10.6092/issn.2531-6133/11381
This short essay makes three points regarding Brexit that have not been widely considered in public or academic debate. First, Brexit advocates (Leavers) successfully misrepresented the referendum of June 2016 as a definitive expression of democratic will. (“The people have spoken.”) The slim majority result was less than such an expression, particularly because it ignored intercommunal and intergenerational democratic values—most profoundly, overriding clear majorities in Scotland and Northern Ireland which had voted to remain in the EU. Second, even though within a year of that referendum, a majority of Britons (Remainers) had come to oppose Brexit, political leadership among the Remainers was woefully ineffective. Some, like Prime Minister Theresa May, simply changed sides, wrongheadedly accepting the people-have-spoken rhetoric. Other Remainers continued to make their case, but did not effectively argue that people had not spoken. Perhaps, most crucially, the British “first past the post” electoral system provided no viable remain option in the December 2019 Parliamentary elections. Put simply, in the December 2019 Parliamentary elections, Remainers had no one to vote for. Third, hopes that the UK could easily rejoin the European Union (encouraged in part by remarks of EU leaders) are false. Article 49 of the Treaty on European Union (TEU) requires that a state which has left the EU should go through a rigorous admission process. Since Article 49 requires unanimity among EU member states, any member with an objection to Britain rejoining could block readmission. Most troubling for Britain could be Spain’s long-standing claim for the return of Gibraltar to which the UK would be loathe to accede and from which Spain would be loathe to retreat.
application/pdf
2531-6133
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James J. Friedberg
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Brexit, the Misrepresentation of Democracy, and the Rock of Gibraltar
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2020-07-19
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James J. Friedberg
2020/07/19
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Brexit, the Misrepresentation of Democracy, and the Rock of Gibraltar
https://bolognalawreview.unibo.it/article/download/11381/11395
5
    llVOLUME 5                                      llISSUE 1                          ARTICLES & ESSAYS



                                 UNIVERSITY OF BOLOGNA LAW REVIEW
                                h ps://doi.org/10.6092/issn.2531-6133/11381
                                                      A

                    Brexit, the Misrepresenta on of Democracy,
                              and the Rock of Gibraltar
                                              JAMES J. FRIEDBERG †


                                                    ABSTRACT

    This short essay makes three points regarding Brexit that have not been widely considered in
    public or academic debate.
    First, Brexit advocates (Leavers) successfully misrepresented the referendum of June 2016 as a
    definitive expression of democratic will. (“The people have spoken.”) The slim majority result
    was less than such an expression, particularly because it ignored intercommunal and
    intergenerational democratic values—most profoundly, overriding clear majorities in Scotland
    and Northern Ireland which had voted to remain in the EU.
    Second, even though within a year of that referendum, a majority of Britons (Remainers) had
    come to oppose Brexit, political leadership among the Remainers was woefully ineffective. Some,
    like Prime Minister Theresa May, simply changed sides, wrongheadedly accepting the
    people-have-spoken rhetoric. Other Remainers continued to make their case, but did not
    effectively argue that people had not spoken. Perhaps, most crucially, the British “first past the
    post” electoral system provided no viable remain option in the December 2019 Parliamentary
    elections. Put simply, in the December 2019 Parliamentary elections, Remainers had no one to
    vote for.
    Third, hopes that the UK could easily rejoin the European Union (encouraged in part by remarks
    of EU leaders) are false. Article 49 of the Treaty on European Union (TEU) requires that a state
    which has left the EU should go through a rigorous admission process. Since Article 49 requires
    unanimity among EU member states, any member with an objection to Britain rejoining could
    block readmission. Most troubling for Britain could be Spain’s long-standing claim for the return
    of Gibraltar to which the UK would be loathe to accede and from which Spain would be loathe to
    retreat.


                                                    KEYWORDS
                     Brexit; Referendum; European Union (EU); Gibraltar; United Kingdom (UK)


†
     Posten Professor of Law, West Virginia University College of Law (US). J.D., Harvard Law School, 1975. B.A.,
    Temple University, 1972. Diplome, Institut International des Droits de L’Homme, 1989.
    The author thanks Isabella Anderson West Virginia University College of Law, J.D. expected 2021, for her
    valuable research assistance. Ms. Anderson helped research and draft many of the footnotes. She provided a
    critical eye and useful suggestions on the main text of the essay.
    The author thanks the West Virginia University College of Law and its Posten and Hodges Funds for their
    support of the research that enabled this piece.
    The author thanks colleagues Professors Sean Tu and Chuck DiSalvo for their generous time and critical
    suggestions as draft readers.




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       BREXIT, THE MISREPRESENTATION OF DEMOCRACY, AND THE ROCK OF GIBRALTAR


                                            TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        .   .   .   .   .   .   .   .   210
1. Intercommunal Democracy . . . . . . . . . . . . . . . . . . . . . . . . . .              .   .   .   .   .   .   .   .   211
2. Intergenerational Democracy . . . . . . . . . . . . . . . . . . . . . . . . . .          .   .   .   .   .   .   .   .   214
3. A Corrupt and Xenophobic Referendum . . . . . . . . . . . . . . . . . . . .              .   .   .   .   .   .   .   .   215
         3.1. Corrupted Process — Dark Money and Russian Influence . . . . .                .   .   .   .   .   .   .   .   216
         3.2. Corrupted Substance — Xenophobia, Anti-immigrant Propaganda                   .   .   .   .   .   .   .   .   216
4. Vote Again . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       .   .   .   .   .   .   .   .   217
5. Come Again? (Reentry and “The Rock”) . . . . . . . . . . . . . . . . . . . .             .   .   .   .   .   .   .   .   222
         5.1. Sovereignty over Gibraltar and International Law . . . . . . . . .            .   .   .   .   .   .   .   .   224




