The legal decision that cleared the way for the Gibraltar FA to join FIFA includes an unequivocal statement that Gibraltar cannot be denied its rights at the whim of Spain, the Chronicle can reveal.
The judgement from the Court of Arbitration for Sport [CAS] represents a landmark decision that will have wider long-term legal implications for Gibraltar internationally.
In the decision, a panel of experienced arbitrators confirmed that there is no legitimate sovereignty dispute over the Rock, nor is there any pending legal dispute as a matter of public international law.
Although the CAS finding was only a small element of a much wider case, it is nonetheless the first time that an international tribunal has declared a position on the Gibraltar question.
Pressed by the influential Royal Spanish Football Federation, FIFA had argued that Gibraltar was a disputed, sensitive territory, “a unique case” that should not be admitted as a member of football’s world governing body in the face of opposition from Spain.
But the three-man CAS panel dismissed that assertion and said blocking Gibraltar’s membership on those grounds would amount to a veto “without any legal basis”.
In its ruling, the panel found that “…under public international law the sovereignty of Gibraltar is clearly British and no actual legal dispute is presently pending.”
Not only that, the panel concluded “…there is no legitimate dispute, as Spain ceded Gibraltar to the United Kingdom in 1713 pursuant to Article X of the Treaty of Utrecht…”
The finding is hugely significant because on numerous occasions in the past – not just in football but in the EU and other international fora too – the Spanish Government has sought to exclude Gibraltar on the grounds that the Rock is a disputed territory.
The UK has challenged Spain to test its sovereignty claim before the International Court of Justice, but the Spanish Government has never submitted to an objective determination of the issues.
The UK and Gibraltar have always countered the Spanish claim that the Rock is a disputed territory. Now, the CAS has dismissed it too.
“It is a very significant finding,” said Michael Llamas, QC, the Attorney General and President of the Gibraltar FA.
“It is the first time that a court of law unequivocally states that the rule of law cannot be disapplied to Gibraltar at the whim of Spain, specifically, whenever Spain invokes the sovereignty dispute.”
“The CAS panel has tackled this vital issue head-on and has not shied away from making one of the most important rulings we have ever had in favour of Gibraltar.”
The CAS decision will be relevant in future every time Spain seeks to use its sovereignty claim to deprive Gibraltar from something it is entitled to as a matter of law.
“One obvious example is EU aviation measures,” said Mr Llamas, who formed a key part of the legal team that prepared the GFA’s case.
“I know that we are now in a Brexit scenario, but the approach CAS has taken here is the approach the EU Commission should have taken many years ago instead of agreeing to suspend the application of EU aviation measures to Gibraltar.”
The CAS panel of arbitrators was presided by Professor Massimo Coccia, a professor and attorney from Rome, Italy, who sat alongside Professor Jan Paulsson, a professor and attorney from Miami, in the US, and Bernhard Welten, an attorney from Bern, Switzerland.
Professor Coccia and Professor Paulsson are considered to be among the top arbitrators and international lawyers in the world.
The court’s decision in the case between the GFA and FIFA has not yet been published in full.
However, following repeated requests over several weeks, the Gibraltar FA finally agreed to release sections to the Chronicle after Chief Minister Fabian Picardo referred to the ruling during an address to the UN Committee of 24 earlier this year. At the time, Mr Picardo described the decision as “a seminal judgement”.
“What the decision does is that it sets an important precedent to be followed by other courts and international organisations,” Mr Llamas told the Chronicle yesterday.
“The analysis carried out by CAS is the right one and the one that should be followed.”
“In my view, it is also saying, as our Chief Ministers have constantly been telling the UN, that if Spain really believes in what it says it should take its dispute to the relevant court and until such time as it does so, its position is not credible and should be disregarded.”