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In
the delimitation of the border between Portugal and Spain 100 landmarks
have not yet been placed, from no. 801 to no. 900.
The two agreements of border definitions in 1864 and 1926 did not delimit
a part of the Alentejo coincident with the Territory of Olivenza, as Portugal
did not recognize Spanish sovereignty on the region and Spain continued
to postpone the restitution of this Portuguese parcel of land.
The Project of the Centre of Studies of Cross-border Architectures, created
in Olivenza in 1995, contains the following elucidatory statement:
«Desde una perspectiva diplomática,
Olivenza resulta ser una materia pendiente entre ambos países, hasta
el punto que la comisión interministerial encarregada de revisar
los límites fronterizos entre ambos países, dejan permanentemente
sobre la mesa la delimitación de los marcos fronterizos que se correspondem
con el término minicipal oliventino.»
So that the Portuguese silence would not be taken as tacit recognition
of the Spanish occupation, the Portuguese diplomacy has periodically reminded
Spain of its rights to recover Olivenza.
Gates of
Alconchel (Olivenza)
Built by Dinis, King of Portugal
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Nullity of the Treaty of Badajoz
France
and Spain had been planning to invade Portugal and to divide it between
the two countries since the end of the Rossilhão campaign (1793-95).
The result of the agreements celebrated between these two countries was
the invasion of Portugal by Spanish troops, assisted by French forces.
After the assault on the Alentejo on May 20th, 1801, the governor of Olivenza
surrendered to the occupying army, without resistance. The governor of
Juromenha also surrendered.
Diplomatically weak and under threat of attack, the Portuguese government
had to yield to the demands of Napoleon Bonaparte and Carlos IV, King of
Spain. The Portuguese government signed the double Treaty of Badajoz of
June 6th and of Madrid of September 29th, 1801.
Besides
submitting to the vexatious French claims, Portugal had to recognize the
Spanish ownership of «Olivenza, its territory
and peoples from the River Guadiana onwards». This river
was now the border between the two countries in that region.
If Spain possessed some valid argument to justify its occupation of the
Territory of Olivenza, it would base it on the Treaty of Badajoz of 1801.
However, this treaty, as well as the Treaty of Madrid of the same year,
lost its legal value; it is considered null and void.
The Treaty of Badajoz was negotiated between the two parties in conflict:
Portugal, as the invaded state; France and Spain, as the invaders.
Putting an end to the negotiations, a double treaty of peace was drafted
that would alternately be signed between Portugal and Spain and Portugal
and France, both being valid as only one treaty, as diplomatically connected
texts. Such is stated in the Preamble of the Treaty:
«Having the Plenipotentiaries of the three belligerent Powers reached
an agreement, they decided to form two Treaties, though they are no more
than one in their essential part, since the guarantee is reciprocal and
none of them will be valid if there is any infraction of any of their Articles.»
Article 4 strengthens the principle of the unicity of the Treaties of Badajoz
and is the ground for the Portuguese claims on their nullity. In this article,
the following is stipulated:
«If there is any infraction in this or another Article, the Treaty
that is now established between the three Powers will be considered null,
according to the principle of mutual guarantee, as expressed in the Articles
of this Treaty.»
The reciprocity of validity or invalidity of the two treaties is clearly
expressed in Article 8 of the French text, when it is stated that ‘toute
infraction à ce Traité será regardée pair le
Premier Consul comme une infraction au Traité actuel’, which means
that any infraction of the Treaty between Portugal and France would constitute
an infraction of the treaty between Portugal and Spain, since both constituted
only one treaty.
There are several reasons for the nullity of the Treaty of Badajoz. Besides
the fact that France did not meet the deadline for its ratification, as
stipulated in Article 9, which led to the signature of the Treaty of Madrid
on September 29th, 1801, the causes of the nullity of the Treaty of Badajoz
are the following:
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Lack of manifestation
of the free will of Portugal
The circumstances in which Portugal signed the Treaty of Badajoz, with
the French and Spanish armies threatening to intensify violent action against
the Portuguese territory, which they had partially occupied, violate the
principle whereby any legal business is only valid if all parties manifest
their free will.
Portugal signed the Treaty of Badajoz not in the exercise of its full freedom,
but coerced into doing it under threat of force.
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Treaty of Fontainbleau
and the violation of Peace
The Treaty of Badajoz of 1801 was a ‘Peace Treaty,’ which is clearly expressed
in its preamble. Article 1 stipulated that:
«There will be peace, friendship
and good correspondence between His Highness the Prince Regent of Portugal
and the Algarves, and His Catholic Majesty El Rei of Hespanha, in the sea
as on land, in all the extension of their Kingdoms and Dominions.»
In spite of having been attacked and invaded by the Spanish-French forces,
for no other reason than the decision to refuse to abandon its alliance
with Great-Britain, Portugal had to accept the Peace in dishonourable and
humiliating circumstances.
