Interpreting the
Treaty of Utrect

A letter to the
Gibraltar Chronicle
By Guy Stagnetto, QC

13 March 2001


The refusal of the Tribunal Supremo of Spain to recognise the jurisdiction of the Gibraltar Courts on the basis that Utrecht only ceded the territory of Gibraltar but not its Sovereignty or jurisdiction (reported in the Gibraltar Chronicle 8th March 2001) again shows the importance of having the provisions of the Treaty properly interpreted by an International Court.

Quite apart from the fact that the decision is contrary to the provisions of the Brussels & Lugano Conventions of which both Britain and Spain are signatories, the interpretation which the Tribunal Supremo gives to the Treaty of Utrecht is grotesquely erroneous.

The opening words of Article. X of the Treaty are:

"The Catholic King does hereby for himself, his heirs and successors yield to the Crown of Great Britain the full and entire propriety of the town and castle of Gibraltar together with Fort and Forts thereunto belonging; and he gives up the said propriety to be held and enjoyed absolutely with all manner of right forever without any exception or impediment whatsoever. But that abuses and frauds may be avoided by importing any kinds of goods, the Catholic King \vills and takes it to be understood that the above named propriety be yielded to Great Britain without any Territorial Jurisdiction and without any open communication by land with the country round about".

It must be recalled that when the Treaty was signed the distinction between the concepts of "Territorial Sovereignty" and "Crown's Property" (propriety) were far from well established and it was not unusual for cessions of Territorial property to include cessions of Sovereignty. It must follow that by ceding the full and entire propriety of Gibraltar to the Crown of Great Britain the King of Spain indeed transferred Sovereignty over the Rock.

The exclusion of "Territorial Jurisdiction" might seem at first sight to be difficult to understand since the very essence of State Sovereignty is precisely the ability of exercising full and exclusive jurisdiction over the territory of the State. However in accordance with the usual rules of the Treaty interpretation and in particular Article 31 paragraph 1 of the Vienna Convention on the Law of Treaties 1969, this exclusion of Territorial Jurisdiction must be interpreted in context; while the cession properly so called is the object of the first sentence of Article X of the Treaty of Utrecht the exclusion of Territorial Jurisdiction is provided for in the second sentence in which it is related to the avoidance of the abuses and frauds. To this end the Treaty excludes at the same time both "Territorial Jurisdiction" and "any open communication by land with the country around". An exclusion which is itself qualified in the next sentences of Article X.

It is clear, therefore that the expression "without any Territorial Jurisdiction" is meant to apply and applies only to the adjacent areas where the King of Spain intended to maintain his full and entire Territorial Jurisdiction in order to fight against abuses and frauds in the import "of any kind of goods".

It is only by such an interpretation that one is able to reconcile the absolute terms of the cession in the first sentence with the second sentence of Article X. This interpretation is also confirmed by subsequent practice. It seems clearly established that Great Britain has exercised full Territorial Jurisdiction over Gibraltar since 1713 without any interruption and this full exercise of Territorial jurisdiction has never been challenged by Spain.

The peaceful exercise of Sovereign Territorial rights over the Rock confirms that the exclusion of Territorial Jurisdiction did not apply to it in the mind of the parties.

The decision of the Tribunal Supremo is a serious affront to our legal institutions. It must be viewed with grave concern and cannot remain unchallenged. It certainly cannot be regarded as just another irritating tactic on the part of Spain.

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