      INTRODUCTION

Brexit advocates successfully misrepresented the referendum of June 2016 as a binding
expression of democratic will — ignoring its lack of inter-communal and
intergenerational democracy. This misrepresentation has fostered a violation of the
internationally recognized right of self-determination of the Scots as well as of the
Irish.1 Furthermore, the referendum of 2016 merely proved that, on a single day in June,
a transient bare majority (51.9%) of that day’s voters purported a desire to leave the
European Union (EU),2 failing to speak for two generations of Britons who had
constructed profound ties with the Union or for future generations of Britons who would
not enjoy those ties.
          Brexit threatens political morality and economic well-being. It is a bad thing.
Regrettably, it will be hard to undo.
1
  The global community has recognized self-determination as a binding rule of international law at least since
  the entry-into-force in 1976 of the United Nations Covenant on Civil and Political Rights. The very first
  substantive sentence of that important and universal treaty reads, “All peoples have the right of self-
  determination.” International Covenant on Civil and Political Rights art. 1, ¶ 1, Dec. 16, 1966, 999 U.N.T.S.
  171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]. The development of the principle of self-
  determination probably traces its modern state practice to Woodrow Wilson’s conception of a post-colonial
  world order after World War I. The American and French Revolutions of the late 18th Century and their
  declaratory documents implicitly sowed the seeds of the doctrine. The rule was probably customary law
  well prior to its legislation into treaty law in 1976 by the ICCPR. The UN Charter references it in Article 1 as
  supporting the “purposes” of the United Nations. U.N. Charter art 1, ¶ 2. While jurists, statespeople, and
  scholars have debated the parameters of self-determination (see the Canadian Supreme Court’s excellent
  analysis in the Quebec Opinion), it seems undeniable that the Scots are a distinct “people” and that Scotland
  being yanked out of the EU against its will would seem to deny that right. The Quebec opinion persuasively
  concludes that a people enjoying internal self-determination within a larger state (such as the Québequois
  in Canada) are not entitled under international law to seek external self-determination, that is, separation
  from the larger state. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, ¶¶ 135–37 (Can.). However, if
  self-determination within the larger state is denied, then external self-determination would be appropriate.
  Id. at ¶ 138. Being forced to leave the European Union against the will of the majority of Scots would seem
  to fit in the latter category.
2
  See e.g., EU Referendum: Results, BBC, https://www.bbc.com/news/politics/eu_referendum/results .


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      1. INTERCOMMUNAL DEMOCRACY

Four nations constitute the United Kingdom (UK) — England, Scotland, Wales and
Northern Ireland.3 Two of those four, Scotland and Northern Ireland, voted against
Brexit.4 But England is more populous than the other three combined.5 So, on that one
June day in 2016, the English vote was sufficient to create the slim UK majority for
leaving Europe. The wishes of Scotland and Northern Ireland counted for naught. Such a
summary procedure dominated by one nationality does not serve deeper democracy in a
multinational state like the UK, particularly when faced with a fundamental
constitutional change.6 The whim of a one-time popular vote should not alter the
complex structure and balance of a modern representative democracy.
           For Scotland, Brexit once again raises the question of independence. Britain’s
exit from Europe may be followed by Scotland’s exit from Britain. In the 2014 Scottish
referendum, 45% of Scots favored independence.7 The Sottish National Party holds
Scotland’s largest Parliamentary block.8 With the will of the Scots to remain in the EU
overridden by the English vote to leave, that 45% could easily swell above 50%.9 British
Prime Minister Johnson (if still in office) could find himself the head of government of a
much smaller state.
           For Northern Ireland, Brexit’s result may be even more traumatic.
           It is “the birthright of all the people of Northern Ireland to identify themselves
and be accepted as Irish or British or both . . .”.10 Thus, the Good Friday (Belfast)
3
   See e.g., Nicholas A. Barr et al., United Kingdom, in ENCYCLOPAEDIA BRITANNICA, https://www.britannica.com/pla
   ce/United-Kingdom/The-lowland-zone.
 4
   See EU Referendum: Results, supra note 2. Gibraltar, discussed below, overwhelmingly voted Remain as well.
   Cf. EU Referendum: Local Results, BBC, https://www.bbc.com/news/politics/eu_referendum/results/local/g.
   Supporters of Brexit came to be known as Leavers whereas opponents of Brexit came to be known as
   Remainers. Similarly, the press, politicians, and public came to speak of the remain vote and the leave vote.
 5
   See e.g., Population Estimates for the UK, England and Wales, Scotland and Northern Ireland: mid-2018,
   OFFICE FOR NATIONAL STATISTICS , https://www.ons.gov.uk/peoplepopulationandcommunity/populationand
   migration/populationestimates/bulletins/annualmidyearpopulationestimates/mid2018#englands-popula
   tion-continued-to-grow-at-a-faster-rate-than-the-rest-of-the-uk-in-mid-2018.
 6
   In contrast, for the United States to alter its constitution (a fundamental change approximate to a Brexit),
   an amendment must pass both houses of Congress, then be ratified by the legislatures of three-quarters of
   the states. See U.S. Const. art. V.
 7
   See e.g., Scotland Decides: Results, BBC, https://www.bbc.com/news/events/scotland-decides/results .
 8
   See e.g., Current State of the Parties, THE SCOTTISH PARLIAMENT, https://www.Parliament.scot/msps/12450.as
   px.
 9
   Ironically, Spain, often at odds with Britain over the last half millennium or so, might support the UK
   in opposing independent Scottish entry into the EU, because of Catalonia. See Eddy Wax, Spain Fires
   Diplomat in Scotland over EU Membership Letter, Politico (Jun. 8, 2019), https://www.politico.eu/article/spain-
   fires-diplomat-in-scotland-over-eu-membership-letter/.            If Scotland may break away from Britain by
   referendum, why not Catalonia from Spain? Northern Ireland would be a less threatening case to Spain,
   since Northern Ireland would not enter as an independent break-away state, but as a region of an already
   existing EU member — Ireland.
10
   The Belfast Agreement art. 1.6, U.K.- Ir, Apr. 10, 1998, https://www.gov.uk/government/publications/the-
   belfast-agreement.

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       BREXIT, THE MISREPRESENTATION OF DEMOCRACY, AND THE ROCK OF GIBRALTAR


Agreement in 1998 marked the end of “The Troubles” — two decades of intercommunal
violence —11 with the recognition that national identity need not be exclusive and
competitive. The agreement among the United Kingdom, the Republic of Ireland, and
both the Protestant and Catholic communities of Northern Ireland, declared peace after
thirty years of market bombs, rubber bullets (and lead ones), assassinations, and
interments without trial — the Troubles.12 The European Union played a part in enabling
such peace. Its chief contribution was not as a mediator, but as a re-constructor of
identity — not by any particular acts of Brussels Eurocrats, but by the EU’s very existence
as a supra-national political, social and economic space. Young people, particularly, had
begun to think of themselves as European as well as French or German or Dutch.
Development of such multilayered identities — European, as well as “Irish or British or
both” — fostered a mentality of shared and variable belonging that contributed to the
Good Friday peace, a monumental political achievement for the two great, but
sometimes distrustful, island neighbors of Britain and Ireland.
           Brexit screws this up — re-emphasizing exclusive and competitive identities and
ignoring the wishes of Northern Ireland which voted to remain. Leaving the EU reimposes
a border in the interior of the island of Ireland or else a border in the Irish Sea partitioning
Ulster13 from the rest of the UK. Either the Catholic community will feel wronged being
separated from the Irish Republic or the Protestant community will feel wronged being
separated from Britain. Or both. The renewed ascendancy of difference, other-blaming
and rekindled violence could follow. Brexit brings back the us-and-them mentality that
the Good Friday Agreement had wisely finessed, as that accord turned a page away from
the violent Troubles. Brexit, in contrast, highlights the differences between Catholics and
Protestants14 in Ireland and roils the peace.