In exchange for the acceptance of the Peace, which took place under threat
of bigger retaliation, Portugal assented to the demands of Spain and France,
including the recognition of Spanish ownership of Olivenza.
As stipulated in Article 4, the violation of the Peace implied the nullity
of the Treaty of Badajoz.
This would happen in 1807, when Spain and France signed the Treaty of Fontainbleau,
which determined the division of Portugal into three parts. The two countries
occupied Portugal few months later in order to accomplish this project.
If Spain could claim any right to ownership of the Territory of Olivenza,
it lost it irrevocably, when it annulled, on its responsibility, the only
document of legal value on which it could base its sovereignty on that
small parcel of land in the Alentejo.
As a result of the invasion of Portugal by French and Spanish forces, which
led the Royal Family to transfer the headquarters of the Portuguese Monarchy
to Brazil, D. João, the Prince Regent of Portugal, had a Manifesto
published, dated May 1st, 1808, which considered the Treaties of Badajoz
and Madrid of 1801 ‘null and void’.
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Treaty of Paris
of 1814
On March 31st, 1814 the allied forces entered Paris, compelling Napoleon
to abdicate. The hostilities that resulted from the Napoleonic Wars were
suspended by a convention signed on April 23rd. D. João, Prince
of Portugal, adhered to it on May 8th of the same year.
On May 30th the Treaty of Paris was signed, which annulled the Treaty of
Badajoz and Madrid of 1801.
Additional Article no.3 determined:
«Although the treaties, conventions and acts concluded between the
two powers before the war are in fact annulled due to the state of war,
the contracting parts have deemed it convenient to declare again that the
aforesaid treaties of Badajoz and Madrid in 1801, and the convention signed
in Lisbon in 1804, are null and void for Portugal and France, and that
the two crowns mutually renounce all rights and deny any obligation that
could result from them.»
Although the Treaty of Paris only directly annuls the above-mentioned treaties
as far as France is concerned, the same applies to Spain, since the two
treaties of Badajoz constitute only one, as they indelibly expressed.
From this Additional Article one can also infer the legal doctrine according
to which the state of war that followed the Treaty of Fontainbleau, annulled,
by itself, the Treaties of Badajoz and Madrid of 1801. This confirms the
inexistence of any ground that guarantees Spanish dominion over Olivenza.
Gate of the
Calvário (17th century)
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Determination of the Congress
of Vienna
After Napoleon was defeated, in April of the year 1814, the European powers
tried to reestablish, as far as possible, the order and borders in force
in 1792.
If the Treaty of Paris of May 30th of 1814 was the beginning of the peace
process, the Congress of Vienna, which started on September 27th of the
same year, was an attempt to resolve the many problems that were pending.
Among the questions of greater interest to Portugal there was the problem
of the border of the French Guyana and the restitution of Olivenza.
Spain tried to dissuade the Portuguese diplomacy from presenting the Question
of Olivenza to the Congress of Vienna, with not very consistent promises
of restitution of the territory. Suspecting the Spanish intentions, Portugal
opted to try to decide the problem involving the several countries present
in Vienna.
Trusting that Olivenza might be restituted, the Portuguese diplomacy attempted
to cancel the treaty of alliance between Portugal and England of 1810,
whereby Portugal gave Bissau and Cacheu to Great-Britain, for a period
of 50 years, in exchange for British support to the restitution of Olivenza.
Besides accomplishing this, the Portuguese representatives in the Congress
of Vienna - D. Pedro de Sousa Holstein, D. António Saldanha da Gama
and D. Joaquim Lobo da Silveira - succeeded in having the Portuguese right
to the re-incorporation of Olivenza decreed. Article 105 of the treaty
defined:
«Recognizing the justice of the claims formulated by His Royal Highness,
the Prince Regent of Portugal and Brazil, on the village of Olivenza and
the other territories yielded to Spain by the Treaty of Badajoz of 1801,
and considering the restitution of these objects as one of the adequate
measures to assure the good, full and stable harmony between the two Kingdoms
of the Peninsula, whose conservation in all parts of Europe has been the
constant purpose of their negotiations, the Powers formally pledge to make
the most efficient efforts, by conciliatory means, to restitute the aforesaid
territories to Portugal. And the Powers recognize, as far as it depends
on each one of them, that this must take place as quickly as possible.»
The Spanish Plenipotentiary, D. Pedro Gomes Labrador, refused to sign the
Treaty of Vienna of June 9th, 1815, and registered a protest against several
of the Congress resolutions, including the restitution of Olivenza.
Spain finally accepted this treaty on May 7th, 1817, when Count Fernan
Nuñez signed it, recognizing the Portuguese rights to Olivenza and
committing to its restitution, which has not been fulfilled to this day.
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