Jasmine Faudone (Dublin City University)
At midnight on 31 January 2020, the European Union (EU) flag flying over Gibraltar was replaced by the Commonwealth flag: thus ended Gibraltar’s (GIB) EU membership. The arrangements regarding its departure from the EU are contained in the Protocol on Gibraltar attached to the Withdrawal Agreement (WA). However, its negotiations have been slow – and partially inconclusive – due to the issue of the territory’s disputed sovereignty with Spain, leaving uncertainties regarding border control.
Sovereignty and border control
The issue of sovereignty is rooted in the loopholes of the Utrecht Treaty, whereby the Spanish Crown ceded Gibraltar to the English Crown in 1713. Indeed, the lack of maps annexed to the Treaty, defining the ceded area, has left room for interpretations and disputes (O’Reilly 2019). Over the centuries, the British population has been established on the Rock area, up to the border at the so-called La Linea. Today Gibraltar is a British Overseas Territory, with its democratic local institutions linked to the United Kingdom. The Brexit referendum of June 2016, in which the UK electorate voted to leave the EU, threatened to reopen the question of Gibraltar’s sovereignty. While 96% of Gibraltarians voted to for the UK to remain in the EU they have also, in previous referendums, always affirmed their link to the UK. In the 1967 referendum they rejected Spanish sovereignty, while in the 2002 referendum Gibraltarians reaffirmed their commitment to the British Crown in refusing shared sovereignty with Spain.
Nevertheless, Spain’s attitude was hostile at the beginning of the negotiations, and it softened only after Mr. Alfonso Dastis, a former diplomat, was appointed as Minister of Foreign Affairs (succeed by Mr. Josep Borell in 2018, and currently by Mrs. Margarita Robles). Dastis replaced Mr. Jose Manuel Garcia Margallo, known for his hard line on the dispute over Gibraltar. The Spanish claim on sovereignty was officially shelved, along with the threat to close the border. However, as negotiations proceeded, the political tension raised by the sovereignty issue was palpable. In January 2021, speaking to the Select Committee on the European Union at the House of Lords, Gibraltar Chief Minister Fabian Picardo stated that ‘the concept of neighbourliness envisages that the two entities are distinct, and remain distinct going forward, but the nature of the relationship should be a strong and positive one’. The fragile balance on sovereignty has affected the control of La Linea, not only during Brexit negotiations but also during Gibraltar’s EU membership.
In order to better understand this issue, it is worth recalling that the United Kingdom, and thus Gibraltar (albeit with many opt-outs), joined the European Union in 1973, while Spain only joined in 1986, after the end of the Franco dictatorship. When Spain joined the EU, it gradually unlocked the frontier gates that had been closed by General Franco in 1969 in order to pressure Gibraltarian towards accepting Spanish sovereignty (Garcia, 2021). A first partial reopening happened in 1982, but only for pedestrians, when the Spanish government was led by the Socialist Party,. In 1985, Spain reopened the border, reviving hopes that the sovereignty issue would be completely resolved. Unfortunately, Spain proceeded with many closures by land, by air and by sea (Garcia, 2021). After Brexit, the issues of the border control reemerged, together with the protection of cross-border workers. Spain would like to opt for control of the border by its own police, while Gibraltar would prefer to entrust control to the European agency Frontex. These issues are addressed in the negotiating mandate of July 2021, but have not been formally implemented, leaving uncertainty for the 12,000 cross-border workers that cross La Linea daily.
Where are we heading? And at what speed?
After the end of the transition period, the parties have shown the willingness to reach practical solutions for Gibraltar, but the negotiations of the Gibraltar Protocol have been slow, and have been conducted asymmetrically. On New Year’s Eve of 2020, a framework document had been agreed, followed by the EU’s mandate to negotiate in July 2021. The immediate response from the UK was not positive. The UK’s Foreign Secretary Dominic Raab declared that the draft mandate was in direct conflict with the framework agreed on New Year’s Eve, and that the draft mandate could not constitute a base for negotiations as ‘it seeks to undermine UK’s sovereignty over Gibraltar’. The Gibraltarian Government followed this position, and issued a statement underlining the distance between the framework and the draft mandate to negotiations. Unfortunately, there is no way to compare the framework document with the mandate, as the first one has never been published, despite the rumors that it had been leaked to the Spanish press. The main objection of the Gibraltarian Government concerned the presence of Spanish law enforcement officers in Gibraltar’s land, port or airport, considered as a ‘non-negotiable red line’. Indeed, Part III of the negotiation mandate establishes that to ensure full protection of the Schengen area external border, Spain will apply the relevant EU rules.
The Annex to the mandate specifies that the agreement should aim to remove all the current physical barriers between Gibraltar and Schengen area for the circulation of persons (Art. 15 Annex), with border control provided by Spain according to the Schengen acquis (Art. 16 Annex). In other words, Gibraltar will not participate in nor implement the Schengen aquis as such, but only some rules regarding circulation of persons will be adopted, and the UK authorities will not access the database reserved to Member States by Union Law. The checks on entry and exit will be performed by Spain – being a Member State – with special safeguards for residents in Gibraltar. Even though the mandate states that the negotiations will be carried out without prejudice to the issues of sovereignty and jurisdiction (Art. 10 Annex), and by taking into account the geographical situation of Gibraltar, its status under international law, and in view of the relationship with Spain (Art. 7 Annex), it seems like the role of Spain is still perceived as a threat. Indeed, no practical progress has been made since then. In order to protect EU Member States territorial integrity – as guaranteed by Art. 4(2) of the Treaty on the European Union – any separate agreement on Gibraltar will require a prior agreement of the Kingdom of Spain (Part III mandate). Hence, the political delay has made it difficult to make progress in the negotations. Spain’s control over the Gibraltarian border remains an open question, both politically and practically.
Recent political changes influenced positively the atmosphere of the talks, such as when the appointment of the UK Prime Minister Sunak was welcomed favorably by Gibraltar Chief Minister Picardo. However, elections in Spain might be a game changer: polls are predicting a victory of the Conservatives and the far-right, which is potentially dangerous for Gibraltar as they have called for the closure of the border in the past (Politico, 2022). The 12th meeting between Gibraltar, the UK, Spain and the EU took place in January 2023, but despite political statements suggesting a calm atmosphere, there were no substantial technical changes. At the moment, the border issues have not yet been resolved, and the old Spanish claim still weighs on the negotiations. Despite the positive attitude of the parties involved, it is difficult to evaluate what concrete outcomes can be expected beyond the veil of political declarations. After all, in the words of Chief Minister Picardo ‘we cannot pretend that 300 years of disagreement can disappear in a moment’.
The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.