11
   Actually, the violence was more complicated than merely intercommunal, Protestant against Catholic.
   Militias from each community warred at times with British troops sent to Ulster to keep the peace, and even
   on occasion, fought with each other for dominance within the Catholic or Protestant camp. See generally
   PAUL DIXON, NORTHERN IRELAND: THE POLITICS OF WAR AND PEACE (2001); JOHN COAKLEY, CHANGING SHADES OF
   ORANGE AND GREEN (2002); ROGER MACGINTY & JOHN DARBY, GUNS AND GOVERNMENT: THE MANAGEMENT OF THE
   NORTHERN IRELAND PEACE PROCESS (2002).
12
   Jeff Wallenfeldt, The Troubles, in ENCYCLOPAEDIA BRITANNICA (May 14, 2019), https://www.britannica.com/eve
   nt/The-Troubles-Northern-Ireland-history.
13
   Ulster is the historic geographical region now made of the six counties of Northern Ireland. Within this
   essay, the two names for this territory are used interchangeably, although some experts might find different
   cultural or political connotations for each. For example, after the Good Friday Agreement and resulting
   joint commission recommendations, the name of the regional police force was changed from The Royal
   Ulster Constabulary (RUC) to the Northern Ireland Police Service (NIPS), the former sounding more British
   imperial and the latter more neutral. See e.g., Clive Walker, The Patten Report and Post-Sovereignty Policing in
   Northern Ireland, in ASPECTS OF THE BELFAST AGREEMENT 142, 155–56 (Wilford ed., 2001).
14
   Differences between Protestants and Catholics in Northern Ireland are not so much religious as political and
   national. Protestants, mostly of Scottish and English heritage, see themselves as British and mostly want to
   maintain their region’s place within The United Kingdom. Catholics see themselves as Irish and tend to want


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Two additional factors reinforce Brexit’s tendency to detach Northern Ireland from the
UK and join it to the Irish Republic.
           First, the recent unprecedented plurality victory of Sinn Fein in Irish elections
gives power to a party (whose genesis was the political wing of the Irish Republican
Army)15 which is likely to be more demanding of immediate reunification of Ireland than
have been the duopolist Fine Gael and Fianna Fail centrist parties.16
           Second, demographics have shifted substantially. Catholics are probably now a
plurality in Northern Ireland, outnumbering Protestants for the first time.17 When
Ulster was split from the newly independent Irish Free State (precursor to the Republic)
in 1921, Protestants in the northern six counties had a two-to-one majority.18 By the
time of the Good Friday Agreement, Catholics made up about 40% of the population.19
Recent estimates now give Catholics the demographic edge.20
           These three factors taken together — Brexit, Sinn Fein and demographics —
portend a future united Ireland and a shrunken UK.21 Probably not a result sought by
Boris Johnson and the Brexiteers.




   their region to unite with the Republic of Ireland. They also see themselves as historically discriminated
   against by the Protestants who have dominated Northern Ireland politically and economically for centuries.
15
   Is Sinn Fein Now a Normal Political Party?, ECONOMIST (Mar. 5, 2020), https://www.economist.com/europe/202
   0/03/05/is-sinn-fein-now-a-normal-political-party (last visited Apr. 15, 2020); see also Paul Arthur &
   Kimberly Cowell-Meyers, Sinn Fein, in ENCYCLOPAEDIA BRITANNICA (Feb. 14, 2020), https://www.britannica.co
   m/topic/Sinn-Fein.
16
   These two centrist parties have alternated power in the Republic ever since the 1930s, with their differences
   less found in policy than in the mists of history — related to the civil war fought in the South over acceptance
   or rejection of the treaty with Britain that divided Ireland and created the Irish Free State. Sinn Fein today
   occupies a political space to the left of both. All three purport to want a united Ireland, but Sinn Fein is
   the only one likely to push the issue hard. Irish Unification is Becoming Likelier, ECONOMIST (Feb. 13, 2020),
   https://www.economist.com/leaders/2020/02/13/irish-unification-is-becoming-likelier.
17
   Is Some Revelation at Hand? Brexit and Sinn Fein’s Success Boost Talk of Irish Unification, ECONOMIST (Feb.
   13, 2020), https://www.economist.com/briefing/2020/02/13/brexit-and-sinn-feins-success-boost-talk-of-
   irish-unification [hereinafter Is Some Revelation at Hand?].
18
   Wallenfeldt, supra note 12.
19
   In comparison, Protestants numbered closer to 45% of the population in the 2001 Northern
   Ireland census; see, e.g., Religion KS07c (NI), NORTHERN IRELAND STATISTICS AND RESEARCH AGENCY,
   https://www.ninis2.nisra.gov.uk/public/Theme.aspx?themeNumber=135&themeName=Census+2001.
   (In the Subset field, select “Ethnicity, Identity, Language and Religion”; in the Geography field, select “NI”;
   in the Year field, select “2001”; click Apply) (last visited Apr. 5, 2020).
20
   Gareth Gordon, Catholic Majority Possible, in NI by 2021, BBC (Apr. 19, 2018), https://www.bbc.com/news/uk-
   northern-ireland-43823506.
21
   Is Some Revelation at Hand?, supra note 17.


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        BREXIT, THE MISREPRESENTATION OF DEMOCRACY, AND THE ROCK OF GIBRALTAR


       2. INTERGENERATIONAL DEMOCRACY

The referendum of 2016 proved only that on a single day in June, a transient bare
majority (51.9%) of that day’s voters wanted to leave the European Union. Maybe it
proved even less than that.                  Because (rather than caring about severing ties with
Brussels) some of that 52%, in fact, may have been protesting about immigration, or
economic woes, or the displacement of beer culture by wine culture among the London
elite, etc.22 Furthermore, false campaign claims and Russian meddling likely swelled the
“Leave” vote.23 In any event, a very bare majority at most, on that single day in June. But
this thin and transient majority has undone the will and work of generations.
           Millions of British citizens have contributed many millions of hours and energy
and Pounds Sterling over the last half-century in the complex process of integrating the
UK into the European Union. Laws were changed, industrial and commercial standards
were harmonized, people were schooled in the arcane processes and institutions of
Europe.24
           But the benefits of EU membership more than repaid such effort. Barrier-free
access to the largest economy in the world.25 Free movement of British labor and capital
into a market of 400 million people, as well as free access to needed workers and small
entrepreneurs from that market (better food in London bistros).26 A major share in the
powerful voice of the EU in world affairs, particularly economic matters. A foundation

