Chief Minister's speech on Self Determination
Below is the speech that our Chief Minister gave.
THE SUNDAY TIMES OXFORD LITERARY FESTIVAL
Saturday 23rd March 2013
DECONSTRUCTING SELF DETERMINATION: LOOKING AT THE HUMAN SIDE
Fabian Picardo MP, Chief Minister, Gibraltar
Good afternoon to you all.
It is an absolute pleasure to have the opportunity to address you today in my university city, yards away from my own college, Oriel, which sits just outside the back door to Christ Church.
When I left this city almost exactly twenty years ago, in June 1993, I never expected to find myself back in the law library at Oriel.
Still less did I expect to find myself in that same library suffering from the common Oxford student affliction called “The Essay Crisis”…
But such is fate that I found myself in exactly that situation this morning in what would now more properly be called “speech crisis” as I sought the final references for this address.
I don’t think I have enjoyed myself so much academically in years!
In any event, the issue I want to deal with today is self-determination.
The right to self-determination in political terms is an established maxim of international law which is an essential aspect of Gibraltar’s arguments and the argument of the Falkland Islanders also, for example, in the international stage, in particular at the United Nations.
I make no apology for the fact that I will be concentrating on the right as it relates principally to the people of non-self-governing territories notified as such to the United Nations by colonial powers.
Reams have been written about this concept in the Public International Law textbooks that crowd law libraries such as the one I was in this morning.
Much has been argued about it in the international fora in which these matters fall to be decided.
Yet not so much has been said, written or argued for some time about the human aspect of the right to self-determination.
What does it mean to the subjects of the dry legal analyses that international lawyers and politicians argue over?
It is often said in presentations to relevant international fora that colonial people enjoy the right to self-determination and that the right is an inalienable human right.
The legal basis for such assertions is well known to those who follow the work of the UN Committee of 24 and of the Fourth Committee of the General Assembly of the UN in New York. The Charter of the United Nations Sets out in Article 73, which is Chapter 11 of the Treaty, a Declaration Regarding Non-Self-Governing Territories.
That Article recognizes that the interests of the inhabitants of the territories are paramount and requires Administering Powers to promote the interests of those inhabitants.
Specifically it requires this to be done by the development of self-government in each of the territories by the progressive development of free political institutions in each of them.
There are also some important and relevant Resolutions of the General Assembly which specifically set out further rights language.
But, instead on concentrating on the legal detail of those, let us instead distill the reasoning behind those international rules and understand why they remain so important today - even though the world - and even Gibraltar’s own relationship with UK - may feel much less Colonial than it might when the relevant UN resolutions were put in place by the General Assembly.
In order effect that distillation, we should, must understand the context in which the language of self-determination is forged.
Like most, if not all of the language of rights, the right of a nation to determine its political future emerged in tangible form after the Second World War in the United Nations Charter and its derivates.
It had not been many decades since the United States had finally abolished slavery, only decades after universal suffrage.
The world was changing from a privilege based model to a rights based model.
The post war drive to establish structures to prevent further wars and atrocities had resulted in the idea of a European Coal and Steel Community that would become a European Economic Community and then the European Union of today.
Similarly, a successor to the League of Nations was established to be headquartered in New York.
All of these entities originated around core beliefs best exemplified in the provisions of the Charter of the United Nations and the European Convention of Human Rights.
These two documents set out the "fundamental human rights and freedoms" which protect the liberty of the individual and life itself.
In that context of seeking to prevent further world wars a doctrine has to emerge to recognise that people could determine their political future other than through bloodshed.
If not, the wars between the then existing superpowers would simply have been replaced by conflicts engendered by people seeking decolonization from those established superpowers.
Because it was also at that time that many of the pink bits on the map also begun the exercise of pursuing their independence from the then British Empire - by peaceful and less peaceful means.
The Second World War straddled the rights movement in India led by Mr Ghandi.
It gave rise to the return of the Jewish people to the Middle East and the carving up of the map of that now troubled part of the world.
So the in making this analysis we must remember the context of two world wars in Europe in less than twenty five years; countless other conflicts in the previous century and all of this is happening decades and not centuries after the abolition of slavery in the United States - the nation that emerged strongest out of the allied destruction of Nazi occupied Europe.
