The Olivença Issue
On the few occasions when the «Olivença Issue» is a subject of conversation or a topic in the media, it is observed that the matter, besides being seen as less relevant and even laughable, gives rise to significant misunderstandings and is shrouded in profound ignorance. This particularly concerning the legitimacy and relevance of Portuguese sovereignty.
Now, if the legal-diplomatic framework of the «Olivença Issue» continues to cause deep discomfort in Portuguese-Spanish relations (much more than the hypocrisy and caution of diplomatic chancelleries allow to reveal), it is essential that a better understanding and, consequently, better clarification is produced on the subject.
Regarding the attitude that the Portuguese State must adopt, everything results from the fact – usually unknown – that Olivença is, according to our legal order, a part of national territory.
This regardless of the outcome of any international rules, which undoubtedly also endorse the Portuguese position. In fact, the Treaty of Badajoz of 1801, which granted the territory to Spain, was denounced (declared "null and of no force") by the Manifesto of May 1, 1808. By this legislative act, never revoked and fully in force, the assumption of our sovereignty over the territory became a matter of domestic Law, thus necessarily binding.
This, throughout historical developments, has always been enshrined in the portuguese constitutions, including the current one, which absolutely recognizes this assertion, indicating that "Portugal encompasses the territory historically defined on the European continent" (Article 5-1, as noted by our constitutional experts, such as Jorge Miranda, «Manual of Constitutional Law», Gomes Canotilho and Vital Moreira, «Constitution of the Portuguese Republic Annotated»), proclaiming that "the State does not alienate any part of Portuguese territory" (Article 5-3) and establishing that it is a “fundamental task of the State (...) to guarantee national Independence”, (Article 9) “ensure national defense”, and with this, “the integrity of the territory” (Article 273).
Having the Portuguese Constitution taken great care to establish and proclaim in these terms our territorial boundaries and the obligations of the State, it safeguarded Portugal's rights over the territory of Olivença also led to the legal obligation of all organs of sovereignty and their holders, of the entire State and its representatives, from the highest magistrate to the humblest official, to act accordingly. Naturally, this right also binds the ordinary citizen. This means that the organs of sovereignty are obliged to take appropriate measures for the retrocession of Olivença, and it is prohibited for other public institutions and the administration in general to conduct any actions that may potentially weaken the constitutional goal. It also requires Portuguese citizens, as individuals, to raise awareness and advocate for the resolution of this dispute.
It should be noted that the State, over the time that Olivença has been under occupation, has cautiously publicized its formal sovereignty: the statement by the Assembly of the Republic that “de jure, Olivença is part of Portugal”; regular public declarations by the Government stating that “the legal-political doctrine which has been followed regarding the territory of Olivença” remains in place; the separation of Olivença by the Government from the neighboring country's territory when it is included in any Portuguese-Spanish undertaking; the refusal in the International Boundary Commission to demarcate the border between the Caia River and the Cuncos Creek; the non-indication of this same border limit on official maps; the opinion of the Attorney General's Consultative Council, which states that the natives of Olivença have the right to a Portuguese identity card, with the updating and reaffirmation of the traditional Portuguese position with the granting of nationality (Law No. 37/81, of October 3) that has received massive support from the Olivença residents, with more than a thousand applications so far for Portuguese nationality; judicial decisions considering that “the right of the Portuguese State over the Olivença territory is a given in the face of domestic and international law”.
Internationally, the understanding assumed and proclaimed at the Congress of Vienna in 1815 continues to apply. This congress, bringing together all the belligerent powers, including the two Iberian States, ended the Napoleonic Wars and established a new international order. Regarding Olivença, it specifically decided that "The Powers, recognizing the justice of the claims of H.R.H. the Prince Regent of Portugal and Brazil, upon the town of Olivença, and the other territories ceded to Spain by the Treaty of Badajoz of 1801, and viewing the restitution of the same as a measure necessary to insure that perfect and constant harmony between the two kingdoms of the Peninsula, the preservation of which in all parts of Europe, has been the constant object of their arrangements, formally engage to use their utmost endeavours, by amicable means, to procure the retrocession of the said territories, in favour of Portugal. And the Powers declare, as far as depends upon them, that this arrangement shall take place as soon as possible" (Article 105 of the Treaty of Vienna, also signed by Spain).
After the defeat of Napoleonic France's ambitions, Europe gathered at the Congress of Vienna, which opened in September 1814. The major powers were represented there, including England, Austria, Prussia, and Russia, as well as Portugal...More
Find in this section the legislation and international law that legitimize the Portuguese position.More