more fruitful relations between Spain and the United Kingdom, as befits two countries which share the same democratic values, and are also partners in the project of European Union and Members of the same Alliance.

In return for that political commitment to negotiate, the Brussels declaration provided for a number of concessions (make that application of fundamental human rights) by Spain, in particular with regard to the free movement of persons, vehicle and goods and to air communications. All of those measures were implemented promptly by Spain (Lie- see restrictions). However, I have to say that that did not result in any evidence of a British willingness to negotiate on sovereignty, and we believe that the time has come to make a fresh attempt, on generous (!) terms, to create a stimulus to change the course of this process, which is now at its eleventh ministerial session and is clearly deadlocked: I do not believe that this situation is good for anyone. The difficulties which we have recently experienced with regard to NATO are a clear sign of the pernicious and contaminating effect of the Gibraltar question.

Before discussing further that attempt at a fresh approach, I want to spell out the actual content of our claim (see IAQ, Q1) to Gibraltar as regards sovereignty:

a) Spain seeks to recover the territory ceded to the British Crown under Article X of the Treaty of Utrecht in 1713. We recognize the legal validity of the Treaty of Utrecht. However, we believe that we are now very far from the exceptional circumstances in which the territory of Gibraltar was occupied by British forces in 1704 and ceded in 1713, from the outset giving rise to the Spanish claim. With the passing of time, it is no longer possible for allies and members to maintain a colonial situation which has lost its whole raison d'Ítre. That is why the United Nations has issued repeated resolutions and decisions expressing the need for our countries to negotiate the decolonisation of Gibraltar based on the principle of territorial integrity. Our relationship thus comes under new international law relating to decolonisation. (i.e. self-determination)

b) The isthmus to the north of Gibraltar was not ceded under Article X of the Treaty of Utrecht, as clearly shown by the text of that article, which states that the cession relates to "the Town and Castle of Gibraltar, together with the Port, Fortifications and Fort thereunto belonging", clearly (?) implying a contrario that the isthmus was excluded. The subsequent occupation by Britain is purely factual in nature and has never been recognized by Spain. Apart from the continued protests at such occupation, there is no Spanish act of acquiescence which can be invoked in support of any alleged right of prescription On the contrary, in maintaining our claim, we have been obliged both now and in the past to oppose any action which might be used as an argument by Britain in order to reinforce any claim to the isthmus.

c) Our position regarding the waters off Gibraltar is consistent with what I have said. Consequently, as the Spanish Government stated when it signed the United Nations Convention on the Law of the Sea on 5 December 1984, we do not recognize "any rights or situations in respect of maritime areas of Gibraltar not included in Article X of the Treaty of Utrecht of 13 July 1713 between the Spanish and British Crowns" (Only Spain does not recognise Gibraltar's territorial waters)

The overview which I have given of Spain's position in principle regarding sovereignty has invariably met with the same response from Britain, based on the preamble to the so-called constitution granted to Gibraltar by Her Britannic Majesty on 23 May l969, which contains the undertaking that "Her Majesty's Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another State against their freely and democratically expressed wishes". I will go on to discuss the importance which "the wishes" of the people of Gibraltar have for us. But before I do so, I would like to take a moment to consider what we understand today by sovereignty and whether the development of that concept and its present reality might show us the way to a solution

I must make it quite clear that our aim of recovering sovereignty over the colony of Gibraltar is permanent and can never be given up In making that assertion, my Government is expressing the unanimous wishes of the Spanish people (lie- in a recent poll 27% were against.  Most Spaniards do not have strong feelings on this matter) and the political forces which represent them. We simply cannot allow an amputation of the integrity of our territory (which happenned 300 years ago!) which represents a serious anomaly for our existence as a State(?). That integrity, which has been a constant in Spanish foreign policy, will be maintained, and I can assure you that we will not allow manoeuvres or attention to other interests to divert us from that path. The normal development of our bilateral relations, and of our joint participation in international fora, the Alliance and the European Union, will inevitably and lamentably be affected by the dispute for as long as we fail to make headway with our claim to sovereignty.

Nevertheless, while our position remains firm in this regard, we must bear in mind that the deadlock in our negotiations is perhaps due in part to the fact that the two parties and the people of Gibraltar are tied to a concept of sovereignty which belongs to the past and which has now acquired a new meaning. The profound change in circumstances to which I am referring is particularly clear if we consider our joint participation in the process of European construction and the process of decentralization which has characterized the construction of a democratic Spanish State composed of autonomies based on the l978 Constitution. Sovereignty as a legal and historical right is still the same, and that is what our claim relates to. On the other hand, the effective powers of State traditionally viewed as part of that concept have changed and to that extent our claim to sovereignty over Gibraltar has acquired a different dimension and content.