The arrival of universal sufferage, the end of the second world war, the revelation of the atrocities committed in the name of German nationalism, the legacy of a continent that had lost successive generations to successive conflicts in less than 50 years, and the emerging clamour for decolonisation were all the issues driving violent confrontation in some countries and the establishment of a planet wide supra-organisation to resolve conflicts in the context of recognising not just the rights of states and nations but also, distinctly, the individual rights of each of their citizens.
This was a powerful cocktail that allowed the emergence then of the rights of a people to determine their political future and that of their nations (i.e. their land).
That is how we arrive at the UN Charter providing the guarantee trusteeship and continuing political development for colonial people.
It is in that context also that based on those provisions of the Charter that the Special Committee of the United Nations on Decolonisation is established, a process we will look in more detail at in a few moments.
With it, of course, comes the important and yet, now, perhaps infamous "list of non-self-governing nations" which is today reduced to sixteen states for whom transition to self-government must occur only as a result of the people declaring "their democratically and freely expressed wishes" in a referendum.
So, if you will indulge the fact that this analysis has not referred to the legal description of each of the well-known and relevant documents that set the international "fundamental human rights and freedoms", we have now traced in political and human terms the background and reasoning for the emergence of a doctrine fundamental to the avoidance of bloodshed in territorial conflicts where the driver is not one state’s strategic or nationalistic expansionism or greed but a distinct people's desire to assert their own separate rights over land they regard as unquestionably theirs.
Imagine the number of wars avoided when the people of a territory listed in New York by the Committee of 24 as "non-self-governing" have recognized to them the right in international law to choose to govern themselves instead of having to win that right in battle against another "colonising" state.
But how was that list established in a way that was credible internationally?
On this, I have drawn widely from reference works dealing with the subject.
That initial List of Non-Self-Governing Territories was created by compiling lists of dependent territories submitted by the administering States themselves.
In several instances, administering States were allowed to remove dependent territories from the list, either unilaterally (as in the case of many French overseas departments and territories), or by vote of the General Assembly (as in the cases of Puerto Rico, Greenland, the Netherlands Antilles, and Suriname).
The list therefore draws its origins clearly from the period of colonialism and the Charter's concept of trusteeship for non-self-governing territories.
Further, by operation of Article 73e of the Charter, member States actually agreed to report to the United Nations annually on the development of non-self-governing territories under their control.
Perhaps predictably, as an increasing number of formerly colonized countries became UN members, the General Assembly increasingly asserted its authority to place additional territories on the List and repeatedly declared that only the General Assembly had the authority to authorize a territory's being removed from the list upon attainment of any status other than full independence.
Clearly, that was happening because the “decolonised” did not wish to allow their previous “colonisers” to retain control of this list.
Here is emancipation in action in an international legal context.
Now that I am not your colonial possession we are equal in international legal terms.
For example, when Portugal joined the United Nations, it contended that it controlled no non-self-governing territories (because areas such as Angola and Mozambique were purported to be an integral part of the Portuguese state), but the General Assembly rejected this position.
Similarly, Western Sahara was added in 1963 when it was a Spanish colony.
The same can be said about the situation of Namibia (removed upon its independence in 1990), which was seen, due to its former status as a mandate territory, as a vestige of German colonial legacy in Africa.
Indeed, the criteria for determining whether a territory is to be considered "non-self-governing" was established in General Assembly Resolution 1541 (XV) of 1960.
Also in 1960, the General Assembly adopted Resolution 1514 (XV), promulgating the "Declaration on the Granting of Independence to Colonial Countries and Peoples", which declared that all remaining non-self-governing territories and trust territories were entitled to self-determination and independence.
It was in the following year, the General Assembly established the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples.
The Committee is sometimes referred to as the Special Committee on Decolonization or the "Committee of 24" because for much of its history the committee was composed of 24 members.
Today, it remains active and is reconstituted each year to review the situation in non-self-governing territories each year, analyse the reports submitted by the remaining Administering Powers and report to the General Assembly.
Either interestingly, or DEPRESSINGLY, the Committee has been designating each of the past two decades that I have been following its work as THE decade for the eradication of colonialism.
But at least, we can see in the process of establishment of the Committee how the usually painful process of decolonisation begun to take a different shape – through the exercise of the right of the self-determination - in the fifties and sixties than had been the case until then.
Although that is not to say that the process was always as peaceful as the rights culture identified had intended.
