To be or not to be ... a Colony?

We are again in UN 4th Committee and UN C24 season. All the politicians roll out their different shades of thin slicing  political argument (to give an impression of difference and greater nationalism) on the issue of Gibraltar being delisted from the UN list of the 16 remaining non-self-governing territories. Where does this actually get us?

So much that is said is so irrelevant to today's Gibraltar. So much of what is said is for internal consumption to gain electoral popularity. So much of what is said is sterile and boring argument between politicians on issues that are of no or little concern to the electorate. For these reasons, I decided to take a look, once again, at what  this subject is really about. I decided to go to the core documentation to enable me to come to my own conclusions on the issue of Gibraltar and its UN classification as a non-self-governing territory. It is not an issue that one can be right or wrong on. It is an issue on which one can have an opinion. For what it is worth I write about what is now my view.

What struck me first is that the UN Charter does not define or refer to "colony". It deals with "non-self governing territories". Article 73 talks of nations  " ... which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government " and of the UN recognising " ... the principle that the interests of the inhabitants of these territories are paramount"  and the UN accepting "... the obligation to promote ... the well-being of the inhabitants of these territories ..." It is self-evident that the thrust of the duty imposed on members of the UN, which includes Spain, relates to inhabitants and not to issues of ownership of or sovereignty over the territory itself. How does the UN say that "... a full measure of self-government ..." is attained? Well the answer to this is provided in General Assembly Resolution 1541 of 1960, which provides three methods, independence, free association or integration.

Well we all know, now, that independence is not, in the eyes of the UK, possible without Spain's agreement because the UK consider that it is bound by the option of first refusal in favour of Spain contained in the Treaty of Utrecht. In my view this position of the UK is the determinative of this option, albeit that it is not accepted by Gibraltar. This raises an interesting thought, that it is not the UK that is the member of the UN which is preventing delisting Gibraltar but rather Spain. Spain argues that the road to delisting is not independence but rather integration with Spain. This suggestion, however, breaches the fundamental  duty imposed on Members of the UN by Article 73 that the duty is towards inhabitants and not territorial ownership or sovereignty. Spain should not be permitted to use the UN to advance its sovereignty claim, that is not within the remit of the UN.

It is interesting to see the evolution of this concept of caring for inhabitants. It is vocalised in General Assembly Resolution 1514. It asks UN members to be mindful of human rights, the dignity and worth of humans, equal rights, social progress and better standards within larger freedom. Further to be conscious of the need for stability by respecting equal rights and self-determination, of observance of human rights and fundamental freedoms without discrimination. They further recognise the desire for independence and are aware of the conflict and threat to peace that this desire brings, whilst recocgnising that lack of self-government prevents economic cooperation and impedes social, cultural and economic development.  It affirms the right of people to freely dispose of natural wealth and resources. It talks of "liberation" to avoid serious crises and to end segregation and discrimination and the right to "complete freedom".

So where are we on this list of wishes?  I think we can all agree that protection of fundamental, human and equal rights is included in and protected by the 2006 Constitution, which binds the UK. Gibraltar is stable and peaceful. There is no conflict or threat to peace through lack of independence. There is such sufficiency of self-government in Gibraltar as allows for economic cultural and social development. It  allows us full control of our means of "production" and economic prosperity. We are "liberated", save from ourselves due to our lack of desire in our own elected political classes to reform the  electoral system and Parliament to provide greater accountability. There is no discrimination or curtailment of "complete freedom" in the modern 21st century accepted sense and as available in any other territory or nation.

Does that mean that we are decolonised? To me, it most certainly does, especially in light of the reigning realities of how Gibraltar is run and governed as reinforced by the modern relationship that exists with the UK and the respect shown, in practice, by the UK towards Gibraltar's institutions and government. I have no complex whatsoever on that subject. I do not feel at all self-conscious about Gibraltar's relationship with the UK.  What I describe is my view of the reality of today's Gibraltar. which is not a "colony" in the sense of an oppressed or disadvantaged people that have no or few rights.

