Theme: The Cordoba Agreements in September 2006 of the Trilateral Dialogue on Gibraltar –concerning the fence/frontier, pensions, airport and telecommunications–are the solution to a number of obstacles to cross-border cooperation.
Summary: The 2006 Cordoba Agreements mark the end of the state of exception of Gibraltar in its neighbourly relationship with Spain. The trilateral backing for cross-border cooperation with Gibraltar is part of a new Spanish strategy, which structures the various areas of controversy into three steps or levels (Brussels Process, Forum of Dialogue and Joint Commission for local cooperation). This initiative opens other dimensions and imaginative future alternatives for the dispute, although its outcome may depend on the consequences of the new three-way dialogue and Gibraltar Constitution. Hereinafter, solutions to the dispute will necessarily entail agreement between Spain and Britain, but they will also require approval by the population of Gibraltar.
Analysis: It is well known that the controversy between Spain and Britain over the issue of Gibraltar straddles a number of political and legal areas, including ceding of the Rock under the Treaty of Utrecht in 1713, the separate controversy over the isthmus where the airport was built in 1938 and the dispute over territorial waters around Gibraltar. Other significant factors are its position as a dependent territory under British sovereignty, subject to the United Nations decolonisation process, under which framework it has remained for more than 40 years, and the fact that it is a territory which must be decolonised via talks between Spain and Britain. In short, Gibraltar has a special statute in the European Union, since as a European territory represented by the United Kingdom it is outside the customs territory, and also outside the Schengen area for the free movement of persons, and its outer borders.[1]
The dispute over Gibraltar has always undermined Spain’s normal relations with Britain and has shaped and indeed distorted the economic and social reality in Gibraltar and the Campo de Gibraltar, which have traditionally seen how London and Madrid sacrificed the interests of the affected population over questions of principle– as happened when the fence/frontier was closed in 1969–.
Once democracy was restored, a number of initiatives and processes were launched bilaterally by Spain and the United Kingdom; perhaps most notable are the Lisbon Declaration (1980), negotiations in regard to sovereignty beginning with the Brussels Communiquéin 1984, the London Declaration on the Airport (1987), and talks concerning shared sovereignty (2001-02).
There seems to have been a radical turnaround with the launch in 2004 of the Forum of Dialogue on Gibraltar. This trilateral forum was established via a joint communiquéissued by the United Kingdom and Spain in October 2004, and was formally created in December 2004. The main characteristic of the new Forum is precisely the fact that it is a three-sided dialogue forum, with an open agenda, in which Gibraltar has a voice of its own and where decisions on cooperation issues must be agreed by all three participants –except for agreements which must be materially formalised between Spain and the United Kingdom, but where the United Kingdom must also require Gibraltar’s prior consent–.
Although the most striking aspect is the presence of the Gibraltar government, in fact this is the result of a change in strategy, now focusing on firmly backing local and cross-border socio-economic cooperation between Gibraltar and the nearby Campo de Gibraltar area. Accordingly, in October 2004, Britain and Spain also decided to create a lower level of cooperation linked to the Forum, namely the Comisión Mixta de Cooperación y Colaboración entre Gibraltar y la Mancomunidad de Municipios de la Comarca del Campo de Gibraltar (Joint Commission for Cooperation and Collaboration between Gibraltar and the Association of Municipalities of Campo de Gibraltar), which was created in November 2004.[2]
In 2004-06, the Forum of Dialogue has held five formal rounds of talks (Malaga, Faro, Majorca, Kent and London), resulting in a package of agreements approved at the first ministerial-level meeting of the Forum, in Cordoba, on 18 September 2006. After examining these agreements, we shall assess their significance.
The Cordoba Agreements of September 2006: airport, fence/frontier, pensions and telecommunications
The Cordoba Agreements were established in a Communiqué arising from the ministerial meeting and two statements on pensions (Appendix I) and on Gibraltar airport (Appendix II).[3] The package of agreements encompasses a number of issues which, in general, were hampering a normal cross-border relationship and which needed to be dealt with. The most striking of the agreements is certainly the one concerning the airport, but the other undertakings are also highly significant to normalising relations; in fact, some problems were perceived as deliberate restrictions imposed by the central governments, and were in fact caused directly or indirectly by the dispute over sovereignty (border flows, use of the airport and of the telephone communications system, for example). The unwritten working principle of the Forum was to find practical solutions which did not undermine the respective positions on the underlying issue of sovereignty.