Moreover, apart from the powers that came together to kick start the concept that there should be an international "family of nations", there remained regimes throughout the globe and even in "old Europe" who did not ratify or were not welcome to ratify these conventions.
Dictatorships were not washed away even with the blood of millions dead in Europe and Asia in the nineteen forties.
Neither did dictatorships hold a monopoly in the denial of rights to some people's rights to determine their own future.
In fact, apart from the attitude of some tired colonial powers that seemed almost relieved to be rid of responsibility for vast, distant, swathes of the globe, many states (some of them "new states"), begun to take a less than generous approach to the right of some groups of people to determine their own future.
Indeed, in that context, what emerges is an international "NIMBYism" where some sign up categorically to high minded principles such as the right of individuals to determine their own future and defend such concepts around the world as good democrats - but not in their back yard.
Well, what more apposite examples for this conference than the attitude of allegedly modern and progressive democracies such as Spain and Argentina whose approach internationally can be juxtaposed to its regional reality.
The fact is that the great success of the entrenchment of the principle of self-determination in international law has been the massive reduction in the numbers of states listed as non-self-governing from 105 to 16.
The original list included some massive territories with very large populations who have been able to avail themselves of this right to become their own political masters without having to fight physically to achieve that freedom.
But the great failure of the international community must be the fact that the territories that remain on the list of non-self-governing nations include some of the smallest land masses or populations, some of us (though not Gibraltar) in the remotest reaches of the planet.
Nonetheless, perhaps because of the tenacity that comes from being a small nation, a small population or the sheer determination of will needed to survive in some of these remote territories, the fact is that we, the peoples of these territories remain indefatigable in the pursuit of our rights to determine our own political future; even if that is often in a more nuanced way than the simple "in or out" choices asserted by larger nations who have chosen to become independent of prior administering powers.
Anyone who is reading a UK newspaper these days can fail to see that sheer determination in the way that the Falkland Islanders, are fighting a tremendous battle to show Argentina and the world that there is no future where these islands are anything other than the property of the people who have been established here for generations before Argentina was itself a nation.
Dictatorships have been relevant to both of us.
Gibraltar saw Spain bury its own dictator, General Franco, who had made so much of the claim to Gibraltar.
Argentina would bury its dictatorship as a result of the Falklands War.
But neither Spain nor Argentina were clever enough to bury their expansionist nationalism with the dictators that exemplified such causes.
Democratic Spain and Argentina have pursued their claims despite their patently being anti-democratic in doing so.
This is where we should consider what the alternative to the right of self-determination is.
Because what Spain and Argentina fail to grasp is that they in effect seek to run rough-shod over people’s rights - those fundamental human rights the origins of which we have identified originate from the spilt blood of millions - just because nationalistic causes are still peddled with equal traction by the alleged democrats who lead their governments today.
Well in 2002 Gibraltar pronounced itself again on whether our people wished to become a part of Spain.
The result was a resounding no.
By 98.97% per cent the people of Gibraltar answered “NO” to the following question:
“On the 12th July 2002 the Foreign Secretary, Jack Straw, in a formal statement in the House of Commons, said that after twelve months of negotiation the British Government and Spain are in broad agreement on many of the principles that should underpin a lasting settlement of Spain's sovereignty claim, which included the principle that Britain and Spain should share sovereignty over Gibraltar.
Do you approve of the principle that Britain and Spain should share sovereignty over Gibraltar?”
Initially, to its eternal discredit, the UK Labour Government refused to give any legal weight to the referendum.
Indeed Jack Straw initially described the referendum as “eccentric”.
But the ballot box is final and in In his evidence to the British Parliament's Foreign Affairs Committee in 2008, Jim Murphy MP, Minister of State for Europe, stated:
“The UK Government will never — "never" is a seldom-used word in politics — enter into an agreement on sovereignty without the agreement of the Government of Gibraltar and their people. In fact, we will never even enter into a process without that agreement. The word "never" sends a substantial and clear commitment and has been used for a purpose. We have delivered that message with confidence to the peoples and the Governments of Gibraltar and Spain. It is a sign of the maturity of our relationship now that that is accepted as the UK's position.”
Because, of course, how could Britain do anything other than respect our wishes as to the future of our homeland?
How can Britain be pursuing our interests by denying our wishes?
