In response to Stephen Potts’s interpretation of the Treaty of Utrecht regarding Gibraltar, this analysis examines why his fundamental assumptions are historically inaccurate. By examining the crucial distinction between property rights and sovereignty in 18th-century international law, supported by contemporary examples from across Europe, we demonstrate how Potts’s reading contradicts both historical evidence and diplomatic practice of the period. His anachronistic application of modern UN principles to a 1713 treaty further undermines his argument.

This article is the first in a series addressing the claims made by Stephen Potts in his text “Gibraltar – Spanish Myths and Agreements” (PDF 88,8 KB). Here we specifically address his first argument regarding the interpretation of the Treaty of Utrecht’s cession of Gibraltar, particularly his claims about property rights and sovereignty, and his anachronistic use of the UN Charter to invalidate the treaty’s return clause. His remaining arguments will be addressed in subsequent articles in this series.

Stephen Potts claims that the first paragraph of Article X of the Treaty of Utrecht grants Britain absolute property over Gibraltar, and that the words “without any exception or impediment whatsoever” would be meaningless if complete sovereignty had not been granted to the British Crown. This argument presents several fundamental problems:

1. The Critical Distinction Between “Propriety” and Territorial Sovereignty

The original text of the Treaty (misquoted in his article) specifically states:

“The Catholic King does hereby […] yield to the Crown of Great Britain the full and entire propriety of the town and castle of Gibraltar together with the port, fortifications and forts thereunto belonging;”

It is crucial to note that:

  1. The cession is explicitly limited to “the town and castle of Gibraltar together with the port, fortifications and forts thereunto belonging
  2. Immediately afterward, the treaty establishes an explicit restriction: “without any territorial jurisdiction”
  3. The treaty specifically uses the term “propriety” and not “sovereignty”
First edition of the 1713 Treaty of Utrecht between Great Britain and Spain in Spanish (left) and a later edition in Latin and English.

First edition of the 1713 Treaty of Utrecht between Great Britain and Spain in Spanish (left) and a later edition in Latin and English.

2. The Fallacy of the “Full Sovereignty” Argument

Potts’s argument about supposed “full sovereignty” is historically inaccurate and legally untenable for several reasons:

  1. The Treaty deliberately uses different legal terms when expressing different levels of control:
    • For Gibraltar, it specifically uses “propriety”
    • In other articles of the same treaty, when referring to cessions of full sovereignty (as in the case of Minorca, Article XI), it uses explicit terms such as “full and absolute dominion”
  2. The Treaty text itself imposes specific limitations that would be incompatible with supposed “full sovereignty”:
    • Prohibition of providing refuge to Moorish ships
    • Prohibition of allowing Jews and Moors to settle
    • Guarantee of free exercise of the Catholic religion
    • Restriction of land trade
    • Preferential right of return to Spain
  3. In the 18th century context, it was common to have:
    • Territories with property rights without full sovereignty
    • Strongholds with limited jurisdiction
    • Cessions with specific conditions

3. The Fallacy of the British Interpretation

Potts argues, citing Levie, that the phrase “without any exception or impediment whatsoever” would be meaningless if it did not imply total sovereignty. This argument is fallacious for several reasons:

  1. It ignores the historical and legal context of the 18th century, where the distinction between property and territorial sovereignty was common in international treaties
  2. It contradicts the logical structure of the treaty itself, which first establishes a property cession and then specifically limits it by excluding territorial jurisdiction
  3. It violates the basic principle of legal interpretation that specific limitations prevail over generalities
Portrait of Philip V of Spain, by Jean Ranc

Portrait of Philip V of Spain, by Jean Ranc

4. The Explicit Territorial Limitation

The second paragraph of Article X is crucial and deliberately ignored in Potts’s interpretation:

“But that abuses and frauds may be avoided by importing any kind of goods, the Catholic King wills, and takes it to be understood, that the above-named propriety be yielded to Great Britain without any territorial jurisdiction.”