22
   See George Friedman & John Mauldin, 3 Reasons Brits Voted for Brexit, Forbes (July 5, 2016),
   https://www.forbes.com/sites/johnmauldin/2016/07/05/3-reasons-brits-voted-for-brexit/#3cf3a33e1f9d.
23
   Jane Mayer, New Evidence Emerges of Steve Bannon and Cambridge Analytica’s Role in Brexit, NEW YORKER
   (Nov. 18, 2018), https://www.newyorker.com/news/news-desk/new-evidence-emerges-of-steve-bannon-
   and-cambridge-analyticas-role-in-brexit; Mark Townsend & Carol Cadwalladr, Emails Reveal Arron Banks’
   Links to Steve Bannon in Quest for Campaign Cash, GUARDIAN (Nov. 17, 2018), https://www.theguardian.com/uk-
   news/2018/nov/17/arron-banks-emails-steve-bannon-brexit-campaign-funds; Manuel Roig-Franzia et al.,
   How the ‘Bad Boys of Brexit’ Forged Ties with Russia and the Trump Campaign — And Came Under Investigators’
   Scrutiny, WASH. POST (Jun. 28, 2018), https://www.washingtonpost.com/politics/how-the-bad-boys-of-
   brexit-forged-ties-with-russia-and-the-trump-campaign–and-came-under-investigators-scrutiny/2018/06
   /28/6e3a5e9c-7656-11e8-b4b7-308400242c2e_story.html.
24
   More than 50,000 EU laws introduced in the UK over last 25 years highlights scale of challenge facing lawmakers following
   ‘Brexit’, Thomson Reuters (Mar. 27, 2017), https://www.thomsonreuters.com/en/press-releases/2017/marc
   h/eu-laws-introduced-in-the-uk-highlights-scale-of-challenge-facing-lawmakers-following-brexit.html.
25
   See Ottavio Marzocchi, Free Movement of Persons, European Parliament: Fact Sheets on the European
   Union (Feb. 2020), https://www.europarl.europa.eu/factsheets/en/sheet/147/free-movement-of-persons
   (“While the Schengen area is widely regarded as one of the primary achievements of the European
   Union, it has recently been placed under considerable strain by the unprecedented influx of refugees
   and migrants into the EU.”); see also EU Position in World Trade, European Commission (Feb. 18, 2019),
   https://ec.europa.eu/trade/policy/eu-position-in-world-trade/.
26
   See UK and Non-UK People in the Labour Market: February 2020, Office for Nat’l Statistics (Feb. 18, 2020),
   https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/ar
   ticles/ukandnonukpeopleinthelabourmarket/february2020; see generally Susanna Kraatz, Free Movement of
   Workers, European Parliament (Dec. 23, 2016), https://www.europarl.europa.eu/factsheets/en/sheet/41/fr
   ee-movement-of-workers.


                                                            214
2020]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                 [Vol: 5 :1


upon which London’s expertise in finance and other professional services enables the UK
to “punch above its weight” globally.27 And a shared identity with other Europeans,
particularly appreciated by young peripatetic Brits. Future generations of Britons should
be heirs to all these advantages, but they will not be as Brexit goes forward. A transient
bare majority on a single day undoes the work of two generations past and the rightful
expectations of generations to come. Democracy should not merely reflect the moment.
It should reflect the interests of past and future stakeholders as well.
           Most young people voted to remain.28 Those younger than the voting age would
likely share this sentiment. While living in Spain in the 1990s, I was struck by the
Europeanness of young people in the EU’s Erasmus student exchange program,29 including
Britons.     They reveled in their cosmopolitan and mobile life — a pan-continental
moveable feast of young Dutch, French, Irish, Italians, Spaniards, English, Scots, etc.
Brexit denies to future young Britons the chance to fully partake of this feast — both its
cultural joys and its economic opportunities.30 Such denial surely goes against their will.




      3. A CORRUPT AND XENOPHOBIC REFERENDUM

This essay principally deals with the constitutional deficiencies of the June 2016 referendum
and the mischaracterization of its result to thwart long-term shared democracy. However,
we should note the referendum’s internal weaknesses. Such flaws reinforce the unwisdom
of allowing that single vote to rule British national policy for generations.
           Other writers and investigators have documented both the procedural
anti-democratic flaws in the June 2016 vote (chief among them, Russian meddling), as
well as the substantive flaws (chief of those, xenophobic rhetoric bordering on hate
speech).31 Such problems support my constitutional argument, but are not necessary to
it. Even a good referendum (with such a slim majority) should not be the principal basis
of sweeping international and intergenerational change — less so, a bad referendum.



27
   See MARK YEANDLE & MARK WARDLE, THE GLOBAL FINANCIAL CENTRES INDEX 26 (2019).
28
   EU Referendum: The Results in Maps and Charts, BBC (June 24, 2016), https://www.bbc.com/news/uk-politics-
   36616028.
29
   Erasmus is the EU’s program to support education, training, youth and sport in Europe. University-age
   students from one member state may study in another EU state with the EU financially supporting the
   exchange. See What is Erasmus+?, Eur. Comm.: Erasmus+, https://ec.europa.eu/programmes/erasmus-
   plus/about_en.
30
    Id.
31
    ICCPR, supra note 1, at art. 20; Norwood v. United Kingdom (No. 23131/03), 2004-XI Eur. Ct. H.R. 730.


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       BREXIT, THE MISREPRESENTATION OF DEMOCRACY, AND THE ROCK OF GIBRALTAR


     3.1. CORRUPTED PROCESS — DARK MONEY AND RUSSIAN INFLUENCE

Putin’s Russia stood to benefit from a vote for Brexit, just as it did from the election of
Donald Trump. Both weakened the Western Alliance, a goal dear to Putin’s global strategy.
Cambridge Analytica, Steve Bannon, the Giuliani law firm, and related actors had their
fingers in both pies. The largest individual bankroller of the “Leave” campaign, Arron
Banks, met with Russian operatives on a number of occasions in 2015–16. He reportedly
also met with Trump’s staff at Trump Towers during this period.32 Press, government
and academic reports provide extensive further examples of Russian-initiated corruptive
efforts during the Brexit campaign.33



     3.2.       CORRUPTED SUBSTANCE — XENOPHOBIA, ANTI-IMMIGRANT
     PROPAGANDA

Undertones of xenophobia have for decades pervaded British populist criticism of the
European Union.34 However, such close-to-racist noise grew louder during the Brexit
campaign of 2015–16, reaching a crescendo in the final weeks before the June 2016
vote.35 Brexiteers made a conscious decision to play on the alienation and anxieties
within the middle and working classes, to blame the Other for their (often otherwise
legitimate) economic and social grievances, and to blame the EU for the perceived