The same is obviously true of the Falklands.
Peter Hain, as Minister for Europe, was fond of calling those of us who were against his Joint Sovereignty proposal “dinosaurs”.
Well, if the right to self-determination were not enshrined in law, the Labour Government might have been able to do a deal above our heads.
And then what?
Would we have been expected to take that lying down?
Hence the importance of regulating this area of international law.
Spain has, however, never stated that she has accepted the referendum and has actually said by the Spanish Minister of Foreign Affairs, Ana Palacio that our the referendum was "illegal" and "against all the UN resolutions".
Similar statements have emerged from Buenos Aires in recent weeks after the Falklands referendum.
The fact is, of course, that Spain does deep down know and recognise that Gibraltar will NEVER be Spanish, that our people will determine their own future and that her claim is both sterile and still born.
As Argentina surely must in the other case.
Because the fact is that no amount of makeup (of the international legal variety) can disguise Ms Kirchener's understand of the reality that the Falkland Islanders are masters in their own homeland; that the decolonisation resolutions of the General Assembly and the provisions of the Charter of the United Nations all illustrate the inalienable right to determine your future for yourselves and no number of trips to New York with no number of advisers and hangers on will ever change that.
But we do have to beware the attempts being made more perniciously to try to skew international law.
In recent years the latest rouse which has crept into the seminars organised by the United Nations is that Spain and Argentina (with a small coterie of supporters) have tried to create a flaw in the absolute nature of the right to self-determination.
The bright idea has been to suggest that the inalienable right of self-determination is alienable in instances where the territory over which a people purport to exercise their right is subject to a sovereignty dispute.
You can see the beauty of how Spain and Argentina have attempted to frame their con.
By limiting the curtailment of the absolute right to self-determination to cases of sovereignty disputes, they are, in effect, trying to tell the world - agree with us with no peril, as the only instances - or at least the most high profile - where the principle of self-determination and sovereignty disputes collide happen to be the cases of Gibraltar and the Falkland Islands.
You should have no fear that this principle of going to ever establish itself in international law as we continue to fight it in every relevant international forum
That is not to say that, despite having defeated attempts to lay down such a doctrine within the legal structure of the United Nations, it is not perniciously gaining some ground in texts by authors who do not benefit from the level of debate that goes on at the heart of UN decision making.
Most notable perhaps is the work of author James Crawford in his well-known tome "The Creation of States in International Law".
In Chapter 14 of that work, Mr Crawford, writing about the principle of self-determination and its application to non-self-governing territories, says this:
"A persistent and troublesome aspect of United Nations practice in the context of Chapter XI (the chapter of the UN Charter on the Declaration Regarding Non-Self Governing Territories) is the problem of claims made to non-self-governing territories (or former territories) by third States on grounds such as national reunification, or because the territory concerned is considered to belong to the claiming State under the rules relating to the acquisition of territory or on some other ground. For example, it has been said that certain territories are mere "colonial enclaves" created by colonizers on the territory of a surrounding State and having no legitimate separate identity. In such cases, it is said; the principle of self-determination has no application, or is relevant only so far as the modalities of transfer of the territory are concerned. In decolonization practice, various territories have been transferred to the claiming State rather than being treated as self-determination units; by far the best known case was Hong Kong, but there have been a number of others. Of the remaining sixteen Chapter XI territories, two, the Falkland Islands (Malvinas) and Gibraltar, arguable fall into this category." (End of quote.)
Well, let me tell you as a Barrister that there can be no end of intellectual somersaults done by people who want to prove the impossible.
Hence the mental gymnastics necessary to try and establish somehow that an "inalienable right" is somehow "alienable"; or that a "fundamental human right" is somehow not so "fundamental" and can be displaced simply by a claim over the very thing that is purportedly protected by such rights.
Yet the case is made for consciousness and vigilance by all of us who cherish our right to decide our political future and the future of our land for current and future generations.
We must assert our rights in referenda but we cannot stop there.
We must assert our rights also in international fora and in academia to ensure it is not perniciously stifled.
And we must stand together as we assert these liberties that were born from bloodshed.
Because it cannot be right that the law of the jungle, the law of might is right, should be able to trump once again the peaceful assertion by peaceful people of how we wish to live our lives.
To do so would ignore the human reasoning behind the legal right to self-determination.