- Pensions. Closure of the fence in 1969 led to many Spanish workers ceasing to contribute to the Gibraltar Social Insurance Fund. Spain’s entry into the European Community led Britain to guarantee the pensions of these workers, although at 1988 levels. To redress this imbalance, the agreement entails Britain offering pensioners an average amount of €6,200 in the next two years, and creating a British pension fund to cover revaluations; those not accepting this offer will continue in the Gibraltar Fund.
- Airport. This is an ambitious agreement for the effective civilian use of this militaryairport facility under terms that are acceptable to all three parties, based on the model of the Geneva-CointrinAirport. The pivotal axis of this agreement is to build a terminal which enables it to be used as aSchengenairport. This means building an extension of theterminalto the frontier/fence, so that passengers to and fromSchengencountries do not need to becontrolled,and those coming into or out ofGibraltaror outsideSchengenterritory pass through passportcontrolon the Spanish side of theterminal, north of the frontier/fence. The idea is simply to locate British airport control plus a new Spanish border control, straddling the frontier/fence, and to allow a transit zone in the new terminal. A joint-owned Spanish and Gibraltar company will operate theterminal.There are plans to build a tunnel under the runway, on the eastern side, to iron out all the safety issues arising from the current pedestrian crossing which traverses the runway.
This statement replaces the 1987 agreement, which was never implemented, and this has significant implications in respect of the formula contained in many EU regulations; the agreement means lifting the suspension of all EU aviation measures at the airport, and the Spanish restrictions on the use of Spanish airspace. Furthermore, Spain undertakes to not request suspension of EU measures on aviation in the future. Also, in view of the use and environmental impact of using the airport on a densely populated area, there are plans to create a Permanent Joint Liaison Committee, as a technical forum which must be notified of any suspension or restriction as a result of military uses. The importance of this statement lies in its final clause, which establishes that the commitments will be fully implemented unless all three parties agree otherwise. - Frontier/fence. The fence built unilaterally by the United Kingdom in 1908-09 has never been accepted as a border by Spain, since it understands that if such a border did exist it would be constituted by the walls of the city at the foot of the Rock. The fence –which for Britain is an international border– sees more than seven million crossings per year for reasons of employment or leisure, and the crossing is naturally conditioned by the application of customs controls and outer EU border controls on goods, vehicles and persons, in view of Gibraltar’s exclusion from the Schengen area and from the European customs space. The commitment is to achieve more fluid border flows based on a dual system of red and green channels.
- Telecommunications. The Communiqué encompasses various different issues: Authorisation of roaming agreements between networks in Spain and Gibraltar for mobile telephony, direct dialling to Gibraltar (350) instead of having to use the provincial code for Cadiz (956 plus 7), and more telephone numbers accessible from the Spanish network (30,000).
- Instituto Cervantes. A branch of the Instituto Cervantes will be opened to disseminate the language and culture of Spain and the Gibraltar government will provide it with adequate premises.
The agreements also refer to the Mixed Commission, which is encouraged to continue working to develop local cooperation, with the involvement of the Junta de Andalucía (Andalusian regional government) in matters which fall under its competency; cooperation is also encouraged between the ‘Bay’ port authorities (it is not coincidental that any reference to the Bay of either Algeciras or Gibraltar is avoided); in short, the commitment is reiterated to continuing the process within the framework of the Forum and its open agenda in regard to any issue relating to or affecting Gibraltar.
Assessment and future prospects
The various agreements respond to various different reasons. Specifically, the airport agreement will enable civilian flights at an airport which, let us not forget, is military, and is also limited by its densely-populated urban surroundings. The agreement will not therefore change the status quo –which is why it satisfies and earns the support of the UK Defence Ministry– since Spain was not seeking to improve its position on sovereignty, but the effective use of the airport. The detailed provisions are in response to the desire of Gibraltar to avoid at all costs the presence of Spanish agents performing official controls on the isthmus. For its part, the agreement on pensions and the opening of an Instituto Cervantes are particularly symbolic in terms of normalising relations. In fact, Spain appears to have abandoned the low-intensity restrictions which it has been applying in order to achieve this fast-track normalisation (freeing telecommunications in four months; civilian flights in the short term; building the new tunnel and terminal in a maximum of two years with a provisional system to transfer passengers by bus; and a commitment to opening the Instituto Cervantes soon).