That thought may be of interest when we refer to the traditional stumbling block in our negotiations: I am referring to "the wishes of the people of Gibraltar. I first of all say that the undertaking entered into by the British Crown with regard to "the wishes" of the people of Gibraltar is not legally binding on Spain (translation- we don't care about the wishes of the people of Gibraltar). They will therefore understand why we ruled out consideration of those wishes as an obstacle to negotiations on sovereignty between the two States parties to the Treaty of Utrecht. Simply put, to us the preamble of the Gibraltar constitution is an arrangement between third parties, a further difficulty created by the British Government of the time in order to resist the clear call issued by the United Nations for a bilateral solution regarding the decolonisation of Gibraltar. Now, we are aware that the establishment of such conditions is an objective obstacle to the settlement of our dispute since, as a democratic(?) State, we cannot conceive of (what's this, then?) a solution to the problem of sovereignty which is forcibly imposed on the will of the citizens of Gibraltar, who would be affected by a change in the situation regarding sovereignty. The people of Gibraltar need not worry, they can forget the absurd(?) propaganda about Spain's alleged intention of forcing them into a result contrary to their interests.

From our point of view, however, the important thing is that the consideration which the British Government has thus far given to "the wishes" of the people of Gibraltar has been a subterfuge or excuse for not entering into in-depth negotiations on the problems between us regarding Gibraltar. (Or maybe HMG is actually committed to democracy) The 1967 referendum whose result was certainly one of clear opposition to the transfer of sovereignty - even continues to be used as an argument, as if we were still in the same circumstances now as we were then, particularly in Spain (so, what's changed?). In the light of that self-interested use of "the wishes" of the people of Gibraltar, I would take advantage of the new British Government's desire to enter these negotiations in a fresh spirit to suggest to you, Secretary of State, that without detriment to the importance which those "wishes" must continue to have for the United Kingdom in view of the 1969 "Constitution", we could begin to discuss a general arrangement which would include sovereignty, in order to look at the advantages and disadvantages of a settlement to the dispute also from the viewpoint of the people of Gibraltar. I stress that we must not act as though the present political context were the same as that in which the idea of the free and democratic expression of "wishes" was conceived, since there is no justification today for such a precautionary measure to allay the Gibraltarian people's fears of being incorporated into a non-democratic Spanish political system.

I want to contribute to this fresh approach to the negotiating process by presenting an initial picture of how we see Gibraltar's future, once our aim of gaining sovereignty has been achieved.

We have already had occasion - at the recent Coordinators' meeting in Madrid - to submit a pro memoria summarizing the proposal which we are making to Gibraltar in the context of a general arrangement. I had already had the opportunity of outlining those ideas in an interview which I gave to the media in Gibraltar last June. So I am not revealing anything new, since both you and the people of Gibraltar are aware of the main points which we would be prepared to study and resolve together in the event that, as I hope, those ideas are of interest in unblocking this process. I would like to restate those ideas in this context and to make them an official Spanish proposal, in addition to stressing their most important policy aspects. In short, we are looking at the following scenario:

1. Article 144 of the Spanish Constitution authorizes the Cortes Generales to extend the system of territorial autonomy which applies to the rest of Spain to those territories not included in the provincial organization, which would be granted a statute of autonomy. My Government's proposal is that Gibraltar should have a statute similar, as regards its level of political and administrative autonomy, to that of the Spanish Autonomous Communities. That involves the following, in particular:

The democratic rights and freedoms established and protected by the Spanish Constitution of 1978 would be automatically extended to Gibraltar, which has them set out in a similar way in its 1969 Constitution. (except our right to self-determination)

As in the more advanced statutes of autonomy, Gibraltar's statute would protect its individual linguistic and cultural identity in a Spanish context.

Negotiation of the statute would include determining which powers would be granted to the Government of Gibraltar in accordance with the definition of the powers which may be assumed by the autonomies pursuant to Article 148 of the Spanish Constitution (which would be rather less than the level of self-government we have now)

The statute would also provide for the organization of the territory's institutions of self-government, including the special judicial system.