32
   Roig-Franzia et al., supra note 23; Carol Cadwalladr & Peter Jukes, Revealed: Leave.EU Campaign Met
   Russian Officials as Many as 11 Times, GUARDIAN (July 8, 2018), https://www.theguardian.com/uk-
   news/2018/jul/08/revealed-leaveeu-campaign-met-russian-officials-as-many-as-11-times;
   Dan Sabbagh, Arron Banks Tells MPs: I Have No Business Interests in Russia, GUARDIAN (June 12, 2018),
   https://www.theguardian.com/politics/2018/jun/12/arron-banks-tells-mps-i-have-no-business-interests-
   in-russia; Email Trail Shows How Arron Banks and Andy Wigmore Were Cultivated, SUNDAY TIMES (June. 10, 2018),
   https://www.thetimes.co.uk/edition/news/the-email-trail-how-arron-banks-and-andy-wigmore-were-
   cultivated-fg7tjd87l.
33
   Staff of S. Comm. on Foreign Relations, 115th Cong., Putin’s Asymmetric Assault on Democracy in Russia
   and Europe: Implications for U.S. National Security 115–21 (Comm. Print 2018);
   See also David D. Kirkpatrick, Signs of Russian Meddling in Brexit Referendum, N.Y. Times (Nov. 15, 2017),
   https://www.nytimes.com/2017/11/15/world/europe/russia-brexit-twitter-facebook.html. Notably, Boris
   Johnson refused to release the UK’s report prior to the Parliamentary elections. Despite authorizing the
   report’s release in December 2019, it has yet to be published. Daniel Kraemer, Russia Report: When Can We
   Expect It to be Published?, BBC (Feb. 7, 2020), https://www.bbc.com/news/uk-politics-51417880.
34
   See Rob Merrick, Ukip: A Timeline of the Party’s Turbulent History, INDEPENDENT (Sept. 29, 2017, 5:07
   PM),        https://www.independent.co.uk/news/uk/politics/ukip-timeline-party-westminster-alan-sked-
   nigel-farage-conference-key-events-brexit-leadership-a7974606.html;         David Wearing, Racism and
   xenophobia are resurgent in the UK, and the centre-left is partly to blame, OPENDEMOCRACY (July 11, 2016),
   https://www.opendemocracy.net/en/opendemocracyuk/racism-and-xenophobia-are-resurgent-in-uk-
   and-centre-left-is-partly-to-blame/; Zack Beauchamp, Brexit isn’t about economics. It’s about xenophobia, Vox
   (Jun. 24, 2016, 7:53 AM), https://www.vox.com/2016/6/23/12005814/brexit-eu-referendum-immigrants.
35
   See Adam Taylor, The Uncomfortable Question: Was the Brexit Vote Based on Racism?, WASH. POST
   (Jun. 25, 2016), https://www.washingtonpost.com/news/worldviews/wp/2016/06/25/the-uncomfortable-
   question-was-the-brexit-vote-based-on-racism/.


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intrusion of the Other. No matter that many such immigrants contributed heavily and
healthily to British society and that many other immigrants (particularly the
undocumented, often un-white) would be unaffected by the breaking of EU bonds.
           However, these internal flaws of the June 2016 Referendum do not form the heart
of this article. Journalists and researchers have already documented these flaws in detail,
beyond the scope of the present essay. This essay merely references such flaws to reinforce
the folly of accepting the referendum as the voice of the people.




       4. VOTE AGAIN

By 2017–18, an argument for a second referendum seemed strong. A majority in the UK
had come to oppose Brexit by that time.                          Those flaws of foreign meddling and
xenophobia factually particular to the 2016 Brexit referendum, as well as the profound
structural deficits, at the heart of this essay, regarding intercommunal and
intergenerational democracy, further supported a new poll. Polls also reflected the
increasing concern regarding the real economic consequences of Brexit. Some of those
who had voted for Brexit now realized the toll that such a departure from Europe would
take on their pocketbooks.36 However, in a flourish of political jujitsu, Boris Johnson
delivered an election which he styled as a second referendum on Brexit, but which clearly
was not. Such a slight-of-hand was the Parliamentary vote in December 2019.37
           The December 2019 vote did not provide a fair chance to revisit Brexit. It was not
the second referendum that Boris Johnson claimed it to be. His get-it-done-already
sloganeering38 posed it as such. That Parliamentary election did not give voters the
means to use such an electoral poll as a new plebiscite on Brexit. This failure of the


36
   See Jen Kirby, Brexit will hurt the UK’s economy no matter what — says the government’s own analysis, Vox
   (Nov. 28, 2018, 7:50 PM), https://www.vox.com/2018/11/28/18116763/brexit-economy-bad-deal-no-deal;
   Iain Begg & Fabian Mushövel, The economic impact of Brexit: jobs, growth and the public finances, LSE EUR. INST.
   (2016), https://www.lse.ac.uk/europeanInstitute/LSE-Commission/Hearing-11—The-impact-of-Brexit-on-
   jobs-and-economic-growth-sumary.pdf (last visited Apr. 17, 2020).
37
   See, e.g., William James & Andrew MacAskill, Factbox: How Does UK PM Johnson Call an Early Election?, REUTERS
   (Oct. 24, 2019),https://www.reuters.com/article/us-britain-eu-election-factbox/factbox-how-does-uk-pm-
   johnson-call-an-early-election-idUSKBN1X32BL; Jason Douglas, Why Boris Johnson Might Call an Election, and
   How He Could Get There, WALL ST. J. (Sept. 3, 2019),https://www.wsj.com/articles/why-boris-johnson-might-
   call-an-election-and-how-he-could-get-there-11567515347.
38
   See generally Karla Adam, ’Get Brexit done’: Boris Johnson’s Effective but Misleading Slogan in the British Election,
   WASH. POST (Dec. 12, 2019), https://www.washingtonpost.com/world/europe/get-brexit-done-boris-
   johnsons-effective-but-misleading-slogan-in-the-uk-election/2019/12/12/ec926baa-1c62-11ea-977a-
   15a6710ed6da_story.html.


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Parliamentary vote to be a true second Brexit referendum was due to the nature of the
British Parliamentary electoral system and to the nature of British politics.
           The December voters had no real remain option available because neither of the
two major parties — Conservative or Labour — offered such an option. And of the two
minor parties, both anti-Brexit, one (the Liberals) was not viable because of Britain’s first-
past-the-post electoral system,39 and one, the pro-remain Scottish National Party (SNP)
only campaigned regionally for about 9% of Parliamentary seats — almost all of which it
won (validating the Scots’ self-determination argument made above).
           The Brexit referendum in June 2016 revealed splits in both major UK parties.
Divided factions in each of the Conservative (Tory) and Labour parties supported and
opposed Brexit. 58% of Tories and 37% of Labour party members voted for Brexit in that
referendum.40 Thus, the traditional divide between Labour voters on the left and Tory
voters on the right broke down with the Brexit referendum in 2016. There seemed to be
more of a populist-versus-cosmopolitan split, akin to the 2016 US presidential election,
which a few months later would put Donald Trump in office. On the other hand, among
Liberal Party members, the Remain vote dominated substantially.41 That was also the
case among voters loyal to the regional parties in Scotland and Northern Ireland.42
Probably a majority of Tory Members of Parliament (MPs) sitting as of June 2016 opposed
Brexit, in contrast to their constituents.43 However, a number of circumstances caused
the anti-Brexit Conservative majority to disappear.                       After Prime Minister Cameron
resigned in the wake of his ill-called Brexit referendum (which he had initiated with the
expectation that his anti-Brexit sentiments would be vindicated), Theresa May took the
helm of the Tory party. Thus, without a new general election, May became Prime
Minister, as leader of the Parliamentary majority. Although she had originally opposed
Brexit, once in power as head of the Conservatives, she changed position and supported
it. Her expressed reason for the change was that “the people had spoken.”                        44   It is hard to