As a whole, the agreements prove that normalisation of cross-border relations with Gibraltar has begun, albeit in its very own particular format and legal status. At all events, agreement on cross-border cooperation at state, regional and local level has been unblocked by the new institutional structure: namely the Forum of Dialogue. In itself, this is a hugely significant step forward in regard to issues which looked like being deadlocked forever and which were continually triggering all kinds of friction. Other matters are being put forward for possible inclusion on the open agenda of the Forum of Dialogue, some of which, such as environmental issues relating to Algeciras Bay, require urgent attention and coordination. After all, we should not forget that the issue of repairs to nuclear submarines –which is a highly sensitive one in the region following the long and hapless episode of HMS Tireless– has been submitted to the framework of the Forum, and Spain has obtained written guarantees from the British government in this regard.[4]
Surprisingly, the removal of deadlock concerning more ‘trivial’ issues in regard to Gibraltar has led to the prior clarification of legal positions and preliminary terminology: such is the case with the concept of frontier/fence and recognition, for the first time, by the British and Gibraltar governments, that there is a dispute ‘over sovereignty and jurisdiction over the territory in which the airport is situated’ (Statement on the airport, point 1).
As for the instruments chosen for normalisation, it is not surprising that the constitution of the Forum and the Cordoba Agreements themselves are not formally international treaties but add to the long list of non-regulatory ‘gentlemen’s agreements’ or instruments and documents of soft law with which the UK and Spain have been trying for decades, with joint communiqués and statements, to establish global or practical solutions for Gibraltar.
What I see as truly significant in this case is that Spain, with its new strategy in the Forum of Dialogue, has managed to structure the current and future dealings over Gibraltar into three levels. The higher level is constituted by the Brussels Process for bilateral negotiations on issues of sovereignty and the ‘two flags, three voices’ formula; the intermediate level is represented by this Trilateral Forum of Dialogue on Gibraltar for cross-border cooperation, involving all three governments although (we should not forget) created bilaterally; and the last level consists in sub-State level cooperation (Gibraltar-Association of Municipalities), and is likely to involve the Andalusian regional government in the future.
Of course, normalisation presupposes recognition of a reality: it is necessary to obtain the approval of Gibraltar in order to enact agreements between Spain and the UK, as evidenced by the first agreement on the airport, which was blocked by Gibraltar some twenty years ago, or the bilateral fishing accords of 1998, also ignored.
Secondly, and this is the crux of the matter, normalisation implies talking to the government of Gibraltar and involving it in all dialogue, negotiation and decision-making. This political and legal recognition of the existence of the government of Gibraltar is certainly a novel step for the Spanish government. However, its consequences are relative within the framework of the three levels, since the Gibraltar government is not fully and equally recognised at the same level as a State –but is rather equivalent to a regional or sub-state government in the European context–.
In fact, while at the lower level of local cooperation Gibraltar’s involvement is on an equal footing, at the intermediate level in the Forum of Dialogue on Gibraltar it has its own separate voice, but certain issues can only be agreed formally by Spain and the United Kingdom. And at the higher level of the Brussels Process there are only two parties involved: Spain and the United Kingdom; Gibraltar has its own voice, but no vote. Accordingly, the negotiation and signing of communiqués and agreements with Gibraltar by a Spanish minister is certainly very striking if one looks back at the history of the dispute, but it is less so when we consider that these are only non-regulatory agreements, which do not generate legal obligations or responsibilities under international law, and when we examine international and European practice in regard to the foreign activity of sub-State institutions, for example the increasingly common practice in Spain of regional autonomies signing informal, non-treaty agreements with foreign States without this implying international subjectivity of any of Spain’s regions.
Furthermore, Spain’s position is not undermined, since the commitments expressly state that the agreements and understandings and their implementation do not have any repercussions on sovereignty, jurisdiction or control or on the parties’ respective positions. Indeed, Gibraltar ‘accepts and understands that references to sovereignty in this Communiqué are bilateral to the UK and Spain’ (Communiqué, point 3).
Yet there can be little doubt that the goal of Gibraltar is to achieve full recognition and exercise self-determination; in this regard, parallel to the new institutional structure of the Forum, Gibraltar and Britain have negotiated a new Constitution, which will replace the 1969 charter and which includes recognition of this right on the part of the United Kingdom to the ‘people’ of Gibraltar. In particular, Spain has managed to persuade the United Kingdom to recognise in the Draft Despatch accompanying the Constitution that this right is constrained by Article X of the Treaty of Utrecht and that therefore independence may only be an option with Spain’s consent.[5] This explicit constitutional recognition of the limits imposed by Utrecht to the right of independence is added to the limits already set by the United Nations, and should perhaps be seen as a legal reflection of something of a droit de regard for Spain concerning the institutional development of the British colony.