It would likewise provide for any special arrangements which may be agreed in respect of the economic and tax system. In that context, we would not have any objection to accepting the present definition of Gibraltar's status within the European Union.

2. With regard to the individual status of the people of Gibraltar, it is not our wish to force them to change their nationality and we could negotiate a Special preferential system for acquiring Spanish nationality or maintaining dual nationality. (No thanks!)

3. As a guarantee to the people of Gibraltar, we are prepared to accept a transition period during which sovereignty would be exercised jointly by Spain and the United Kingdom, at the end of which transfer to Spain would be completed. That formula was offered by my predecessor Fernando Moran in 1984 and I renewed it to your predecessor Mr. Rifkind at the beginning of this year. Naturally, the arrangements for the transition period, or the possibility of looking at another, similar formula, would be open to negotiation. This offer of a transition period as a guarantee would respond to the wish recently expressed by the Gibraltarian authorities to request a constitutional reform which would not involve losing the link with the British Crown.

That is a summary of the judicial and political system which we would be prepared to explore with you. And, in the future, with the people of Gibraltar. In a recent speech here in London, Mr. Caruana surprised us by appearing willing to study new proposals on a future new status for Gibraltar provided that they are acceptable to its people. I sincerely hope that that will be the case, since his words appear to refer to a proposal such as the one which I have just set out, a serious proposal made in good faith which offers Gibraltar an obvious improvement (no it wouldn't) as regards its present situation and future prospects:

First, our proposal represents an improvement because, terms of legal status, it far surpasses that which the colony currently enjoys. It is true that Gibraltar has been granted its own legislative system, with its own institutions, which implies a guarantee of democratic co-existence. However, the l969 Constitution describes a typically colonial system in which, above the local authorities, there is a Governor representing the British Crown who retains extensive discretionary powers to impose legislation or to veto laws approved by the legislature of Gibraltar. Only a few years ago there was still talk of the possibility that the Governor would suspend the constitutional guarantees (which the Government of Gibraltar was blatantly misusing) and assume direct control of the colony. In the Spanish system, on the other hand, there is a genuine distribution of power between the State and the autonomies: the powers of each are expressly limited by law and any conflict between them is thus dealt with through the legal system, being decided by the high court which is the constitutional court.

The Government of Gibraltar would thus have (de)increased powers compared to the present situation, while maintaining his [economic] prerogatives intact. Considerable as it is, that improvement should also be viewed from another angle, since once the new situation is established as part of a solution to the problem of sovereignty, the present tensions inevitably and directly deriving from our continued claim would cease to exist. Clearly, these political tensions mean that Gibraltar cannot contemplate or plan a prosperous future since it lacks firm support and cooperation (we'll hamper it at every turn), both at national and European level, which would otherwise devolve to the Spanish State or to Spain and the United Kingdom jointly.

In view of those undoubted advantages and given the receptive frame of mind lately evidenced by Mr. Caruana, I sincerely believe that it would be inexplicable if these offers were not received by Britain and especially by Gibraltar with respect and in a spirit of openness. They represent a considerable effort at conciliation by the Spanish Government intended to offset the exaggerated fears which the people of Gibraltar seem to have regarding any option for the future which does not involve maintaining the present status quo.

That attitude is difficult to understand given that the "status quo", which would inevitably continue in future in the event of a rejection of our ideas or if negotiations were blocked indefinitely, does not look promising for Gibraltar or for Spanish-British relations. As I said at the start, it is impossible to imagine that Spain would give up what it considers as a legitimate claim Our persistent efforts to recover sovereignty over Gibraltar would have to continue as they have thus far: (we will go on Gibraltar-bashing until we get our way)

First, we would have to continue to prevent Gibraltar from existing and prospering at the expense of (make that "to the benefit of") Spain, and in particular at the expense (benefit) of the area near Gibraltar. which suffers the worst effects of the presence in its vicinity of a large free market which is virtually uncontrolled in its own territory. I am referring mainly, but not exclusively, to the serious problem of illegal trafficking and unfair competition (See Spanish Govt's own admission that these allegations are false) We are aware of the efforts made to curb the most obvious trafficking, and the security forces and customs authorities on both sides of the fence have cooperated effectively on occasion. However, we do not agree (yes you do!) with the propaganda attempt of the Gibraltar authorities to persuade us and the international community that tax evasion and money laundering have been eradicated in Gibraltar. All too frequently, surveillance of the fence (frontier) has detected considerable sums of money being transported (evidence?), and those are only an indication of the scale of the operations being carried out in Gibraltar under the protection of a company and tax system which lacks transparency. The concern aroused in Gibraltar by the announcement of the implementation of European directives requiring such transparency, is sufficiently indicative. On the other hand, the obscure circumstances surrounding the resignation of the British official sent to the colony in order to try to introduce order into the investigation of illegal trafficking were extremely worrying to us and, I believe, to the British authorities. Specifically, it is an indication of the existence of a web of crime possibly protected by the complicity of local police, who harassed Mr. Browne precisely because he sought to reveal the nature of the obscure companies resident in the colony.

