Quo Vadis Brexit Gibraltar?
I am not a historian, a lawyer or a politician, although I am, indeed, a group person and a political animal. As a de facto British-Spanish and European citizen (I lived in Spain for my first 26 years and London has been my permanent home for the last 37), I have kept an eye on the political statements and negotiations about the possible future of Gibraltar, as a result of Brexit. As a group analyst, I tend to pay free-floating attention to possible psychological motives and large group dynamics, regarding developments of this nature. Here are some of my thoughts.
What is this problem about?
In the collective unconscious of both British and Spanish society, Gibraltar is still a significantly emotional issue, particularly for the more conservative elements in these two countries. For Spain, it is an irritating stone in its imaginary shoe, as well as a painful symbol of its decline and demise as the first global empire. For the UK, it is a symbol of power, which nowadays sustains an illusion of permanence of the British Empire that in the 18th century displaced Spain from global supremacy.
The idiom “you are my Rock of Gibraltar” is still a widely-used metaphor, particularly in England, denoting the protection, support and confidence you get from someone who is perceived as a secure base – a key concept in John Bowlby (1969)’s attachment theory. When he died, in 1990, his widow Ursula Bowlby wrote a telling obituary: “John was my Rock of Gibraltar!”
Undoubtedly, the British developed a strong attachment to the Rock, whilst the Spanish kept a desire to recover this small but meaningful part of their national and territorial identity.
If the Germans had conquered a tiny territory in Cornwall, wouldn´t the UK be making an irredentist claim on it? Or if the Russians had captured a tiny portion of Florida, wouldn´t the USA be trying to get it back by all means? In fact, the Chinese successfully recaptured Hong Kong not long ago, against the wishes of the British people and the wishes of the inhabitants of this ex-British colony; but that is a different story.
The root of the sovereignty dispute between Spain and the United Kingdom derives from the 1713 Treaty of Utrecht, which was signed after an Anglo-Dutch army occupied Spanish Gibraltar and Menorca. Article 10 of the Treaty literally says:
“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.
But that abuses and frauds may be avoided by importing any kind of goods, the Catholic King wills, and takes it to be understood, that the above-named propriety be yielded to Great Britain without any territorial jurisdiction and without any open communication by land with the country round about …
And in case it shall hereafter seem meet to the Crown of Great Britain to grant, sell or by any means to alienate therefrom the propriety of the said town of Gibraltar, it is hereby agreed and concluded that the preference of having the same shall always be given to the Crown of Spain before any others” (Encyclopaedia Britannica, 2021).
How could we interpret this treaty in the 21st century? I do not know. But what I know is that Brexit has changed some of the political landscape. Perhaps we may also say that in sports, and in politics, nothing is impossible.
During the Brexit negotiations, the British prime ministers Theresa May and Boris Johnson declared in different ways that it would be impossible for any British PM to allow a border between Great Britain and Northern Ireland. In fact, in August 2020, Johnson literally proclaimed: “There will be no border down the Irish Sea – over my dead body” (McHugh, Young and Black, 2020).
Johnson was reluctant to honour the Brexit Withdrawal Agreement signed by the United Kingdom (UK) and the European Union (EU). Unilaterally, he attempted to create an internal UK-market law, disregarding the agreement and in breach of international law.
However, in order to sign a UK-EU trade deal in December 2020, the British PM had to retreat. This means that most commercial goods entering Northern Ireland from Great Britain now require a customs declaration and control, with a grace period for some products.
The deal is proving to be tricky and the UK has recently extended such a grace period without consulting with the EU. Subsequently, and for the second time in six months, the EU has sent a formal notice of legal action with the following statement:
“The UK must stop acting unilaterally and stop violating the rules it has signed up to” (in O’Carroll, 2021).
The current friction over trade is likely to be extended for many years to come.
On paper, and in order to avoid a hard border with the Republic of Ireland and preserve the Good Friday Agreement, the UK has to transfer to the EU some of its sovereignty over Northern Ireland; which will remain within the EU´s custom union and single market rules until the arrangement is reviewed in four years’ time.
A rocky journey
Friction has also been the norm around Gibraltar during most of the last three centuries. Since the time It was captured in 1713 and all the way to 1830, the Rock was described in the official language of the British Empire as “The Town and Garrison of Gibraltar in the Kingdom of Spain”. In the 18th century, at times, Great Britain contemplated giving Gibraltar back in exchange for some of the Spanish overseas territories in America, but it did not materialise.
In 1779, Spain declared war on Great Britain; Spanish forces attacked British positions in North America, in support of American Independence, and started the sieges of Gibraltar and Menorca. The Spaniards also provided money, supplies and munitions to the American forces. Spain’s military involvement was successful, reducing the British threat to the Spanish colonies, in and around the Caribbean, and making an important contribution to the Independence of the USA.
