History and Legal Aspects of the Dispute
Spain has repeatedly requested the United Kingdom to enter into negotiations, in compliance with the provisions of the United Nations, in order to reach a final solution to the dispute over Gibraltar, the only remaining colony in Europe

I. Basic Aspects of Spain’s Position

Gibraltar is a colony. Since the 1960s, Gibraltar has been included in the United Nations list of “Non-Self-Governing Territories subject to Decolonisation”. This colonial vestige destroys the national unity and territorial integrity of Spain and is incompatible with Resolution 1514 (XV) 1960, on decolonisation. The United Nations has stated that, in the process of decolonisation of Gibraltar, the principle of self-determination is not applicable but rather that of restitution of the Spanish territorial integrity. The issue of Gibraltar must be resolved by means of bilateral negotiations between Spain and the United Kingdom, which the UN has been recommending, uninterruptedly, since 1965.

Regarding the Isthmus:
• In the Treaty of Utrecht, only “the city and the castle of Gibraltar, together with its port, defences and fortresses that belong to it” were ceded. The Isthmus (including the adjacent waters or the overlying airspace) was not ceded by Spain, thus always remaining under Spanish sovereignty.
• The mere continuous occupation by the British does not meet the requirements of international law for the acquisition of sovereignty.
• Therefore, Spain considers the occupation of the Isthmus to be illegal and contrary to international law and, accordingly, has always demanded its return without any condition.

In the Lisbon Declaration of 1980, both governments undertook to resolve the problem of Gibraltar in a spirit of friendship and in accordance with the pertinent United Nations resolutions.

Subsequently, the Lisbon Declaration was developed through the 1984 Brussels Declaration: Spain and the United Kingdom laid the foundations for a new negotiating process aimed at resolving all their differences regarding the Rock, including issues regarding sovereignty. There were also intense negotiations in the 2001-02 term, which did not come to fruition.

Spain continues defending its claims where they belong: in the United Nations, particularly in its General Assembly, and also in the Committee of 24, where processes of decolonisation are discussed, which, in the case of Gibraltar, are managed by the principle of territorial integrity of States.

The Government has called on the United Kingdom to return to bilateral negotiations on questions of sovereignty as soon as possible, which have been interrupted for too many years without having obtained an answer. It has also reiterated its willingness to negotiate a new ad hoc method of regional cooperation with the United Kingdom, which favours practical aspects of such cooperation. This procedure would replace the Trilateral Forum, which Spain no longer considers as valid.

The new scheme would include the participation, in addition to Spain and the United Kingdom, of the Gibraltarian local authorities and also of the Spanish local and regional authorities: the Junta de Andalucía and the Commonwealth of Campo de Gibraltar municipalities would be invited, as well as the European Commission.

We have maintained our responsibilities as a member state of the EU and a party to the Schengen Agreement. With the support and verification of the Commission, we have implemented an ambitious project to improve the monitoring checkpoints on the border fence to benefit the citizens who live on either side of it. At the same time, we have intensified our fight against smuggling and organised crime, in compliance with our duties within the framework of the European Union and the Schengen area.

Spain also watches over the respect of EU tax regulations, denouncing those situations in which we considered that, by virtue of the European Union law, these regulations were in breach regarding the European tax system. Gibraltar is a tax haven for Spain and for other EU Members. Currently, the Commission has undertaken a formal inquiry on state aids regarding the corporate tax system of the Rock. Spain has also condemned the taxation of Gibraltar's online gambling sector before the European Commission.

Behaviour contrary to EU regulations on the environment and contrary to international regulations on fisheries is also monitored.
The Gibraltar status and the dispute over the sovereignty of the waters and the Isthmus have a direct impact on some EU issues (justice and home affairs, environment, aviation, etc.) since Spain does not recognise the occupation of the Isthmus nor the fence as a border. In terms of civil aviation, in order to enforce the application of EU regulations and agreements with regard to third parties, we have laid out constructive proposals to deal with the problem of Gibraltar’s airport, built by the United Kingdom in the Isthmus.


II. Gibraltar and BREXIT

Gibraltar and the European Union

Gibraltar is not an integral part of the United Kingdom. It is a territory under British sovereignty whose foreign relations are conducted by the United Kingdom. Thus, under Article 355.3 of the Treaty on the Functioning of the European Union, concerning the scope of application of the EU Treaties, the provisions of the Treaties apply to Gibraltar insofar as it is a European territory whose external relations are assumed by a Member State (the United Kingdom).
The Court of Justice of the EU also considers Gibraltar as a colony, as it has stated in several judgments (the most recent one, on 13 June 2017).
However, the application of the Treaties is subject to a series of special characteristics set forth in the Act of Accession of Denmark, Ireland and the United Kingdom of 1972, which excludes Gibraltar from:
-The Customs Union
-Common Commercial Policy
-The Common Agricultural Policy and the Common Fisheries Policy
-The compulsory VAT collection. 

Gibraltar is not part of the Schengen Area, like the United Kingdom

BREXIT

Since European Union law only applies to the Rock thanks to the UK's membership in the EU, the UK’s exit from the EU necessarily implies Gibraltar’s exit too. This is stated in point 4 of the guidelines of the European Council of 29 April 2017 on BREXIT, and also in the instructions of the European Commission.

Regarding the relations that Gibraltar will maintain with the European Union, after BREXIT, the provisions of point 24 of the guidelines seem important, as they literally state that “after the United Kingdom leaves the European Union, no agreement between the EU and the United Kingdom may be applied to the territory of Gibraltar without an agreement between Spain and the United Kingdom”. This also applies to the transitional period that may be agreed upon, as stated in the guidelines of 15 December and instructions to the Commission of 29 January 2018.

 

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