Secondly, maintenance of the status quo will certainly mean our continued vigilance in counteracting moves to separate Gibraltar from British cover, since this is incompatible with the status of the colony in international law. Those moves clearly contradict the spirit of our negotiating process, based on the United Nations resolutions and the Brussels declaration, which call for efforts to create understanding between the United Kingdom and Spain regarding sovereignty:

Our action to stop any deviation from that path will be particularly strong in the context of Europe. The status of Gibraltar under Article 227(4) of the Treaty of Rome presupposes and requires that the United Kingdom should effectively take responsibility for representing the territory in international relations, including intra-Community relations. We will continue to oppose Gibraltar's attempts to establish itself as an interlocutor (we won't allow Gibraltar's voice to be heard- the truth is too embarrassing!) in respect of the institutions and other Member States of the Union, and I am referring in particular to various actions which appear to be unrelated but which share the same objective of giving Gibraltar its own international identity:

The claim that the judicial authorities and officials with responsibility in financial matters (banking, insurance) should be considered independent and direct interlocutors with the national authorities of the other Members of the Union. (see restrictions)

The issue of identity cards claiming to be necessary as valid travel documents despite the fact that they are not issued by national authorities as required. (see restrictions)

The attempt to record on passports and driving licences specific references to Gibraltar which are a clear departure from the European rules in force and which. incidentally. could cause the people of Gibraltar problems when-exercising their right to freedom of movement which, as such, we fully respect (like hell they do!). (see restrictions)

Similarly, I believe it necessary to reiterate that, if the present situation goes on, we will continue to oppose any change in the constitutional status quo of Gibraltar which detracts from the momentum established by the Brussels Process. I am referring to the recent announcements and polls of the Gibraltar authorities expressing the view that they would like a change of status which, while maintaining a theoretical link of sovereignty with the United Kingdom or even complete integration, would seek to get round the United Nations instructions regarding decolonisation and Spain's desire for a bilaterally (i.e. without Gibraltarian involvement) -negotiated decolonisation. Such attempts are not only a breach -of the negotiating process, they are also contrary to the spirit of the Treaty of Utrecht (no, they're not)- they observe the letter of that Treaty while failing to respect its spirit. We are aware of the assurances recently given by the British authorities to the effect that the status quo cannot be changed without taking into account the "Spanish dimension". We appreciate the realism (appeasement) and responsiveness of those remarks, which show that the British authorities realize that we would view in a very serious light any attempt unilaterally to change the situation. Any such attempt would be viewed all the more seriously in the context of a very generous(!) and politically courageous negotiating offer such as the one which I have just put forward.

Secretary of State, I stress once again that our proposal is made in good faith (believe this and you'll belive anything!), and that if accepted it would open up to the people of Gibraltar very (un)promising prospects for the future under the joint protection, during the first phase, of our two countries. I invite you to put our proposal before your Government so that they can study it with respect and make the people of Gibraltar see the undoubted (dis)advantages of receiving it in a constructive manner. For the moment, I propose that when informing public opinion of the outcome of our meeting, we should refer to the following points:

In order to re-launch the Brussels Process, the Spanish delegation has set out the main points of the judicial and political status which it could grant Gibraltar in the framework of an agreement on the transfer of sovereignty. That could include a transition period of joint sovereignty as a guarantee to the people of Gibraltar.

The British delegation has listened with interest to the Spanish proposals, which for the first time discuss in detail the foreseeable future for Gibraltar. Those proposals merit thorough study by the British and Gibraltarian authorities, and this will be done without obligation in the coming months. To that end, a working group will be formed, chaired by two coordinators of the Brussels Process. (The Gibraltar Government was not allowed to be present)

(We would not have any objection if, in your reply to our proposal, you wish to refer - as I assume you will - to observance of the wishes of the people of Gibraltar in accordance with the 1969 Constitution)
(- who have said NO)
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