Spain also seized Menorca back from the British in 1782; but failed to recover Gibraltar, giving up the siege in 1783. The heroic and successful defence of Gibraltar became a landmark, which penetrated into the social unconscious of Great Britain through generations and contributed to its strong attachment to the Rock.
In 1807 Napoleon invaded Spain, which had to fight until 1814 to push the French armies out of its territory. During the so-called Peninsular War period, the majority of the Spanish-American colonies started their own wars of independence…
By 1830 Spain had lost most of its American colonies. That very year the then United Kingdom of Great Britain and Ireland, unilaterally decided to change the status of the Rock and described it as “The Crown Colony of Gibraltar” (why not?).
Spain was so weakened by then that it could do little more than protest; its attempts to get the Rock back were futile, whilst the country gradually became trapped in a vicious circle of political and military incompetence, socioeconomic impoverishment, internal conflicts and civil wars – ending in the infamous dictatorship of General Franco from 1939 to 1975, as a tragic expression of unresolved national trauma.
Two positions on the Rock
Spain does not recognise British sovereignty over the isthmus of Gibraltar, since the only part that was ceded was “the town and castle of Gibraltar, together with the port, fortifications and forts”, and the rest had no territorial jurisdiction, as stipulated in the Utrecht Treaty.
Therefore, until now, Spain has persistently claimed to be the owner of the isthmus part of Gibraltar and has considered that British occupation is illegal and against international law.
Interestingly, in 1815, Spain gave the UK permission to build barracks on the isthmus to assist the British in dealing with a yellow fever epidemic. Spain agreed to this for the duration of the epidemic, after which the barracks should have been demolished and the British ought to have returned to the town of Gibraltar.
However, the UK (with the persuasive presence of its mighty Navy) unliterally decided to keep the isthmus until the present day. The airport was built, unilaterally also, by the British on a section of the isthmus in 1938, whilst Spain was fighting its civil war – plus ça change!
Spain has since claimed, at least, the joint use of the airport; but the UK has argued it is the owner of the isthmus on a de facto basis, as a result of continuous occupation over a long period. That is a Catch-22!
Quite a few times, it has been suggested that Winston Churchill might have offered to Franco the possibility of returning the Rock back to Spain, in exchange for its neutrality during the Second World War…
I am aware that, in 1941, Churchill had a copious lunch at the Spanish Embassy in London, where there was plenty of Rioja wine. (I am conversant with this because Rioja is also the region where I was born). I understand that at one point Churchill may have discussed something about Gibraltar but, it would appear, that he could not later remember exactly what he had actually said over lunch.
The UK was very keen on keeping Spain out of the war, as Hitler was courting Franco and threatening to occupy the Rock. After the war, Churchill did not want to isolate Spain too much since communist Russia was perceived as the new threat. He may (or may not) have attempted to bribe Franco with vague enticements regarding Gibraltar.
In any case, the Francoist regime subsequently tried hard to get the Rock back to no avail, although Spain has received the support of the United Nations (UN) on this matter, as part of decolonisation programmes, from the mid-1960s onward.
The wishes or the interests of the Gibraltarians?
Indeed, in 1967 and in 2002 the Gibraltarians voted massively to remain a British overseas territory.
However, the UN did not endorse the results and included Gibraltar in its list of “Non-Self-Governing Territories subject to Decolonisation”. Some UN resolutions in fact indicated that, in the process of decolonisation of Gibraltar, the principle of self-determination is not applicable but rather that of the restitution of Spanish territorial integrity.
Since 1965 to the present, the UN has repeatedly recommended that the issue of Gibraltar must be resolved by means of bilateral negotiations between Spain and the United Kingdom. But the latter has been largely uninterested, why should they be?
In Spain, Gibraltarians are seen as settlers from the UK and other countries and only their interests, not their wishes (as acquiring a right to self-determination), need be safeguarded. The point of view that they were settlers is supported by the fact that, following the capture of Gibraltar, only around 70 people out of the original 5,000 Spanish inhabitants chose to remain on the Rock.
The British Government has also ruled out independence for Gibraltar because the Treaty of Utrecht gives Spain the right of refusal, should Great Britain ever renounce sovereignty. Thus, independence could only be an option with Spanish consent.
In the late 1960s and early 1970s, through lobbying by the Integration with Britain Party (IBP), Gibraltarians expressed their wish for integration with the UK. However, this option was rejected by the British Government in the June 1976 Hattersley Memorandum. This effectively disbanded the IBP which had been in office briefly from 1969 to 1972.
On its entry to the European Economic Community (EEC) in 1973, the UK successfully managed to negotiate a special status for Gibraltar as a UK-European overseas territory, which benefitted from EEC membership but was kept outside Common Commercial, Agricultural and Fisheries Policies, and the Customs Union, as well as outside the scope of VAT and other tax regulations.
