Gibraltar, the Brexit, the Symbolic Sovereignty, and the Dispute. A Principality in the Straits?

Autor:Alejandro del Valle Gálvez
Cargo:Full Professor of International Law, Holder of the Jean Monnet Chair on Borders and Migration, University of Cádiz. Visiting Research Fellow at the Asser Institute-Centre for International and European Law, The Hague.
Páginas:67-96
 
EXTRACTO GRATUITO
67
Cuadernos de Gibraltar – Gibraltar Reports
Número 2/Issue # 2, 2016-2017, pp. 67-96
ISSN 2444-7382
GIBRALTAR , THE BREXIT, THE SYMBOLIC SOVEREIGNTY,
AND THE DISPUTE. A PRINCIPALITY IN THE STRAITS ?
Alejandro del VALLE GÁLVEZ1
I. NEGOTIATION DEADLOCK AND CROSSBORDER COOPERATION – II.
GIBRALTAR AND BREXIT: CHANGES IN THE MAIN INTERNATIONAL
LEGAL FRAMEWORKS – III. THE NEED FOR A NEW STATUS IN THE EU AND
THE KEY ROLE OF SPAIN IN TUE ART. 50 WITHDRAWAL NEGOTIATIONS
– IV. REMAINING IN THE EU: SCOTLAND AND THE ‘GREENLAND’
MODEL AND THE MICRO STATE-STYLE RELATIONSHIP – V. IS JOINT
SOVEREIGNTY A SOLUTION? – VI. A PROVISIONAL MODUS VIVENDI
VII. LOOKING FOR NEW IMAGINATIVE PROPOSALS. A PRINCIPALITY
IN THE STRAITS? THE SYMBOLIC SOVEREIGNTY FORMULA – VIII.
CONCLUSIONS
ABSTRACT. The outcome of the United Kingdom’s ‘Brexit’ referendum on leaving the European
Union necessarily entails both a reconsideration of the status of Gibraltar and changes in Spain’s pers-
pective on a solution to the dispute. Following Brexit, negotiations on the UK’s withdrawal from the
EU will not only pave the way for a new European and international legal framework, but will also
create a historic opportunity for Spain to rede ne its relationship with Gibraltar, offering the possibi-
lity of new approaches to resolve this historical dispute.
After the crisis of 2013, negotiations reached a stalemate, but the unexpected outcome of the Brexit
referendum could have tragic consequences for Gibraltar because the obligation to negotiate the UK’s
withdrawal from the EU will likewise oblige Gibraltar to rede ne its legal status with the EU, which
constitutes the legal framework of greatest practical daily application, together with two other interna-
tional legal frameworks, namely the Treaty of Utrecht and the UN declaration on decolonisation. The
European framework will continue to apply for at least the two years during which withdrawal nego-
tiations are held, providing suf cient legal certainty concerning applicable law in the coming years.
However, the effects of uncertainty could have a very negative impact on the economy of Gibraltar,
whose population adopted a clear stance in favour of ‘Bremain’ in the referendum. Furthermore, a
possible return to the 1713 Treaty of Utrecht has raised fears of the very probable legality of closing
the border, at Spain’s instigation, if EU law ceases to be applicable in the future.
The unavoidable renegotiation of the status of Gibraltar within the EU will inevitably involve Spain,
which in 1986 did not question the status endowed in 1972. In the present context, however, Spain
could leverage the requirement for unanimity at several crucial moments during the process of nego-
tiating British withdrawal as regulated by Art. 50 of the Treaty on European Union (TEU); thus, va-
rious possible future scenarios for Gibraltar, such as the Norwegian or Swiss models or the antecedent
of Greenland, will depend on Spain’s consent. In addition, solutions that seek to maintain application
1 Full Professor of International Law, Holder of the Jean Monnet Chair on Borders and
Migration, University of Cádiz. Visiting Research Fellow at the Asser Institute-Centre for
International and European Law, The Hague.
CUADERNOS DE GIBRALTAR – GIBRALTAR REPORTS
Num 1,Número/Issue # 2, 2016-2017 | ISSN 2341-0868
DOI http://dx.doi.org/10.25267/Cuad_Gibraltar.2017.i2.05
68
Cuadernos de Gibraltar – Gibraltar Reports
Número 2/Issue # 2, 2016-2017, pp. 67-96
ISSN 2444-7382
Gibraltar, the Brexit, the Symbolic Sovereignty and the Dispute. A Principality in the Straits?
of the European Single Market to Gibraltar would in practice be unworkable in the international arena,
because Gibraltar is not part of the British State and its only status under international law is that of a
territory awaiting decolonisation in a process supervised by the United Nations.
At the same time, Brexit has opened a window of opportunity for resolving this historical dispute,
which encompasses both peaceful coexistence between Spain and the small neighbouring community
of Gibraltar just over the border, and the question of sovereignty that underlies the dispute with the
United Kingdom. The acting Spanish Government took two important decisions in 2016: it announ-
ced the need to negotiate the status of Gibraltar outside the framework of TEU Art. 50, and it proposed
joint sovereignty. This historic moment requires strategic decisions supported by broad domestic con-
sensus in Spain, since it is a key issue strongly symbolic of Spanish foreign policy which may have
important domestic and international consequences.
Spain now has the opportunity to adopt a strategic approach that incorporates a new narrative and
focus for Gibraltar, and which addresses the pending issue of regulating cross-border relations and
coexistence with the people of Gibraltar. The unanimous support given in 2016 by all political parties
for a European Grouping of Territorial Cooperation (EGTC) with Gibraltar within the EU framework
demonstrates that signi cant changes are possible for cross-border coexistence. Gibraltar and Campo
could even adopt a common approach to Brexit and its consequences for Gibraltar and the region,
enforcing this in their respective States and the EU as negotiations begin.
The format and content of the joint sovereignty proposal announced by Spain is the same as that of
others presented or negotiated previously. But the 2016 Spanish proposal of Joint Sovereignty has
structural de ciencies, which make it unworkable in practice. Several objective questions can be
raised: UK and Gibraltar have yet rejected this proposal; it was made unilaterally by the conservative
Government of M. Rajoy, without looking for previous supporting consensus inside Spain; and the
most practical problem which is that the proposal inextricably links cross-border cooperation with the
resolution of the sovereignty dispute, this creates an impasse given that both the UK and Gibraltar
have already rejected joint sovereignty.
Instead of Joint Sovereignty negotiations as the answer for the Gibraltar question, the article advocate
a twofold approach in the current historical negotiating situation for the UK’s departure from the EU:
a provisional Modus Vivendi for cross-border coexistence, and in parallel an agreement to seek a new
international and European model for Gibraltar, trying to put an end to historical controversy.
A provisional Modus Vivendi for the cross-border coexistence with Gibraltar could be an interim
agreement to regulate the aspects that most urgently need the daily normalization. Especially the bor-
der crossing by the Border/Fence, but also others such as the issues of transparency and economic- -
nancial collaboration, navigation and jurisdiction over Bay waters, or the use of the airport.
This historic moment could be conducive to moving forwards in new and imaginative ways, with
initiatives such as that of ‘symbolic sovereignty’ formula via the proposed Principality of Gibraltar
or City of the British and Spanish Crowns linked to the EU, which offers suf cient constitutional and
international margins for consideration. This proposal of the Two Crowns Principality, linked to the
EU, would restore Gibraltar to the Spanish nation and sovereignty, in addition to incorporating it into
the EU as part of the Kingdom of Spain, ensuring the maintenance of its current organisation and
powers and entailing agreements on Gibraltar’s economic and nancial regime and British retention
of its military bases.

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