Does it mean that we have exercised our full and complete right to self-determination? No, unfortunately there is a reason why this cannot be and is not so to the ultimate degree but it is important to understand that this is a matter of degree. The reason is the continual reaffirmation by the UK of Spain's option under the Treaty of Utrecht combined with Spain's intransigent emphasis on its territorial claim and not the rights of the inhabitants of Gibraltar. These territorial aspirations in disregard of the inhabitants are contrary to Spain's obligations under the UN Charter. It is these factors that lead to the restrictions on absolute self-government that are included in the 2006 Constitution that I have repeatedly written about, namely the Governor's powers and the reserved right of the UK to impose direct rule. This does not detract from the practical reality that today Gibraltar is for all intents and purpose and in practice a self-governing territory.

Do these constitutional restrictions matter in reality in manner that detracts from self-government? I think not because the Governor's powers on defence, security and international obligations are matters that Gibraltar could not deal with effectively and their application by the UK are, in any event, circumscribed by international law, convention and practice. The UK's right to ensure good governance under the 2006 Constitution is a safeguard to democracy and so inline and consonant with the objectives of the UN as expressed in its Charter and applicable resolutions.

Additionally, avoiding interference by the UK on the ground of breaches of good governance is the responsibility of and totally under the control of our elected government and the manner in which it behaves and exercises its powers. The ability to improve on the delivery of good governance lies with Gibraltar's government and Parliament through effecting electoral and parliamentary reforms. It should effect these soonest.

I really do not believe, nor can I conceive that Gibraltar's lack of ability to exercise a final right of self-determination by arrangement with and act of a member of the UN, Spain, renders us, applying 21st century concepts and principles, a non-self-governing territory or a colony. This is so clearly outside the mischief that the UN has vocalised in its resolutions, as briefly explained above, that it wants to prevent. I hold the view that this fine distinction between being a "colony" and not having exercised the absolutist's and purist's view of self determination can be drawn in today's world. If it does render Gibraltar a non-self-governing territory, the finger must be pointed at Spain and not the UK.

It is Spain's politics,arisng in part fro Spain's opportunistic use of the UK's adherence (for reasons of its own and never fully explained) to outdated historical treaties, that is prohibiting an advance that the UN seeks should be achieved. The UN requires this advance to meet its stated aim, importantly, for the benefit of inhabitants and not physical territorial aspirations of a third party nation, Spain. The 2006 Constitution deals with the vast bulk, not to say all, criticism that could be levied in terms of the considerations of the UN on ridding the world of non-self-governing territories as summarised above.

In this scenario one should consider the stance adopted by the  UK at the UN 4th Committee in 2009. Briefly the UK states that it has a modern relationship with its UKOTs. This relationship is based on partnership, shared values and self-determination. It is not based on an imposition of independence. If independence is an unconstrained option it is willing to grant it, so long as the relevant inhabitants so desire but whilst the link with the UK is relished, so be it. Surely the UN cannot possibly be critical of this? The UK emphasizes its commitment to good governance, political and economic transparency, enhanced security and reduced vulnerability to natural and man-made disasters. In summary, the UK's fundamental aims are "... high standards of probity and governance .. ." with " .... no wish to micromanage its relationship with ... " the UKOTs. Its commitment is " ... allowing each to run its own affairs to the greatest degree possible ... "

This brings me to the recent controversy, to go or not to go to either or both of the UN 4th Committee and/or the UN C24?

One thing I am sure of: the reason given by the GSD Government for not going to the UN C24 is no reason. It is not accurate to say that the UN 4th Committee deals with sovereignty and the UN C24 with decolonisation, both committees deal with decolonisation.

The answer seems obvious to me, whilst there is any doubt in the minds of the UN as to Gibraltar's status, we must go. We must go to put our case to both committees, namely that we are not an oppressed people  but a free people under a good constitution and that we are self-governing. We must go to support the arguments of the UK. These seem to me to be eminently sensible, simple and in line with what the UN has identified that it wants to achieve and to  avoid in so called non-self-governing territories. We must go to tell the UN that if they want Gibraltar to achieve absolute self-determination it is the position adopted bythe UK (its adherence to the Treaty of Utrecht) and the opportunism applied by Spain, relying on this right under the Traety of Utrecht, in furthering its claim before the UN that prevents it but that if given a choice between one or the other, we are happy with our lot, our constitutional advances and our treatment by the UK.

We should not go and act in manner that will worsen our relations with or to confront the UK. This will simply please Spain. We should not go in order that our politicians make speeches that are mere electoral posturing for home consumption. We should not go to highlight internal or external conflict. It is easy really but why is it not done?