The Brexit Deal and Gibraltar

Maria Mut Bosque (International University of Catalonia)

On the 25th of November 2018, the EU-27 leaders endorsed the draft Brexit withdrawal agreement and approved the political declaration on the future relationship between the EU and the UK. These texts now need to be passed by the other EU Institutions in order to enter into force, namely the European Parliament and the Council, and – what it is more problematic – they also need the approval of the Westminster Parliament. Therefore, prior to any in-depth analysis, I must register my doubts about whether the texts will get sufficient support of British MPs, or that they will be approved without amendments. On the basis of these considerations, it should be noted that any analysis at this stage will be based on assumptions rather than certainties.

It is no secret that Gibraltar has been one of the most complex issues throughout the Brexit negotiation process. This has led to the issue being addressed in a specific protocol annexed to the withdrawal agreement, which includes the specific arrangements applicable with respect to Gibraltar, particularly during the transition period. Article 182 of the Withdrawal Agreement points out that the Protocol on Gibraltar “form(s) an integral part of this Agreement.” Therefore, both the Agreement and the Protocol are legally binding. This Protocol (pages 495-502 of the document) commits the parties to collaborate in four specific areas: citizens’ rights, tobacco, the environment, and police and customs cooperation, and commits them to conclude a treaty on taxation and the protection of financial interests. In order to implement the commitments, the Protocol itself sets up an ad hoc institutional framework, mainly through coordinating committees. These committees will report to the Specialised Committee on Gibraltar, made up of representatives of the UK and the EU. The Specialised Committee will in turn support the effective implementation of the Protocol and make recommendations to the Joint Committee, the body tasked with the overall implementation of the agreement.

From the above, four points follow. First, the Withdrawal Agreement has a limited duration. It lasts till the end of the transition period, that is, until the 31st of December of 2020, with one possible extension. So, after centuries of disagreement, two years is not a very long period in order to normalise the relationship between Spain and Gibraltar and make an institutional framework of this significance operational. We all know that there have been previous failed attempts to reach a political cooperation agreement. The most recent one was the 2006 Cordoba Agreement, which was terminated in 2011 without significant results. Therefore, a longer-lasting agreement is needed in order to create confidence between the different actors to make them act together in the establishment of a mutually beneficial system of cooperation. Second, the Protocol is written in classical legal terms and it only refers to the parties to the controversy, Spain and the UK, instead of the actors, a more inclusive and wider term, which would also include Gibraltar. In classical international law, only the subjects of international law can be the parties of an international agreement, so only they can acquire international rights and assume international obligations. Undoubtedly, it would have been more convenient for Gibraltar’s interests if the text had included a provision that expressly mentioned the necessity of consulting Gibraltar in the event of the adoption of any agreement between the parties. Third, with the exception of the future obligation to conclude a taxation agreement, the obligations set out in the Protocol are not obligations of result. Generally speaking, all the commitments established in the Protocol are imprecise, so we will have to wait in order to see how cooperation develops and what achievements are made by the parties. And finally, article 184 of the Withdrawal Agreement is the article that has caused the most controversy between Spain, the UK and Gibraltar. This article makes no difference between the UK and any of the European territories for whose external relations the UK is responsible in order to negotiate a future agreement that sets a new framework for EU-UK relations. Spain had advocated for the inclusion of a specific provision in the Withdrawal Agreement or in the Declaration that would allow Spain to have the final say with regard to any future agreement which involved Gibraltar.

Regarding the Political Declaration on future EU-UK relations, this will be replaced by an international agreement after the UK leaves the EU. Therefore, until an Agreement is reached the Declaration is a political document without binding legal effects, which will guide the future EU-UK relationship and can act as the basis of a future agreement. Unlike the Withdrawal Agreement, the Declaration neither refers to Gibraltar nor gives any clarification of the mentioned article 184, as requested by Spain. In fact, Spain threatened to veto the Agreement and the Declaration if the article was not modified or removed. However, even though the article was neither modified nor removed, Spain gave its approval to both texts.

Finally, it is important to highlight three last aspects. First, neither the Agreement nor the Declaration refer to Gibraltar’s status or the sovereignty question. This issue has been expressly excluded from the Protocol, which states (on p. 497), “This Protocol is without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to sovereignty and jurisdiction.” Secondly, at a political level it is interesting to note the constructive and positive stance of the Republic of Ireland regarding the Northern Ireland issue. Ireland has preferred to make citizens’ welfare prevail over any political claim and has not threatened to use the right of veto. This can be a good example to be followed by the parties regarding the case of Gibraltar. Lastly, despite the fact that Gibraltarians voted overwhelmingly against Brexit, this territory has made its commitment to the UK very clear. This is due to the fact that the UK gives legal security to Gibraltar and full respect for the will of Gibraltarians against Spanish claims. However, when Gibraltar leaves the EU and the transition period terminates, this territory will lose an important mediator, the EU. We all recall the valuable involvement of the EU in the settlement of the 2013 diplomatic crisis between Gibraltar and Spain.