The British [11] and Gibraltarian governments assert that Gibraltar has been effectively decolonised.[12][13][14][15] On the other hand, the Special Committee on Decolonization maintains Gibraltar on its list of Non-Self-Governing Territories.[16] Spain opposes any attempt to remove it from this list[17] and Spanish commentators still describe Gibraltar as a "colony".[18][19]
Since the Anglo-Dutch capture of Gibraltar in 1704, Spain has tried to recover it by both military and diplomatic means. The 18th century saw three unsuccessful sieges (1704, 1727 and 1779-83). The decline in Spain's naval power and the British world preeminence during the 19th century made any recovery attempt by Spain unthinkable.[20] The claim was reactivated during the 1950s and especially during the 1960s by the Spanish dictator Francisco Franco. However, the quest for Gibraltar is largely a cross-ideology issue[clarification needed] having been supported by politicians and public figures of any political sign[clarification needed] for more than three centuries. In that sense, the president of the Spanish Republic in exile, Claudio Sánchez-Albornoz graphically stated:[21] "There cannot be a Spaniard worthy of the name, who can write, without blushing, that Gibraltar is not part of Spain. And if there is anyone who can write that without blushing, I take the liberty of blushing for him, as a liberal Spaniard in exile."
Reclaiming the territory by peaceful means remains the policy of successive Spanish governments.
The traditional Spanish position is based on territorial integrity, as per UN Resolution 1514 (XV) (1960) which according to Spain complements and constrains the right to self-determination: "Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations."
During the 1960s, the UN General Assembly passed two resolutions on the issue (2231 (XXI), "Question of Gibraltar"[22] and 2353 (XXII), "Question of Gibraltar"[23]). The resolutions on the decolonisation of Gibraltar focused on the "interests" and not the "wishes" of the Gibraltarians. The latter resolution states that:
any colonial situation which partially or completely destroys the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations and especially with paragraph 6 of Resolution 1514 (XV) of the General Assembly [...] Invites the Governments of Spain and the United Kingdom of Great Britain and Northern Ireland to resume without delay the negotiations provided for in General Assembly Resolutions 2070 (XX) and 2231 (XXI), with a view to putting an end to the colonial situation in Gibraltar and to safeguarding the interests of the population.
From such a point of view, Gibraltarians are seen as mere "settlers" from the United Kingdom and other countries and only their interests, not their wishes (as the right to self-determination would involve), need be safeguarded. This point of view is supported by the fact that following the 1704 capture of Gibraltar by Anglo-Dutch troops, only around 70 out of the original 5,000 Spanish inhabitants chose to remain in Gibraltar.[24] Therefore, Spain has insisted that the Gibraltar dispute is a purely bilateral matter with the United Kingdom and has ignored the role and will of the Gibraltarians.
The first formal proposal on how to achieve the return of Gibraltar to Spain was made on 18 May 1966 by the Spanish Minister of Foreign Affairs, Fernando Castiella. The proposal comprised three clauses:[25][26]
The proposal was rejected by the British Government and by the Gibraltarians, which overwhelmingly voted to remain under British sovereignty in a referendum held in 1967 (12,138 to 44).
No further success for the Spanish claims was achieved for the following forty years. In view of that, the Spanish position seems to have softened, being redirected towards some form of temporary or permanent arrangement to achieve joint sovereignty, which has been proposed by Spain and discussed with the British Government. Such a proposal was tabled by the Spanish Minister for Foreign Affairs, Fernando Morán, in 1985. The details of the proposal were not made public, but information released showed an offer on a treaty with the United Kingdom in order to "re-integrate" Gibraltar with Spain, while preserving Gibraltarians' way of life. They would keep their British nationality, as well as their existing political and labour rights, self-government and institutions. Morán proposed that a condominium or leaseback arrangement should be agreed, over a 15 or 20-year period.[27] This proposal was not formally rejected by Douglas Hurd, the then British Foreign Secretary, until 1993.
In 1997 a second proposal was made by the Spanish Minister for Foreign Affairs, Abel Matutes, foreseeing a hundred-year period of joint sovereignty before a definite transfer to Spain.[28] A similar scheme was provisionally agreed on between the Spanish and British governments in the spring of 2002, but this was eventually abandoned, after sustained opposition by the Gibraltarians which included the Gibraltar sovereignty referendum of 2002.
In his evidence to the UK ParliamentForeign Affairs Committee in 2008, Jim MurphyMP, Minister of State for Europe stated:[6]
The UK Government will never — "never" is a seldom-used word in politics — enter into an agreement on sovereignty without the agreement of the Government of Gibraltar and their people. In fact, we will never even enter into a process without that agreement. The word "never" sends a substantial and clear commitment and has been used for a purpose. We have delivered that message with confidence to the peoples and the Governments of Gibraltar and Spain. It is a sign of the maturity of our relationship now that that is accepted as the UK's position.
On the other hand, the British Government has ruled out both the independence of Gibraltar and its integration into the United Kingdom. With regard to the independence, it refers to the Treaty of Utrecht as, according to the British view, it would require Spanish consent:[29]
I will note that, in the view of Her Majesty's Government, Gibraltar's right of self determination is not constrained by the Treaty of Utrecht except in so far as Article X gives Spain the right of refusal should Britain ever renounce Sovereignty. Thus independence would only be an option with Spanish consent.
The option of Integration was rejected on 26 June 1976, when the British Government issued the Hattersley Memorandum rejecting the integration in order to:[30] "avoid innovations which might result in prolongation of the frontier restrictions imposed by Spain."
Gibraltarians argue that the Spanish claims are baseless, pointing to the right to self-determination of all peoples, guaranteed and enshrined by the UN, according to the UN Charter. Its article 1 states that "The Purposes of the United Nations are ... to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples."
To the same section 2 of Resolution 1514 (XV) states: "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."
Furthermore, resolution 2231 (XXI) itself recalls and demands implementation of Resolution 1514(XV) (guaranteeing Gibraltar's right to self-determination) and therefore the Spanish claim for its territorial integrity (which would not be affected by Gibraltar's decolonisation) cannot displace or extinguish the rights of the people of Gibraltar under resolution 1514(XV) or under the Charter. From this point of view, any additional right that Spain could claim by virtue of the "reversionary" clause contained in the Treaty of Utrecht is overruled and annulled under article 103 of the UN Charter: " In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
Finally, it is argued that there is in fact no principle in International Law or UN doctrine that can displace the inalienable right to self-determination. In this regard, in 2008, the UN 4th Committee rejected the claim that a dispute over sovereignty affected self-determination, affirming it to be a basic human right.[31]
The Gibraltar Government has also argued that Gibraltar is a British territory and therefore by definition not an integral part of any other state, implying that Spain's territorial integrity cannot be affected by anything that occurs in Gibraltar: "Even if integration of a territory was demanded by an interested State it could not be had without ascertaining the freely expressed will of the people, the very sine qua non of all decolonisation."
In a referendum held in Gibraltar in September 2002, Gibraltarian voters rejected even partial Spanish sovereignty.[32]
Speaking to the UK Parliament Foreign Affairs committee in March 2008 Peter Caruana the Chief Minister of Gibraltar noted:
Spain does not dispute that Gibraltar is properly, in law, British territory. Therefore, this is not disputed land. She has a political claim to the return of Gibraltar sovereignty, but she does not dispute the fact that in proper international law, she ceded sovereignty to Britain in perpetuity and therefore it is undisputed British sovereign territory.[33]
Gibraltarians seem to remain mistrustful of Spain despite improved relations.[34][35][36]