Under the Agreements, all parties stand to gain: Britain and Spain uphold their positions on underlying issues of sovereignty; Britain’s military and strategic interests are not jeopardised and permanent tension with Spain is eased; Gibraltar and the Campo de Gibraltar region attain many of their goals regarding normalisation of everyday life. Spain normalises the channel for cross-border cooperation and designs a future framework for its historic claim.
However, since the controversy revolves largely around politics and symbolism, the agreements and the Forum of Dialogue itself could be threatened by unforeseen circumstances or future developments in the situation; these circumstances also point to Gibraltar’s specificity as a tiny human and political community engulfed in local issues and at the same time in a historical dispute between two major European powers. In Gibraltar, there is already controversy over future plans to fly the Spanish flag at the Instituto Cervantes –and it will likely not be insignificant for Spain that the premises offered by the Gibraltar government for this institute be located inside or outside the city walls–. A change in the Gibraltar government could dynamite the agreements, since the leader of the opposition, Joe Bossano, has announced that if he takes office he will not implement the agreements in their totality. A future demand for parity of Gibraltar in the Brussels Process, or direct suppression thereof, could undermine the good health of the Forum and the latter could be indirectly affected by a possible weakening in international forums and in particular at the United Nations of Spain’s position in the wake of legal recognition by Britain that the ‘people’ of Gibraltar are entitled to independence in their Constitution, backed overwhelmingly in a future referendum.
For its part, the main problem for Spain is recognition of interlocution with Gibraltar, which is the thorniest issue for the Forum and agreements, although it is probably not so much a political problem as a symbolic one. And in this regard perhaps Spain should seek to reactivate the highest level of the Brussels Process, which is bilateral, if it wishes to keep talks over Gibraltar on a politically sustainable course.
Conclusions: Not only has the Chief Minister of Gibraltar, Peter Caruana, sought and achieved a normalised framework for relations with Spain and a political option of some considerable scope for Gibraltar. Spain, with its new strategy of encouraging local cooperation to lay the foundations for the final objective of recovering sovereignty, has dealt itself a hand which will have long-term implications. Normalising relations with the British colony has in fact led to its recognition and direct involvement. And this involvement means that Gibraltar will be present during the quest for solutions of every kind, and it means that it will be actively involved in the practical enactment of the agreements. In the future, we will be in a better position to fully gauge the degree of this participation, but it now seems that politically there is no going back on some kind of involvement and agreement on the part of Gibraltarians before, during and after any decision-making by the Spanish and British governments concerning Gibraltar.
All things considered, if Spain is not going to consent to a jurisdictional solution, if legal arguments and positions do not make any headway in respect of the situation in the 1960s, and bilateral political solutions fail to prosper in practice, in line with the pattern of the last 20 years, then Spain will have another door open to it: local and practical cross-border cooperation, which was the only avenue that had not hitherto been fully explored. And Spain does not lose its legitimate rights by taking the initiative in a historical problem, recognising the reality of something which already exists: Gibraltar as a sub-State entity which must be taken into account in the quest by Spain and Britain for solutions to the dispute.
Alejandro del Valle Gálvez
Chair in International Law at the Universidad de Cádiz
[1] Reports and documents on Gibraltar may be accessed on the website of the Spanish Ministry for Foreign Affairs and Cooperation (MAEC): http://www.mae.es/es/MenuPpal/Actualidad/Publicaciones+de+la+D.G.C.E/Publicaciones+no+periodicas/cuestion_gibraltar.htm, in Spanish.
[2] Its articles of incorporation can be accessed at http://www.canalsur.es/Informativos/Documentacion/Especiales/gibraltar/actconstcomision.pdf, in Spanish.
[3] The Communiqués and Statements are available forconsultation at http://www.mae.es/es/MenuPpal/Actualidad/Noticias+Maec/20060918_not1.htm in Spanishor at http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007029391638&a=KArticle&aid=1158049073887 in English.
[4] Communiqué17-2006, dated 9/III/2006, is available for consultation at theMAEC website: http://edit.mae.es/es/menuppal/actualidad/comunicados+dg+com+exterior/gibrlatar.htm, in Spanish.
[5] The new Draft Constitution for Gibraltar is available for consultation at: http://www.gibraltar.gov.gi/constitution/new_constitution/index.html
