In response: Gibraltar, universities and the EU

Reading Times Higher Education rarely makes me suffer but Daniella Tilbury’s piece left me in agony – not least because I sincerely wish Dr Tilbury, her university (the University of Gibraltar) and all Gibraltarians a happy issue out of the afflictions Brexit brings.

It’s bad enough to have former Conservative leader Michael Howard’s hostility and foreign secretary Boris Johnson’s jingoism sabotage my and many others’ efforts to help. When the vice-chancellor of the University of Gibraltar compounds errors and exacerbates ill feeling the effect is almost unbearable. I hope you’ll allow me to set the record straight and to try to establish a reliable basis for sorting out current and prospective problems.

Dr Tilbury makes two historical howlers. Spain did not “lose” the War of Succession: it was a civil war, aggravated by foreign opportunism. Britain’s intervention was on the losing side. This doesn’t much matter, as far as implications for today’s difficulties are concerned, but it shows that the vice-chancellor is imperfectly informed. We should, in any case, not appeal to 300-year-old events, but start from where we are. Those who do appeal to history, however, ought to get the facts right.

Dr Tilbury repeats, moreover, a tendentious reading of the Treaty of Utrecht, so often repeated that it has become a cherished British myth – as ill fitted to the facts as the infamous left boots of the Crimean War. “Spain”, Dr Tilbury says, “signed the Treaty…handing Britain the sovereignty of Gibraltar in perpetuity”. No one in Britain or Gibraltar seems to have read the treaty since it was signed – and perhaps not even then. The English monarch received only property rights (propietatem habendam fruendamque in the Latin of the document). Although the absolute, perpetual, inappellable and irrevocable nature of those rights was emphasised, Article X also reserved sovereignty (sine jurisdictione territoriali) to Spain.

Britain took advantage of an ambiguity in the text, which can be construed only to exclude surrounding areas. In practice, in any case, Spain has acknowledged Britain’s exercise of sovereignty on the basis of later treaties and exchanges of notes.

Nor does Dr Tilbury help by denouncing “the undemocratic way in which the EU has given the power to Spain to veto any agreement”. The EU has not given Spain any such power. All member states of the Union have the right to block arrangements with third countries (including, alas, Brexit Britain), by virtue of freely negotiated treaties, to which all have assented in accordance with their respective constitutions. No organisation of sovereign states could work on any other basis, which is entirely and necessarily consistent with democracy.

Dr Tilbury can judge better than I her claim that “local people feel betrayed” – but if so, they can hardly do so reasonably on the grounds that the EU “has chosen to play the sovereignty card”. There is no “sovereignty card” to play. All states of the Union are sovereign and cannot be required to forgo their rights. That is the basis alike of Britain’s right to secede and Spain’s to adhere to the EU’s constituent treaties.

Dr Tilbury wrongly formulates a seriously misleading allusion when she says that “Spain holds the ‘colonies’ of Ceuta and Melilla”. Ceuta and Melilla are not colonies – with or without the scare quotes – but part of Spain. Gibraltar is not part of the United Kingdom, but a colony. There may be scope for a legitimate debate about the future of the historic praesidia – I’d welcome such a debate on a separate occasion – but not on the false basis that their problems are analogous to those of Gibraltar.

When Dr Tilbury rightly points out that Gibraltar’s “education, judiciary and political system mirror…the UK”, she perhaps gives the impression that Spaniards want to tamper with Gibraltar’s traditions in those respects. Spain, like Britain, is a “nation composed of nations” with appropriate levels of devolution in all regions. In Catalonia and Navarre, for instance, the constitution guarantees the inviolability of peculiar legal and cultural traditions. No future for Gibraltar should or conceivably would impair the community’s self-government or any part of the precious diversity of the local heritage.  

Spain has, moreover, repeatedly assured Gibraltarians that their right to British citizenship, if they want it, is inviolable. And of course, no settlement of the Gibraltar question can or should prevail without the clear and democratic consent of the inhabitants. By “clear” consent I do not mean the kind of dodgy majority procured in favour of Brexit by denying voting-rights to expatriates, exploiting protest votes and counting every vote to “leave” as an endorsement of a hard Brexit. I mean an informed, convinced and substantial majority.

On one point I agree with Dr Tilbury unreservedly. It would indeed be “tough…if free movement of people and goods were no longer possible”. The EU guarantees such freedom. Only Brexit – no choice of Spain’s – imperils it. I should be delighted if the Brexit negotiations upheld it – for Britain as well as for Gibraltar. But Mrs May has ruled the single market out; if Gibraltarians want to bristle at betrayal, perfide Espagne doesn’t sound or seem like the right target.

Although Dr Tilbury speaks of “tormented Gibraltarians”, they are perhaps the most privileged Europeans, in terms of trade and tax, under the present arrangements. I am happy about that. So are most other Spaniards. I want to see an outcome that preserves as much of Gibraltarians’ current privileges as possible.

In any case, I hope readers are aware that Spain, with what seems to me extraordinary magnanimity, does not propose that Britain forgo sovereignty over Gibraltar – only that she share it. That may not be the only possible way forward (and my efforts in Spain are devoted to trying to get the Spanish government to explore others), but it would have immediate advantages. It would enable Gibraltarians to retain their current relationship with the EU – including market access, free migration and even EU citizenship, along with their fiscal and commercial privileges – irrespective of Brexit.

I wish the people of Gibraltar would look afresh at the benefits shared sovereignty would confer. Unfortunately they seem equally united in two objectives that are in mutual tension: last year, they voted almost unanimously in favour of staying in the EU; in 2002, they voted almost unanimously against shared sovereignty. Finding a solution that accords with their wishes is therefore difficult. But it’s what I’m working for and what I’ve been urging on the Spanish government. I wish Dr Tilbury, and all friends of Spain, Gibraltar and the EU in Britain, would suspend pointless verbal hostilities and start helping.

Felipe Fernández-Armesto is William P. Reynolds professor of history, University of Notre Dame in the US.