These privileges enabled Gibraltar to become one of the most affluent communities in the world. Within three decades, the Rock was ranked as the second most prosperous territory within the EU, only after Luxembourg.
Furthermore, Gibraltar was the first European financial centre to introduce the tax-exempt company as an offshore holding vehicle, and its unique status within the EU made it the jurisdiction of choice for certain types of investors or traders. Only one shareholder and one director are required to register a company in Gibraltar. Not surprisingly, there are over 60,000 companies registered in the territory; that is, more than three per working adult!
Today, Gibraltar has the fifth most banks per capita and the second highest rate of big accounting offices in the world (after the British Virgin Islands). Spain is concerned that a large proportion of the “Gibraltarian” companies carry out their activity on Spanish soil. Incidentally, El Campo de Gibraltar (the area immediately bordering Gibraltar) has one of the highest unemployment rates in Spain, approaching 30% – in ridiculous contrast with unemployment in the colony, which is a negligible 1% (HM Government of Gibraltar, 2020).
There are some 10,000 people from Spain who cross the border daily to work in Gibraltar. Spain is endeavouring to secure the rights and pensions of these workers after Brexit.
A large chunk of Gibraltar’s budget comes from the importation of about 72 million packs of tobacco per year; which, for an adult population of 19,000, is hugely disproportionate. Indeed, the illegal smuggling of tobacco along Spanish beaches has increased dramatically in the last 30 years. During the same period, and on the very same beaches, many thousands of corpses of immigrants have been found with their eyes wide open, having perished in their desperate journey for survival.
The current Spanish socialist-led government is also concerned about the lax tax regime associated with the massive online-gambling industry in the colony, as well as the occasional presence of the Trident nuclear-deterrent submarine, and the polluting spill that Gibraltar sometimes sends into the Mediterranean – which may harm the local environment.
An innovative agreement
After the 2016 Brexit referendum, the right-wing Spanish Government made some noises to the effect that it intended to put an emphasis on getting the sovereignty of the Rock back. However, the socialist-led Spanish Government which took office in 2018 gave priority (without renouncing the sovereignty claim) to the needs of local people, on both sides of the fence, for whom the EU’s freedom of movement is deemed crucial.
On 31 December 2020, Spain and the UK reached an agreement that Gibraltar would join Schengen, the European area made up of 26 countries, where citizens enjoy and benefit from freedom of movement. This implies that customs and passport controls will no longer be at the gate between Spain and Gibraltar, but at the colony´s port and airport.
This is meant to be the first time, since 1713, that there will be no border control between Spain and the Rock, either way.
The agreement, in fact, says that those who enter Gibraltar from Spain or Spain from Gibraltar will not need a passport or any other form of check-in control. However, in order to prevent a back door to Schengen, British people travelling from the UK to Gibraltar will need to go through the unprecedented exercise of customs and passport controls to enter their own colony! This was a tricky point which (together with the discussions about the possible role of Spanish police in the new circumstances) delayed the agreement until the last minute (Kassam, 2020).
It was finally agreed that controls at the Gibraltarian port and airport will be carried out by the European border agency (Frontex), but Spain will be responsible for ensuring that Schengen rules are complied with in the Rock. This means that Frontex agents will have to report to the Spanish authorities, who will have the last word when it comes to allowing a person entry (including British citizens) or granting them a short-term visa (90 days), according to the information available in the Schengen database.
Schengen is a set of rules, procedures and tools, including its database, to which only EU countries have access. Gibraltar and the United Kingdom do not. This means that, according to the agreement, the final decision on who enters the Schengen area belongs to Spain, as delegated by the EU.
The agreed text was sent by the Spanish Government to Brussels and, by the end of June 2021, should be translated into a treaty between the UK and the EU, since the Schengen competence ultimately corresponds to the European Commission.
This unprecedented and historic agreement would not have been possible if Spain had not previously achieved the right of veto over Gibraltar’s future relationship with the EU. Like in Northern Ireland, the agreement is going to have a four-year implementation period followed by a review.
In 2017, the European Court of Justice ruled in favour of Spain´s claims to treat Gibraltar as a colony, against the wishes of the Gibraltarians. But Spain honoured its commitment to protect the interests of the Gibraltarians, as well as the interests of Spanish citizens. The European Commission and the other 26 EU member states supported Spain unanimously; the UK had to reluctantly accept a bilateral negotiation between the two countries, separate from the UK-EU trade deal.
In 1973, the then EEC had supported the UK in getting special status for Gibraltar and in having a right of veto about Spanish entry into the EEC, to safeguard the wishes of the Gibraltarians. Should the UK decide to re-apply at a future point for EU membership, the EU will indeed support Spain´s right of veto, although the world might be a different place by then.