39
   A first-past-the-post parliamentary system awards a seat in each district to that candidate with a plurality of
   the vote. This contrasts to a proportional representation system, where a party receives a number of seats
   corresponding to its national percentage of the popular vote. It also contrasts to that variant of a district-by-
   district system, where a run-off election is held when there is not a 50%-plus-one majority for any candidate
   in that district. A first-past-the-post system favors two dominant parties and disfavors third parties.
40
   See Statista Research Department, Brexit Votes in the United Kingdom by Political Affiliation 2016, STATISTA
   (Jun. 24, 2016), https://www.statista.com/statistics/518474/eu-referendum-voting-intention-by-political-
   affiliation/.
41
   Id.
42
   See id.
43
   See, e.g., EU vote: Where the cabinet and other MPs stand, BBC (Jun. 22, 2016), https://www.bbc.com/news/uk-
   politics-eu-referendum-35616946 (showing 185 Conservative MPs declared a remain stance, compared to 138
   declaring a leave stance).
44
   BBC News, Theresa May (FULL) interview Andrew Marr (02/10/2016) - BBC News, YOUTUBE (Oct. 2, 2016),
   https://www.youtube.com/watch?v=4b0kULuS5o8 (“The British people have determined that we will leave
   the European Union . . . . The people have spoken, we will deliver on that.”).

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know whether she sincerely believed this, or whether she felt her new stance on Brexit
to be politically expedient. For reasons discussed above, and central to this essay, that
position was philosophically wrong-headed. The people had not spoken. At least not
clearly and fully on the question of separating from Europe. Only some of them had
spoken for leaving Europe, on one day in June, in a corrupted poll. And with Scots and
Irish dissenting.
            Nonetheless, May pushed Brexit but soon realized that Parliament opposed her
— including substantial elements of her own House of Commons majority. She therefore
called a Parliamentary election in April 2017,45 hoping to bolster her majority and get
Brexit through the legislature. She was mistaken in that tactic. The Conservatives lost
seats in that election. In order to form a governing majority in Parliament, she had to
ally herself with the Democratic Unionist Party (DUP) MPs representing Northern
Ireland.      The DUP is a Protestant-dominated party dedicated to a continued union
between Ulster and Britain and vehemently against unification with the Irish Republic.
Such an alliance made May’s task of pushing Brexit through the legislature harder still,
since the DUP was adamantly opposed to any tariff and customs checks between Britain
and Northern Ireland. However, the DUP’s position in that regard left only a possibility,
if Brexit was to go forward, of re-establishing customs checks between the Irish Republic
(an EU state) and Ulster. The re-establishment of a hard border within the island of
Ireland was totally unacceptable to the Republic of Ireland and to the EU of which it was
a member.
            Economists and financial experts broadly agreed that for Britain to leave the
European Union without truly dire consequences to business, workers and citizens, an
exit deal needed to be negotiated with The EU. However, a number of sticking points
made such a deal difficult. First, what would Britain pay the EU to leave, reflecting
obligations for future European projects and programs that Britain had already
committed to as a member. Second, what would the nature of the trade relationship
between the UK and the EU look like after Brexit? Britain wanted it to look pretty much
the same from the point of view of tariffs on goods and trade in services. EU members
did not want Britain to have its cake and eat it too — that is, leave the Union and its
obligations thereto, but still enjoy the advantages of a free trade zone. Third, and most
problematic, was the question of the Irish border. The Conservative government could
not agree to customs checks between Northern Ireland and the rest of Britain,
particularly because of its dependence on DUP votes in the House of Commons.

45
     See General Election 2017: Why did Theresa May Call an Election?,   BBC   (Jun.   9,   2017),
     https://www.bbc.com/news/election-2017-40210957.


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       BREXIT, THE MISREPRESENTATION OF DEMOCRACY, AND THE ROCK OF GIBRALTAR


On the other hand, European Union negotiators were firm in their resistance to any
customs checks between Northern Ireland and the Republic of Ireland. To be out of the
European Union certainly meant border checks for the passage of goods in one of those
two locations.        While May’s negotiators tried to finesse this last issue in the draft
agreements for exiting the EU, Parliament was unconvinced, suspicious that she was
agreeing to a customs border within the UK between the islands of Britain and Northern
Ireland.46
           After losing three votes in Parliament on her exit plan negotiated with the EU,
May resigned. Boris Johnson took over as leader of the Conservative Party (and therefore
as Prime Minister without any popular vote). When it became clear that, like Mrs. May,
Johnson would not be able to push Brexit through Parliament with his bare Tory
plurality, only governing with the participation of the DUP, he called elections for
December 2019.           In the process of consolidating his power among the Tories he
successfully purged the party of most of the MPs who still opposed Brexit — either by
kicking them out or convincing them to accept Brexit. By the time of the December 2019
Parliamentary election, the Conservative Party, which had been divided regarding
Brexit, campaigned as a unified Leave party.
           In contrast, in the election of 2019, the Labour Party was still split over Brexit (as
it had been in the 2016 referendum), led by the unpopular Jeremy Corbyn, riddled with
the charges of antisemitism47 and obfuscational48 in its stance toward a new referendum
on Brexit. The London progressives in the party were mostly Remainers, while the Rust
Belt northern workers were mostly pro-Brexit. Corbyn pleased neither. He lost worker
constituencies in the North to the Conservative Party for the first time in recent history.
They defected to the Tories, reversing decades of animosity of working people toward
the Conservative Party. Populist Johnson, though a Tory, at least (in their minds) showed
respect (lacking in Corbyn) for their 2016 vote to leave Europe, by which they blamed
the continent for immigration, unemployment and other real and imagined wrongs — for
which Europe was not really responsible.



46
   See, e.g., Irish Backstop, INSTITUTE FOR GOVERNMENT, https://www.instituteforgovernment.org.uk/explainers/i
   rish-backstop (last updated Feb. 24, 2020); John Campbell, Brexit: What are the Backstop Options?, BBC (Oct. 16,
   2019), https://www.bbc.com/news/uk-northern-ireland-politics-44615404; Richard Pérez-Peña, What is the
   Irish Backstop, and Why is it Holding Up Brexit?, N.Y. TIMES (Jan. 30, 2019), https://www.nytimes.com/2019/01
   /30/world/europe/irish-backstop-brexit.html.
47
   See generally JERUSALEM POST (Apr. 6, 2020).
48
   During the campaign leading up to the December 2019 Parliamentary elections, Corbyn refused to be pinned
   down on whether he favored a new referendum on Brexit, undoubtedly knowing that his base was divided on
   the issue. He tried to deflect the debate to charges that the Tories were intent on gutting the National Health
   Service. Obviously, such a tactic of deflection did not work. Labour suffered its worst defeat in decades.


