Gibraltar's 2006 Constitution, established by a UK Order in Council, confers almost full internal self-government on the territory and marks the latest phase in its 300-year journey from fortress colony to constitutional democracy. Dr Azopardi – a practising lawyer and former Deputy Chief Minister of Gibraltar, who played a key role in constitutional negotiations with the UK – begins his book by charting this journey by reference to formative events in Gibraltar's constitutional history under British rule.
Early milestones include the establishment of district “Committees of Inhabitants” to deal with a yellow fever outbreak in 1804. By that time the civilian population – drawn to Gibraltar from places like Genoa and Malta – had outstripped that of the garrison and by 1814 it had reached the 10,000 mark. The pace of constitutional change accelerated rapidly in the twentieth century with the establishment of the first representative legislature in 1957, responsible local government in certain defined domestic matters in 1964 and membership of the European Communities in 1973 as a territory for whose external relations the newly acceded UK was responsible.
According to the author the most significant moment in the development of a sense of Gibraltarian national identity was Spain's closure of its border with Gibraltar from 1967 to 1984. Instead of advancing Spain's territorial ambitions, this move only succeeded in fuelling the Gibraltarian “siege mentality” and the sense of collective identity that grows out of adversity in the face of a common enemy. Today the population – numbering some 30,000 people – continues to resist any accommodation of the Spanish claim.
The account of Gibraltar's constitutional history provides the backdrop to a wide-ranging study about the shift in sovereignty towards the people of Gibraltar and the way that the complex interplay between Gibraltar, Spain and the UK shapes the Gibraltarian constitutional landscape. The relationships between the parties are characterised by a seemingly irreconcilable clash of aspirations: Spain maintains its longstanding territorial claim; Gibraltar desires self-government without Spanish involvement; and the UK is caught between discharging its obligations towards Gibraltar and its interest in fostering good relations with Spain.
The Spanish claim and the UK's ambivalence towards it have given rise to a culture of bilateralism on issues relating to Gibraltar, where traditional notions of sovereignty – which the author argues belong to a “by-gone era” – often prevail over more progressive notions of participatory democracy.
The analysis of Gibraltar's position on the European stage is the strongest aspect of this work. The author notes that Gibraltar has more exclusive competences than even the most powerful EU regions. Despite having more to lose it is less able to protect itself from supra-national encroachments because it is denied participation at various levels of decision-making. It has no seat on the Committee of the Regions, a significant forum for the voicing of sub-State concerns, and the Gibraltarians were even denied the right to vote in EU parliamentary elections until the decision of the European Court of Human Rights in Matthews v. UK (1999) 28 E.H.R.R. 361. Britain's desire for Spanish co-operation to counter the Franco-German axis has led, in the author's view, to a heightened culture of Anglo-Spanish bilateralism in relation to Gibraltar in the EU context, which has in turn led to a denial of institutional representation and political participation. He considers this to be a major contributor to the deficit of democracy and governance in Gibraltar.
The assessment of Gibraltar's treatment at the hands of the UN is no less bleak. Each year the General Assembly issues a “consensus resolution” encouraging Britain and Spain to reach agreement on a post-colonial status for Gibraltar, while taking account of the interests (but not the wishes) of the Gibraltarians. The author attacks this State-centric approach as inconsistent with the principles of self-determination and legitimacy.
The work oscillates between describing the situation in Gibraltar as it is and prescribing, in aspirational terms, how it ought to be. The author suggests that various problems – from the territorial dispute to the democratic deficit suffered by Gibraltar in the EU – can be resolved by applying ideas drawn from the “modern legal context” that the book's title alludes to. He is not referring here to the modern legal context that Gibraltar actually finds itself in, but rather to a set of progressive trends in sub-State governance elsewhere in Europe that, in his view, the situation in Gibraltar ought to be conforming to.
The argument that the parties should “fully accept that they are operating within an environment of late sovereignty, constitutional pluralism, stateless nationalism and participatory governance” (p. 373) reflects a degree of wishful thinking that – by the author's own analysis – is not borne out by the reality on the ground in Gibraltar, despite the recent important advances in internal self-government. The same idealism is apparent when he argues that the situation in Gibraltar would be improved if only the parties were to abandon the “methodologies of the past” and set the dispute into a “proper” and “modern” legal context (p. 333). The methodologies and the context that he wishes away are no less “modern” for their failure to conform to governance trends in Scotland, Catalonia and other places that do not have to contend with irredentist claims by neighbouring States.
The real modern legal context that Gibraltar finds itself in – ably described in this work – is one where progressive notions of participatory democracy and stateless nationalism intermingle with traditional notions of territorial sovereignty and the interests of two powerful States, producing strange patterns of governance that the author acknowledges to be markedly different from approaches in other parts of Europe at sub-State level.
Anyone interested in issues of sub-State governance will benefit from reading this book. For those with a particular interest in the legal status of Gibraltar it is essential reading.