In the 2016 Brexit referendum, 96% of Gibraltar voters were in favour of remaining in the EU; but this was incompatible with British departure. Interestingly, as happened in Northern Ireland, Gibraltar was left with no option but to fall into the process of a pragmatic acceptance of the norms and rules of the EU. Inadvertently, Gibraltar has also accepted the impossible: the UK´s decision to relinquish some of its sovereignty to accommodate the interests of, both, Gibraltar and Spain!
A pre-agreement had been formally concluded in 2019, making it the first international treaty signed by Spain and the United Kingdom on Gibraltar since the Treaty of Utrecht of 1713!
This resolves the fiscal sovereignty of the area and ends an anachronistic and tremendously damaging situation for Spain, without weakening its position on the overall sovereignty claim to the Rock. The new treaty also establishes an increase in administrative cooperation and reinforces cooperation through a liaison body and a joint coordination committee.
This fiscal agreement entered into force in March 2021; it only excludes, with some conditions, those companies incorporated in Gibraltar before November 2018. Spain will remove Gibraltar from its list of tax havens. And the Gibraltarian authorities will provide Spain with the list of Spanish workers in Gibraltar, and that of ships, aircraft and motor vehicles owned by Spaniards, as well as that of owners and beneficiaries of companies or estates registered in the colony.
Tax information will be exchanged on a semestral basis, but in the next four months Gibraltar will have to provide all the information from January 2014 to the present day. According to the Majorcan Daily Bulletin (2021): “The glory days are over in Gibraltar”.
It is too early to know whether this may result in a marriage of convenience or in something deeper. But it is not too early to hope that the new British-Spanish agreement on Gibraltar can be an inflection point.
Concluding thoughts
Completing the process of decolonisation and cancellation of the 1713 Treaty of Utrecht has proved to be highly complex, frustrating and long-winded. A strictly legal solution to the Gibraltar issue is most unlikely to ever happen. Perhaps for that reason neither Spain nor the UK have taken the matter to the International Court of Justice.
In my view, a true and enduring settlement would necessarily have to rely on dialogue, good will, mature politics, constructive negotiations and, of course, on compromise.
In the long run, I quite fancy the idea of a condominium, through which sovereignty over Gibraltar could be shared by the UK, Spain, the EU and the Gibraltarians. We really need a creative and inclusive resolution.
I would like to believe that the story of the EU, which is in the making, will not just be a story about the clash of ideologies, money, expediency and national rivalries, but a story about people and about what freedom of movement means for them. I support the European project: a commitment to building increasingly more sophisticated levels of group collaboration and of group attachment – and, above all, a union of citizens.
But I might be a dreamer. Is anybody else?
Acknowledgement: Danny Allen
Conflict of interest: The author has received no money for this article, and declares no other conflict of interest apart from critically supporting the European project.
References
Bowlby J (1969) Attachment and Loss: Vol. 1. Attachment (1991 edition). London: Penguin Books.
Encyclopaedia Britannica (2021) Treaties of Utrecht. Available at Treaties of Utrecht | European history | Britannica
HM Government of Gibraltar (2020) Gibraltar – Key indicators. Available at Key indicators (gibraltar.gov.gi)
Kassam A (2020) ‘Clock still ticking for settlement over Gibraltar despite Brexit deal. The Guardian (27 December). Available at ‘Clock still ticking’ for settlement over Gibraltar despite Brexit deal | Gibraltar | The Guardian
Majorcan Daily Bulletin (2021) The glory days are over in Gibraltar. Majorcan Daily Bulletin (14 March). Available at Spain-Gibraltar: Gibraltar Treaty (majorcadailybulletin.com)
McHugh M, Young D and Black R (2020) Irish Sea trade border ‘over my dead body’. Belfast Telegraph (13 August). Available at Irish Sea trade border ‘over my dead body’, says Johnson – BelfastTelegraph.co.uk
O’Carroll L (2021) Biden urges UK and EU to preserve Northern Irish peace amid Brexit row. The Guardian (16 March). Available at Biden urges UK and EU to preserve Northern Irish peace amid Brexit row | Brexit | The Guardian
Arturo Ezquerro
Spanish-born, British consultant psychiatrist, psychoanalytic psychotherapist and group analyst, based in London since 1984. He is a senior assessor and trainer at the Institute of Group Analysis, and former Head of NHS Medical Psychotherapy Services in Brent. He is an honorary member of the World Association of International Studies and of the International Attachment Network, for promoting an attachment-based ethos in the understanding of human development, group relations and clinical work. He was supervised by John Bowlby at the Tavistock Clinic during the last six years of his life (1984-1990), collaborates regularly with the media, and has over 80 publications in five languages, including Relatos de Apego (Psimática) and Encounters with John Bowlby: Tales of Attachment (Routledge).
arturo.ezquerro@ntlworld.com