This clause:

  • Explicitly defines the limits of the cession
  • Clearly establishes that territorial jurisdiction is excluded
  • Directly links the limitation with the purpose of preventing smuggling

5. The Practical Implications

The correct interpretation of the treaty has important practical implications:

  1. The cession is limited to the walled perimeter of the city and castle existing in 1713
  2. It does not include territorial waters
  3. It does not include the isthmus or adjacent territories
  4. It does not grant the right to expand the territory beyond the original limits

6. The Anachronism of the Return Clause and the UN

Potts attempts to invalidate the return clause of the Treaty of Utrecht by citing Article 103 of the United Nations Charter. This argument is fundamentally flawed for multiple reasons:

  1. Legal Anachronism
    • It is a fundamental methodological error to retroactively apply a 1945 treaty (UN Charter) to interpret or invalidate the provisions of a 1713 treaty
    • The international law principle of tempus regit actum establishes that legal acts must be evaluated according to the law in force at the time of their conclusion
    • The validity of the Treaty of Utrecht and its provisions must be analyzed according to 18th-century international law
  2. Misinterpretation of UN Article 103
    • Article 103 refers to conflicts between Charter obligations and other contemporary international agreements
    • It was not designed to retroactively invalidate provisions of historical treaties that form part of the international territorial order
    • Its purpose is to ensure the primacy of the Charter in current international relations, not to rewrite legal history
  3. The Return Clause as a Fundamental Element
    • The return clause was an essential condition for the cession
    • It forms an integral part of the package of limitations that define the nature of the cession
    • It demonstrates that the cession was neither absolute nor unconditional
VeΓΌe of the Straits of Gibraltar and Environs, with the trenches of the Siege laid in 1704 by Louis Boudan

VeΓΌe of the Straits of Gibraltar and Environs, with the trenches of the Siege laid in 1704 by Louis Boudan

Conclusion

Potts’s interpretation deliberately ignores:

  • The legal distinction between property and sovereignty
  • The specific limitations established in the treaty
  • The historical and legal context of the 18th century
  • The explicit intention of the parties reflected in the text

The Treaty of Utrecht ceded the property of the town and castle of Gibraltar but explicitly excluded territorial jurisdiction beyond these specific limits. The idea that the treaty’s words “would make no sense” without implying full sovereignty is absurd, considering that the negotiators on both sides were experienced diplomats who perfectly understood the difference between property and sovereignty. If the intention had been to grant full sovereignty, they would have expressed it explicitly, as they did in other parts of the same treaty.

Appendix: Historical Examples of Property Rights Without Full Sovereignty

To further demonstrate that the distinction between property rights and sovereignty was common practice in 18th century international relations, we can examine several contemporary examples:

1. Dunkirk (1662-1712)

  • England held property rights and control over the city
  • The territory technically remained under French sovereignty
  • Louis XIV eventually recovered it
  • This case shows how a major power could hold property rights without full sovereignty

2. City of Bremen

  • While being a Free Imperial City
  • Sweden held specific property rights over certain fortifications
  • Did not possess full sovereignty over the city
  • Demonstrates the complexity of property rights vs. sovereignty in the period

3. Barrier Fortresses (1715-1782)

  • The Netherlands maintained garrisons in several cities in the Austrian Netherlands
  • Had property rights over fortifications but not territorial sovereignty
  • Sovereignty remained with Austria
  • A clear example of military presence and property rights without sovereign rights

4. Livorno under the Medici

  • Had special status as a free port
  • Different powers held property rights over specific facilities
  • Sovereignty remained with the Grand Duchy of Tuscany
  • Shows how commercial rights could be separated from sovereign rights

These examples demonstrate that the arrangement established by the Treaty of Utrecht regarding Gibraltar was not unusual for its time. The distinction between property rights and sovereignty was well understood and commonly applied in international agreements of the period.

Sources

  • Lincoln, S. (2006). “The Legal Status of Gibraltar: Whose Rock is it Anyway?”. Fordham International Law Journal, 18(1), 285-331.
  • https://en.wikisource.org/wiki/Peace_and_Friendship_Treaty_of_Utrecht_between_Spain_and_Great_Britain#ARTICLE_X
  • Fawcett, J.E.S. (1967). “Gibraltar: The Legal Issues”. International Affairs, 43(2), 236-251.
  • Gold, P. (2005). “Gibraltar: British or Spanish?”. Routledge.
  • Elias, T.O. (1980). “The Doctrine of Intertemporal Law”. American Journal of International Law, 74(2), 285-307.
  • Lesaffer, R. (2004). “Peace Treaties from Lodi to Westphalia”. In Peace Treaties and International Law in European History: From the Late Middle Ages to World War One. Cambridge University Press.