Saturday, 10 April 2010

Sovereignty Casino

For all the intelligence that The Hon Peter Caruana QC is attributed with, why is he gambling with Gibraltar's sovereignty?  Is it really a good idea to seek that the European Court adjudicates on this issue?  It is this issue that Mr Caruana is asking it to adjudicate on in the case that, as Chief Minister of Gibraltar, he brings before the European Court on the issue of territorial waters.

It seems that whilst the UK Government seeks to defend its (and Gibraltar's) position on the basis of control, Mr Caruana considers it wise for the European Court (made up of judge's from different member states) to decide the issue as one of sovereignty.  The UK government seems to have studiously and consciously avoided the need for the European Court to adjudicate on British sovereignty.

Apart from  the the legal difficulty that this situation poses for Mr Caruana, in that sovereignty lies with Britain and not with Gibraltar with the UK not taking the point, what will the consequences be to  Gibraltar, and the UK, if the European Court were to decide that, on a strict interpretation of the Treaty of Utrecht, Britain has no sovereign territorial waters around Gibraltar but simply rights of ingress and egress from the port?  This would be the biggest and most serious set back to the case on British sovereignty over Gibraltar ever, with one unavoidable and irreversible result, that once decided the decision will be set in stone, at least, insofar as concerns the EEC.

Mr Caruana, is  it really the UK's arguments that are fraught with danger, or are they those that you have adopted on behalf of Gibraltar?  Perhaps a deep breath and a reassessment of your position is called for. It is not so much that the UK should be right and can succeed in its arguments, as you have said, it is more that you should be right and succeed in your arguments.  If you lose that gamble and the ball falls on the wrong colour it is Gibraltar that will face the serious consequences for ever.

16 comments:

  1. Does the Chief Minister not fear an angry backlash from the Gibraltarians?

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  2. Backlash ... only if he loses the case on sovereignty surely?

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  3. But there is no case on sovereignty?

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  4. Is there not? Is sovereignty not the issue on territorial waters that the Chief Minister is about to litigate, certainly that is what all the press has reported.

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  5. Has the FCO not neutralised him now?

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  6. By employing different arguments in EU?

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  7. That seems to be what is happening ...

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  8. Has the Chief Minister really lost the plot?

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  9. Fred says:

    Re Mr Caruana

    "Like any dealer he was watching for the card That is so high and wild
    He'll never need to deal another". (Llanitoworld, I'm sure you know the lyrics).

    But, in his arrogance, he gambles with our intrests.

    What is Mr Llamas and his European and International Department advising?

    One would think that Mr Caruana actually wants our British sovereignty challenged.

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  10. Plato says:

    Fred, nice lyrics. Quite apt to what is going on.
    On another musical note, the conductors (UK,Spain AND Mr Caruana) are orquestrating this one in a masterly fashion! The grand finale is NOT going to be nice.

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  11. Presumably, if our waters sovereignty case is so compelling, we should have no qualms about taking the waters issue to the European (or any other) courts.

    If we do not have the courage of our convictions, and are ourselves not certain of the validity of our case (on land and sea), then where does that leave our rights and aspirations?

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  12. Your use of the owrd "presumably" says it all!

    The point is not whether we have or do not have doubts... undoubtedly we do not. It is whether we should seek to argue these before the European Court. Any court hears several (or at least two) arguments and then decides. It then decides on legal issues (based on international law, which is not black and white) ignoring all political and other considerations.

    It is this risk that should be avoided.

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  13. Fred syas:

    Llanitoworld, politics is at the heart of European and International courts. It could be in the use of covert diplomacy leading up to a decision, or other types of influence - overt, covert or discrete. Courts struggle against Realpolitick.

    Definately one to be avoided. Big boys games, big boys rules. And, whether we like it or not, Gibraltar is small fry.

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  14. Gibraltar was finally captured by Castile on 15 December 1462 when it fell to an army led by the Duke of Medina Sidonia, who expelled the Moors from the territory.

    King Henry IV of Castile, the father of the later Queen Isabella of Castile, rewarded the duke with the title of Marquess of Gibraltar and added the kingship of Gibraltar to the list of titles of the Castilian crown.

    The title continued to be used by his successors even after the territory was ceded to the Crown of Great Britain in perpetuity under the terms of the Treaty of Utrecht of 1713.

    The continued use of the title thus emphasizes a Spanish viewpoint that the British monarch merely has possession of Gibraltar, rather than sovereignty over it.

    As the rest of the historic substantive titles pertaining to the Spanish monarchy, this title is not officially designated in the 1978 constitution, but the constitution notes that the title of the King is King of Spain and further grants the right to use "the others pertaining to the Crown" (los demás que correspondan a la Corona).

    This title was among the ones used by Alfonso XIII, which, by this provision of the constitution, the King is entitled to use.

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  15. The point is, Llanito World, that the FCO are arguing "control" of the waters not "ownership" (sovereignty) and the reason for this has nothing to do with EU forum or Caruana.

    I think there are two reasons:

    (1) Case for UK ownership (sovereignty) of waters is very weak - Gibraltar would have to get full self-determination first to be able to make such a claim;

    (2) The FCO are stuck with Utrecht (not Gibraltar though) and they seem to have a stricter policy of keeping to its terms.

    Therefore, Spain will have little to complain to them about. That was the peace agreement in 1713 and the status quo remains.

    True sovereignty will only be realised with true self-determination, which is what we do not have - THE 2006 BIG FAT LIE.

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