Gibraltar -Territorial Integrity

Gibraltar - Territorial Integrity 1. UNGA 1514 - While UN Resolution 1514, Declaration on the Granting of Independence of Colonial Countries and Peoples of 1960, upholds the commitment to an ‘inalienable’ right to freedom and decolonization and states in paragraph 2 ‘All people have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’, it also prompts the Spanish viewpoint that paragraph 6 of UN Resolution 1514 states, ‘any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Charter of the United Nations.’ (UNGA 1514 (XV) Declaration on Granting of Independence to Colonial Countries and Peoples, 14 December 1960). 2. Application - UN Resolution 1514 although legally relevant is not legally binding and didn’t come into force until 1960 and is therefore subject to the general principle that UN resolutions are not be applied retroactively so any events occurring in the 18th century are not covered by this resolution. In this respect of non-retroactively the ICJ has made a number of judgments. ( ICJ Ambatielos Case, Greece & UK Judgment 1 July 1952, p40). 3. Case Law - The ICJ has judged that both Security Council and General Assembly resolutions cannot be applied retroactively. In the Lockerbie case the Court denied the objection because ‘the date, 3 March 1992, on which Libya filed its Application, is the only relevant date for determining the admissibility of the Application. Security Council resolutions 748 (1992) and 883 (1993) cannot be taken into consideration in this regard, since they were adopted at a later date.’ ( ICJ Libya –v- USA Preliminary Objections Judgment 27 Feb 1998, p 25, para 3). And in the Genocide case, ‘the Court stated that resolution 55/12 of 1 November 2000 (by which the General Assembly decided to admit the Federal Republic of Yugoslavia to membership in the United Nations) cannot have changed retroactively the sui generis (something is unique) position which FRY found itself in vis-à-vis the United Nations over the period 1992 to 2000, or its position in relation to the Statute of the Court and the Genocide Convention.’ (ICJ Genocide Case Bosnia & Herzegovina –v- Serbia, Application of Revision of Judgment, 11 July 1996, Press Release 2003/8, 3 Feb 2003, para 10). 4. Principle of Territorial Integrity - Even IF it were acknowledged for the sake of argument, that Gibraltar was part of Spanish territory it was explained that, the principle of territorial integrity was enshrined in the Covenant of the League of Nations and again in the Charter of the United Nations. Article 2 of the UN Charter provides that: ‘‘Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.’’ Threat or use of force impinges the territorial integrity of a state but general diplomatic and political declarations do not violate the principle. But this international legal rule applies only between states because ‘’members’’ under the UN Charter are only states. This leads to the conclusion that the principle of territorial integrity is the principle applied in relating between states and not inside a single state. Respecting the territorial unity/integrity of a state by its own population is a domestic affair and does not fall within the international law jurisdiction. (International Journal of Baltic Law, Volume 2, No2, Gudeviciûtê, V. 2005, p50). 5. Application by ICJ - The above view was confirmed by the 2010 Kosovo ICJ Advisory Opinion where the judgment explained that, ‘the Helsinki Conference on Security and Cooperation in Europe of 1st August 1975 stipulated that, ‘’participating states will respect the territorial integrity of the participating states.’’ Thus the scope of the principle of territorial integrity is confined to the sphere of relations between States.’ (ICJ Kosovo Advisory Opinion, 22 July 2010, p38, para 80). Thereby indicating, that the principle of territorial integrity does not impinge on the international law of selfdetermination and independence. The ICJ rejected Serbia’s claim that the move had violated its territorial integrity. Therefore, theoretically, even if Gibraltar was acknowledged as part of Spanish territory it would not stop the territory from breaking away and claiming independence through the exercise of self-determination. In 2010, the ICJ determined that Kosovo’s declaration of independence from Serbia was not unlawful. To date, one hundred and twelve UN member States, the majority, now recognise Kosovo as an independent State. (Who recognized Kosovo as an independent State/Kosovo thanks you.com).