No German support for British sovereignty over Gibraltar

Published: 10 May 2017 Author: Stefan Talmon

During the War of the Spanish Succession in August 1704 Anglo-Dutch forces captured Gibraltar from Spain. In the Treaty of Utrecht of 2/13 July 1713 Spain formally ceded Gibraltar to Great Britain. Article X of the Treaty provided:

“The Catholic King does hereby, for himself, his heirs and successors, yield to the crown of Great Britain the full and entire propriety of the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging; and he gives up the said propriety to be held and enjoyed absolutely with all manner of right for ever, without any exception or impediment whatsoever.”

Gibraltar became a British Overseas Territory. In the 18th century Spain on several occasions unsuccessfully tried to recapture Gibraltar by force. Since then, all Spanish governments have tried to reclaim the enclave from the United Kingdom. The question of sovereignty over Gibraltar has been an irritant in the relations between the two countries for more than 300 years.

Asked about the status of Gibraltar the spokesperson of the Foreign Ministry said on 8 May 2017:

“The question of the status of Gibraltar under international law has been highly disputed for many centuries, in particular between Spain and the United Kingdom. […] the Federal Government hopes that after centuries of international legal and political confrontation between different regimes in Spain and the British crown a reasonable solution may be achieved which would mean an amicable agreement between the two sides.

Perhaps the process of the United Kingdom’s withdrawal from the European Union that is starting now is a historic opportunity to take up and clarify these questions once and for all. […].

The position of the Federal Government could not be clearer: we wish for a sensible and amicable political agreement between those States that are at loggerheads with each other both politically and in terms of international law. These are Spain and the United Kingdom. In this context we will not side with one or the other.”

Asked to comment on the fact that both the United Kingdom and Spain were adamant that there was nothing to discuss and that the position under international law was crystal clear, the spokesman said:

“How shall I put it, this is the same situation as with regard to Crimea, although the two are not in any way connected. One side asserts that it is part of Russian territory; the other side says it is part of Ukrainian territory. On this question we have a clear position in terms of international law and politics, not so in this case [of Gibraltar].”

Unlike in the case of the Russian annexation of Crimea, where the German government has been outspoken in calling the annexation illegal under international law, Germany sits on the fence with regard to the legal status of Gibraltar. There may be two reasons for this: Germany either truly considers the question of the legal status of Gibraltar an open one or it is simply trying to avoid getting entangled in a legal and political dispute between two allies. However, by considering the question of sovereignty over Gibraltar an open one to be settled in negotiations between the United Kingdom and Spain, Germany is in fact undermining the legal position of the United Kingdom – which has been the territorial sovereign over Gibraltar for more than 300 years.

Category: Territorial sovereignty

 

Prof. Dr. Stefan Talmon LL.M. M.A

Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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