With EU’s ‘colony’ footnote, Madrid did not get what it wanted

The EU's reference to Gibraltar as a colony has rightly angered this community, but it should come as no surprise. In a post-Brexit world, Spain will use any opportunity to influence its EU partners and push its agenda on Gibraltar.

We knew that was going to happen, but to see it happening is galling nonetheless.

And yet behind the cacophony of outrage in Gibraltar and the UK, and the smug know-it-all crowing of many in Spain, lies a far more nuanced story.

The footnote looks like a victory for Spain at first blush, and on some levels it is. But Madrid did not get everything it was after, in great part because of a diplomatic wrangle that played out not just in Brussels and Strasbourg, but in the United Nations too.

The footnote is in a proposal for an EU law on post-Brexit visa free travel, legislation that if approved will represent a positive development. It will allow British citizens including those from Gibraltar to travel for short periods in the EU without the need for visas.

The row over the word “colony” has eclipsed that positive development, but an earlier version of the footnote would have represented an even greater blow to Gibraltar had it not been rejected.

That version spoke of "a dispute" between the UK and Spain over Gibraltar. It also sought to include a statement that Gibraltar is on the UN's list of non-self-governing territories and is "subject to decolonisation".

Had it succeeded, the EU would in effect have been recognising Spain’s view that a dispute exists over Gibraltar, and that it can only be resolved by decolonisation on Madrid’s terms.

In the final version of the footnote, the language is watered down in several key aspects, despite the provocative use of the word colony.

Gone is the word "dispute", replaced with a vague reference to "controversy".

Implicit in that change, whether by accident or by design, is the recognition that there is no dispute over Gibraltar, which was ceded by Spain in perpetuity in the Treaty of Utrecht.

That is not a reality that Gibraltar is inventing, but rather a statement of fact, as has been recognised by an international court.

In 2016, after Spain pressed FIFA to block Gibraltar’s membership application, the matter came before the Court of Arbitration for Sport in Switzerland, where a team of highly-respected, experienced international arbitrators concluded that Gibraltar could not be denied its rights at the whim of the Spanish Government.

In its ruling, the CAS panel found that “…under public international law the sovereignty of Gibraltar is clearly British and no actual legal dispute is presently pending.”

Not only that, the panel concluded “…there is no legitimate dispute, as Spain ceded Gibraltar to the United Kingdom in 1713 pursuant to Article X of the Treaty of Utrecht…”

The final text of the EU footnote also removes reference to decolonisation and the UN list of non-self-governing territories, replacing it with the nebulous language of diplomacy.

The footnote now talks of the need for “a solution” to be reached in light of “…the relevant resolutions and decisions of the General Assembly of the United Nations.”

But relevant to who? That phrase leaves room for Spain's interpretation, which hinges on the principle of territorial integrity. But it also allows for Gibraltar and the UK's position, which is centred on the right to self-determination.

The EU spiked the first version of the footnote at the insistence of France, which has its own two territories - French Polynesia and New Caledonia – included on the UN list of non-self-governing territories.

As is clear to anyone who has followed the proceedings of the UN's decolonisation committee over the years, the relationship between the residents of the two French territories and the government in Paris is at times strained to say the least.

The Chronicle understands the French Government was approached in New York by the UK permanent mission to the UN and immediately recognised the danger of the first version of the footnote. France feared setting a precedent that might later create problems with its own territories.

Let us be clear: The current version of the footnote is not good for Gibraltar. It shows that the EU is piling in behind its remaining partner, as we all knew would happen. When it comes to Gibraltar, EU members are hearing only one side of the argument from within their own ranks.

The reference to Gibraltar as a colony is vexing because it illustrates Madrid’s stale view on Gibraltar and the EU's willingness to back it, even when the argument is so clearly flawed and anachronistic.

Gibraltar is on the UN’s list of non-self-governing territories only because of Spain’s insistence that its territorial aspiration over the Rock trumps the right of the Gibraltarians to decide their own future.

“The word colony implies a degree of subjugation and is language that we’ve definitely moved away from,” one British official told me, summing up the UK’s irritation at the development.

Conservative MEP Daniel Dalton said the language was “inflammatory and undiplomatic”, adding that it would further erode trust between the EU and the UK.

“The EU claims to stand up for democracy and self-determination around the world, so why does it so publicly reject those principles when it comes to Gibraltar?” he wrote on Twitter.

But in adopting Spain’s footnote, is the EU really saying that Gibraltar’s modern constitutional relationship with the UK, based as it is on shared interests and partnership, amounts to colonialism? And having dealt with Gibraltar’s elected politicians for years, is the EU really saying that we have no say in how our affairs are run?

The EU will stand by Spain after Brexit, of that there is no doubt. But every time Madrid pushes on the issue of Gibraltar, it risks irritating its European partners who have more serious problems to worry about.

Last week Alexander Winterstein, the European Commission's deputy chief spokesman, was pressed repeatedly by a Sky News journalist to state, categorically, whether it was the EU's position that Gibraltar was a colony.

Again and again, Mr Winterstein ducked the question, looking increasingly uncomfortable and embarrassed as he tried to move on to the next subject.

His awkward silence, alongside a footnote that has zero practical effect other than to assuage Spanish pride, speaks volumes.

MAIN PHOTO: REUTERS/Jon Nazca