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In any event, by the December 2019 Parliamentary vote, the Labour Party was neither a
remain party nor a leave party. It therefore presented no electoral option for those Britons
who wanted to stay in the EU.
             The Liberal Party would have seemed to have represented a true remain
alternative in December 2019 to the then Brexit-converted Conservative party and the
obfuscational and Brexit-non-committal Labour Party. For decades, the Liberal Party has
been the only Britain-wide third party alternative to Labour and the Tories.                                 It
campaigned in 2019 on an explicit platform for staying in the EU. Unfortunately for
Remainers, it was not an option that could possibly lead to either electoral victory or to
staying within Europe.                Britain’s first-past-the-post electoral system made this
impossible. For decades the Liberals have collected between 10% and 20% of the popular
vote in British elections but generally only claimed a much smaller percentage of
Parliamentary seats.              Rather than having proportional representation as many
Parliamentary democracies do, Britain has a system under which in any given district
the candidate with the plurality goes to Parliament. So British voters knew that even
though the Liberals offered a remain option, they did not offer a viable electoral choice.
Hence, even though probably more than half of the voters in the UK supported
remaining in Europe, in the December 2019 Parliamentary elections they had no one to
vote for (except in Scotland). Therefore, those elections were not, as Boris Johnson
claimed them to be, a second referendum on Brexit, one which according to Johnson
confirmed the results of the 2016 Brexit vote.
             Put simply, in the December 2019 Parliamentary elections, Remainers (although
probably a majority) had no one to vote for.49
             In the only location within the UK where a party with viable electability
campaigned on a remain platform — Scotland — the Remain party, that is the SNP, won
overwhelmingly, collecting almost all Scottish seats in the Westminster Parliament.
             Tory opponents of Brexit had disappeared.                   Labour was split, ill-led and
obfuscational.           Liberals were impeded by first-past-the-post (and a nice, but
inexperienced and uncharismatic leader). There was no electorally viable remain party.
Thus, the December 2019 Parliamentary vote was not a second referendum on Brexit and
could not have been such.
             In seeking a second referendum, opponents of Brexit did not effectively argue the
democratic defects in the June 2016 referendum, identified above, but seemed cowed by

49
     The author spent Parliamentary election week, December 9–15, 2019, in Britain. Many conversations with
     Britons that week, as well as local exposure to UK news media during the days prior to and after the vote,
     have contributed to his conclusions in this essay.


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       BREXIT, THE MISREPRESENTATION OF DEMOCRACY, AND THE ROCK OF GIBRALTAR


the “people have spoken” rhetoric of the “Leavers.” Some, like Theresa May, not only were
cowed by such rhetoric, but switched sides, becoming Leavers themselves.




      5. COME AGAIN? (REENTRY AND “THE ROCK”)

Some Remainers might continue to underestimate the tragedy of the misrepresented June
2016 referendum and assume that re-entry into the European Union can occur easily, in
the hope that Britons continue to sour their attitude toward Brexit and a new government
eventually comes into power. They are profoundly mistaken.
          Article 49 of the Treaty on European Union, as amended by the Treaty of Lisbon,
governs the admission of new states to the EU.50 Article 50 of the Treaty of the European
Union, first introduced by the Lisbon Treaty, makes clear that any UK re-entry would be
subject to the demanding process of Article 49.51 Confusingly, statements from other EU
officials blithely held out a false promise of easy re-entry.52
          It would not be easy. First, law and regulation that will have fallen out of sync
with European rules would have to be re-promulgated by Parliament or the British
executive, as jurisdiction (not always clear) dictates.53 Second, the return to certain
favorable arrangements, such as the large EU budget rebate to Britain, might not be




50
   Consolidated Version of the Treaty on European Union art. 49, June 7, 2016, 2016 O.J. (C 202) 44 [hereinafter
   TEU].
                 The applicant State shall address its application to the Council, which shall act
                 unanimously after consulting the Commission and after receiving the consent of the
                 European Parliament, which shall act by a majority of its component members.
                 The conditions of eligibility agreed upon by the European Council shall be taken
                 into account. The conditions of admission and the adjustments to the Treaties on
                 which the Union is founded, which such admission entails, shall be the subject of
                 an agreement between the Member States and the applicant State. This agreement
                 shall be submitted for ratification by all the contracting States in accordance with
                 their respective constitutional requirements (emphasis added) .
   See also Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European
   Community art. 1(57), Dec. 13, 2007, 2007 O.J. (C 306) 40.
51
   See, e.g., TEU, supra note 50, art. 50(5).
52
   Notably, Frans Timmermans, Executive Vice-President of the European Commission, penned a “love letter”
   to Britain stating that the UK “will always be welcome to come back” to the EU, suggesting re-entry to the
   UK may be easy. See also Frans Timmermans, My love letter to Britain: family ties can never really be severed,
   GUARDIAN (Dec. 26, 2019, 1:00 PM), https://www.theguardian.com/commentisfree/2019/dec/26/my-love-
   letter-to-britain-family-ties.
53
   See Anthony Salamone, Membership 2.0: what the UK rejoining the EU would involve, LSE BLOGS (Jan. 23,
   2020), https://blogs.lse.ac.uk/brexit/2020/01/23/membership-2-0-what-the-uk-rejoining-the-eu-would-
   involve/.


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available were the UK to seek readmission, hat-in-hand. A multi-billion Euro penalty to
the prodigal state.54
          Third (and most profoundly), EU law requires unanimous consent of all its member
states for admission of a new member.55 And, presumably, readmission.56 That’s twenty
seven “yea” votes.57 And no “nays”.
          Any EU member state with a gripe against Britain would have significant
leverage to wrangle large concessions or to block reentry. Greece wants the Elgin
Marbles back. It has demanded them for decades to deaf British ears.58 It prevented
progress on Macedonia pursuing EU and NATO membership until Macedonia changed its
very name (to North Macedonia). So, it knows how to use a veto to apply the brakes in
unanimity-based fora.
          Perhaps Britain might be willing to return some Greek statues to get back into the
EU. But Spain wants Gibraltar back.59 A rock considerably more massive and strategic than
the Parthenon marbles pilfered by Lord Elgin from the Acropolis.60 One historian writes,

            The concessions of territory made in 1713 were painful ones. Gibraltar had
            been captured in August 1704 by an Anglo-Dutch expeditionary force, and its
            loss was a bitter pill that the Spanish government always refused to accept,
            for it wounded national dignity . . . . On the other hand the British had spent
            effort and lives in capturing the town and later in resisting the various sieges
            that took place during the war . . . . Gibraltar became a symbol of victory that
            no British government would contemplate relinquishing.61



