Sovereign Base Areas in Cyprus
The Commission’s revised draft Withdrawal Agreement of 15 March 2018 includes an incomplete draft Protocol relating to the British military bases in Cyprus. The current legal base for the economic administration of the bases is a Protocol (Protocol 3) attached to the Treaty of 2003 whereby Cyprus acceded to the European Union. The need to address this issue in the light of Brexit has been acknowledged previously.
The European Council’s Guidelines of 29 April 2017 defining a framework for negotiations under Article 50 include, among others Regarding UK Sovereign Base Areas in Cyprus, Bilateral arrangements between UK and Cyprus should be respected if compatible with EU law (especially regarding EU citizens resident/working in Sovereign Base Areas).
However, the Joint Report of 8 December 2017 did not refer to Cyprus. The new text goes some way towards filling the gap by indicating the principles to be applied (“the objectives set out in Protocol 3”) and creating a “placeholder” for new mechanisms to be defined. The aim is stated to be to “ensure the proper implementation of the applicable Union law in relation to the Sovereign Base Areas in Cyprus following the withdrawal of the United Kingdom from the Union”.
Cyprus was ceded to the British Empire by the Ottoman Empire in 1878, originally as a protectorate, in return for British support for the Ottoman Empire against Russian encroachments. It was redefined as a military occupied area in 1914 and later as a Crown Colony from 1925. When Cyprus became independent in 1960 the UK retained the two main military bases of Akrotiri and Dhekelia and surrounding land as “sovereign bases” which were recognised as such by Cyprus, Greece, and Turkey in the Treaty of Guarantee.
From the beginning, the UK agreed to use the bases only for military purposes and not to install customs posts around them. This meant that although day to day mechanisms for administration were agreed directly between the UK Ministry of Defence and the government of Cyprus, the arrangements needed to be formalised and amended in international law when first the UK and then Cyprus joined the EU.
The two bases together cover 98 sq. miles. According to the MOD, there are approximately 7,000 Cypriot residents, around 3,000 UK service personnel and around 3,500 dependants of service personnel. Most of the Cypriot residents work at the bases or provide goods and services to them.
Protocol 3 attached to the Accession Treaty whereby Cyprus joined the EU does not contain a set of “objectives” as such, but the preamble to 82 Brexit: the draft withdrawal agreement the Protocol notes that “one of the main objects to be achieved is the protection of the interests of those resident or working in the Sovereign Base Areas, and considering in this context that the said persons should have, to the extent possible, the same treatment as those resident or working in the Republic of Cyprus”.
It further notes “the commitment of the United Kingdom not to create customs posts or other frontier barriers between the Sovereign Base Areas and the Republic of Cyprus and the arrangements made pursuant to the Treaty of Establishment whereby the authorities of the Republic of Cyprus administer a wide range of public services in the Sovereign Base Areas, including in the fields of agriculture, customs, and taxation”. [emphasis added]
Since there is general agreement between all the parties that the status of the UK bases should not be materially altered by Brexit, the main issue for negotiation concerns the detailed mechanisms for which a placeholder has been left in the draft Withdrawal Agreement.
This is because the current mechanism, contained in Article 6 of the 2003 Protocol, assumes that both the UK and Cyprus are members of the EU and that the Council has the power to amend the detailed provisions:
The Council, acting unanimously on a proposal from the Commission, may, in order to ensure effective implementation of the objectives of this Protocol, amend Articles 2 to 5 above, including the Annex, or apply other provisions of the EC Treaty and related Community legislation to the Sovereign Base Areas on such terms and subject to such conditions as it may specify. The
The commission shall consult the United Kingdom and the Republic of Cyprus before bringing forward a proposal.
With the agreement of the Commission, the UK and Cyprus commenced bilateral negotiations to resolve these issues in October 2017. According to the Cypriot CNA news agency, the foreign minister of Cyprus told his Parliament that “what is being sought is to safeguard the same rights that Cypriot nationals enjoy under the current regime”. Bloomberg news agency reported him optimistic that a solution would be found and his main concern was that in the event of a “hard Brexit” with no withdrawal agreement, the status of the sovereign bases and their residents could be left in “limbo”.
Gibraltar joined the EU in 1973 as an external European territory of the UK. It was exempted from the Customs Union and certain other provisions but has otherwise enjoyed full access to the Single Market. Gibraltar did not join the Schengen group. The consequence of these arrangements has been that the freedoms of the Single Market generally apply at the Spain/Gibraltar border, but there are exemptions in place for certain goods and Spain is entitled to carry out customs checks and checks on people crossing.
A new agreement will be required to reflect the circumstances of Brexit. The Commission’s revised draft WA of 15 March 2018 defines the territorial scope of the Agreement as including Gibraltar “to the extent that Union law was applicable to it before the date of entry into force of this Agreement” and a footnote recalls paragraphs 4 and 24 of the European Council guidelines of 29 April 2017 regarding Gibraltar.
Article 4 of those guidelines set out the general principle that withdrawal should be orderly and minimally disruptive. Article 24 referred specifically to Gibraltar and stated:
After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom. A new agreement applying to Gibraltar is likely to take the form of a separate Protocol alongside the main Withdrawal Agreement, but there is as yet no “placeholder” for this in the Commission draft. Nor is there a proposal for a specialised committee to oversee arrangements relating to Gibraltar in the way that is proposed for the Cyprus sovereign bases and for Ireland (draft Article 158).
The UK/Gibraltar Joint Ministerial Council (JMC) met in London on 7 March 2018. Following the meeting, the UK Government released a statement concerning ongoing economic and other relationships between Gibraltar and the UK in the context of Brexit, but questions concerning discussions with Spain and Gibraltar’s future relationship with Spain and the EU were not addressed. In a parliamentary written statement of 12 March, however, Robin Walker (Parliamentary
Undersecretary) reiterated the outcomes of the JMC and added: “The UK remains committed to fully involving Gibraltar as we leave the EU. We will continue to work together through the JMC process to ensure we take account of Gibraltar’s priorities in our negotiations with the EU”.
The Isle of Man and the Channel Islands
The Isle of Man and the Channel Islands (the UK Crown Dependencies) did not join the EU with the UK in 1973 and their citizens (unlike those of Gibraltar which is part of the EU) had no vote in the 2016 referendum. Instead, the Isle of Man and the Channel Islands have enjoyed a relationship with the EU which is governed by Protocol 3 attached to the UK Accession Treaty. This provides, among other things, that the Isle of Man and the Channel Islands are within the EU Customs Union and benefit from free movement of agricultural and industrial goods between themselves and the EU.
The House of Lords EU Committee published a report in March 2017 on Brexit – The Crown Dependencies. The report was debated on 23 January 2018. Replying to the debate on behalf of the Government, Baroness Goldie gave the following update:
A number of noble Lords asked how we represent the Crown dependencies in negotiations and how we take full account of their priority interests in that process… The Crown dependencies have identified six priority areas where the UK’s exit from the EU is likely to have the greatest implications for their jurisdictions. They are justice, security and migration; agriculture and fisheries; customs; financial services; transport; and the digital single market. We are committed to remaining engaged with the Crown dependencies on these areas.