54
   The UK rebate (or UK correction) was a financial mechanism that reduced the UK’s contribution to the EU
   budget in effect since 1985. It was a complex calculation which equated to a reduction of approximately
   66% of the UK’s net contribution — the amount paid by the UK into the EU budget less receipts from the
   EU budget. See generally Iain Begg, What if Britain rejoined the EU? Breaking up may be less hard than making
   up, LSE BLOGS (Sept. 25, 2018), https://blogs.lse.ac.uk/brexit/2018/09/25/what-if-britain-rejoined-the-eu-
   breaking-up-may-be-less-hard-than-making-up/.
55
   See, e.g., TEU, supra note 50, art. 49; see also Unanimity, COUNCIL OF THE EU (last reviewed Jan. 28, 2020),
   https://www.consilium.europa.eu/en/council-eu/voting-system/unanimity/.
56
   See, e.g., TEU, supra note 50, art. 50.
57
   Countries, EUROPEAN UNION: ABOUT THE EU, https://europa.eu/european-union/about-eu/countries_en.
58
   The Parthenon Marbles, also known as the Elgin Marbles, are a collection of Classical Greek marble
   sculptures made by the architect and sculptor Phidias and his assistants. They were originally part of the
   temple of the Parthenon. They were acquired by Lord Elgin in the early 19th Century. See Elgin Marbles,
   Encycl. Britannica (Feb. 19, 2019), https://www.britannica.com/topic/Elgin-Marbles (last visited Apr. 3,
   2020).
59
   After the War of Spanish Succession, Spain ceded Gibraltar to Britain in 1713 under the Treaty of Utrecht.
   See T.W., Why is Gibraltar a British Territory?, ECONOMIST (Aug. 8, 2013), https://www.economist.com/the-
   economist-explains/2013/08/07/why-is-gibraltar-a-british-territory.
60
   Gibraltar is colloquially referred to as “The Rock” — got its nickname before the wrestler.
61
   HENRY KAMEN, EMPIRE: HOW SPAIN BECAME A WORLD POWER 1492-1763, at 447 (2003).


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        BREXIT, THE MISREPRESENTATION OF DEMOCRACY, AND THE ROCK OF GIBRALTAR


Beyond the substantial loss to the British military62 and the insult to the British ego,
such a territorial cession would raise yet another self-determination issue. The people of
Gibraltar do not want to be part of the Spanish realm.63 Their overwhelming remain vote
(even more lopsided than the Scottish rejection of Brexit in the same 2016 referendum)
partly reflected this preference.             Just as Brexit would re-invigorate nationalism in
English, Scots and Irish, so it might with the Spaniards, reminding them that a tip of
their peninsula, a thousand miles from London, but only a hundred from Sevilla was still
in English hands.          Again, as with Scotland and Ireland, the mitigating European
commonality would be gone. All this scared Gibraltar’s voters. So, Gibraltar’s popular
claims to self-determination64 would bump heads with Spanish arguments for Iberian
territorial sovereignty — oh, the aggravation Brexit hath wrought.



     5.1. SOVEREIGNTY OVER GIBRALTAR AND INTERNATIONAL LAW

The international law arguments concerning Gibraltar leave us with equivocal
conclusions. On the one hand, the UK and Gibraltar itself (to the extent it is a separate
international entity) have treaty law and the principle of self-determination on their
side.    The Treaty of Utrecht of 1715 clearly cedes Gibraltar from Spain to Britain,
confirming the British occupation of the Peninsula in 1704. Treaties in 1729 Seville and
1783 Paris — the same treaty that recognized the independence of the United States —
confirmed such British sovereignty over Gibraltar. Furthermore, in more recent times,
the people of Gibraltar have voted twice overwhelmingly in 1967 and 2002 not to subject
themselves to Spanish rule. So Britain and the Gibraltarians argue that any return of the
territory to Spain without the consent of its residents would violate the law of
self-determination. These arguments would seem to be quite weighty. Explicit treaty law
such as Utrecht trumps all other sources of law except perhaps jus cogens and specific
provisions of the UN Charter. The only jus cogens applicable here would seem to be



62
   For centuries, the fortress of Gibraltar has enabled British naval dominance at the strategic narrow straight
   between the Atlantic Ocean and the Mediterranean Sea. See generally Vincente Rodriguez, Gibraltar, in
   ENCYCLOPAEDIA BRITANNICA (2019).
63
                A referendum in Gibraltar in 1967 gave residents a choice of opting either for
                Spanish sovereignty or for continued close association with Britain; the result was
                an overwhelmingly pro-British vote (12,138 votes to 44)…. The status of Gibraltar
                has remained a source of friction between the Spanish and British governments.
                In a nonbinding referendum in 2002 recognized by neither government, 99[%] of
                Gibraltar’s voters rejected joint British-Spanish sovereignty.
   See generally id.
64
   Ironically, Britain used its EU (then EC) veto leverage in 1985 to force Spain to lift its land blockade of
   Gibraltar, in exchange for Spain’s admission to the EC.


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Gibraltarians’ claim for self-determination supporting not competing with British
sovereignty under the Utrecht grant.
          However, Spain puts forth arguments that are far from trivial. It claims that
Gibraltar is a colony and that its occupation by the United Kingdom violates the legal
principle of territorial sovereignty also found in the UN Charter along with that of
self-determination. It argues further that the Gibraltarians are not a people entitled to
self-determination but colonial settlers. United Nations General Assembly resolutions
tend to support the Spanish position.
          From a legal point of view, Britain would seem to have the better of the arguments.
Treaty law certainly trumps General Assembly resolutions, which do not have the status
of binding law but only of recommendations. While General Assembly resolutions may be
considered as evidence of state practice or of opinio juris for the purpose of establishing
international customary law, again treaty law is a superior source of international law
when in conflict with custom. Spain’s argument that the Gibraltarians are settlers and not
people entitled to self-determination seems weak given temporal considerations. They
are the descendants of people that have been on the Peninsula for centuries. If they are
not entitled to self-determination because their distant ancestors were originally settlers
then neither are Australians, Brazilians, Canadians, Americans, or many others entitled
to that basic human right. An unlikely conclusion. On the other hand, the tendency of
political bodies on the international stage to support claims against the legal validity of
even very old European conquests would cut in Spain’s favor (ironically, given its own
colonial history and its continued occupation of its North African enclaves of Melia and
Ceuta).
          Thus, though Britain probably has the stronger argument in international law,
Spain’s argument is not frivolous. Spain could demand the return of Gibraltar without
appearing to flout the law. The unanimity required for an Article 49 admission gives Spain
the power to make this demand.
          England will not both keep Gibraltar and re-enter the EU. And by that time (of
attempted re-entry) we may indeed only be able to speak of England, not Britain — let alone
the United Kingdom.




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