At the beginning of the month the EU released what appeared to be quite a simple piece of draft legislation outlining how after Brexit visa-free travel between the UK and the EU would be allowed for a period not exceeding 90 days. However, an unsuspecting footnote, included at the request of Spain, attached to the seemingly constructive document referred to Gibraltar as ‘a colony of the British Crown’, drawing widespread condemnation from UK diplomats and prompting the Prime Minister’s official spokesman to re-iterate that ‘Gibraltar is a full part of the UK family’. Yet the implications from this seemingly insignificant footnote extend far beyond a short-lived flare up in tensions and represent a much more dangerous and potentially damaging trend, one that might ultimately help shape the outcome of the entire Brexit process itself.
Gibraltar is a self-governing overseas territory of the United Kingdom with its own parliament consisting of 17 democratically elected representatives. Furthermore, it has been British for over 300 years since it was ceded to Britain by Spain in 1714 under the Treaty of Utrecht and under the Gibraltar constitution order of 2006 the UK government ‘will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes’. In fact as recently as 2002 98.97% of the population rejected the proposal of joint sovereignty with Spain in a landmark referendum. Hence the EU footnote referencing Gibraltar as ‘a Colony’ is quite blatantly incorrect.
Nevertheless, this fact only serves to strengthen the severity of the dangerous implications that arise from the draft legislation as in overlooking such obvious contradictions by describing Gibraltar as a colony the EU is demonstrating its lack of impartiality over the Spanish claim to sovereignty over the territory. This consequently reflects the increased likelihood and preparedness of the EU to utilise Gibraltar as a pawn should they decide to re-open negotiations on the withdrawal agreement which could create a precarious negotiating situation as the clock to the UK’s departure from the EU runs down. Furthermore, this footnote also highlights the growing and increasingly assertive influence of Spain within the Brexit negotiations which when combined with the fact that Spain also has a veto on any future relationship between the UK and the EU applying to Gibraltar presents the very serious risk of Gibraltar being excluded from any transitional arrangement that might be reached creating the possibility of Gibraltar being isolated and subject to the full impact of a no-deal scenario. As a senior EU diplomat put it ‘The Spanish are gearing up for a Gibraltar fight when there is an extension request. It could be dangerous’.
Yet the ramifications of calling Gibraltar a colony could extend beyond the EU and the Brexit process by re-igniting and intensifying the issue of the sovereignty of Gibraltar at the United Nations. The most recent action by the United Nations with reference to Gibraltar, in December last year, was the recommendation by the UN general assembly’s decolonisation committee that the UK and Spain should employ ‘dialogue and co-operation’ to reach a solution to the long running dispute. However with Spain seemingly unwilling to adopt such an approach to constructive dialogue instead opting for deliberately provocative language in legal documents the issue may be forced up the agenda, especially if the rhetorical hostility were to translate into increasingly confrontational behaviour as is being observed with the increasing frequency of maritime incursions into Gibraltarian waters by Spanish vessels.
Nonetheless, the implications of this footnote are not entirely one-way and could also have internal effects on the EU. Although not a direct consequence of the footnote the process by which it was included in the draft legal text reflects upon the potential for divisions to deepen between EU member states as the Brexit process reaches its conclusion. In addition to referring to Gibraltar as a colony Spain had also sought to reference the United Nations list of non-self-governing territories subject to decolonisation. This however caused considerable disagreement with the French, who were concerned that the inclusion of such detail could create issues surrounding their continued sovereignty of French Polynesia and New Caledonia, both of which are currently included on the list. This footnote thus reflects the potential for the unity of EU states in the Brexit negotiations to fracture as the pressure continues to grow, something that the EU negotiators have been keen to contain.
Finally, should the inclusion of the footnote set a precedent in EU legislation once the UK has finally departed the reference to Gibraltar as a colony could potentially come back to trouble Spain in their dispute with Morocco over the Spanish exclaves of Ceuta and Melilla. Morocco continues to claim these territories as their own and should Spain become overly keen in trying to justify its claim to Gibraltar as a decolonisation argument, they might then inadvertently open themselves up to pressure over their North African exclaves.
Nonetheless, the primary and most pressing implications from the recent EU draft legislation are the concern of the United Kingdom and Gibraltar. The footnote signals a dangerous shift in the EU’s position of neutrality over the sovereignty of Gibraltar with potential ramifications for the Brexit negotiations. Furthermore, the risk of Gibraltar being excluded from any future arrangement with the EU appears to have escalated severely threatening the livelihoods of those who live and work in Gibraltar, including approximately 12,000 workers who cross the border daily. The Conservative MEP Daniel Dalton succinctly summed up the situation by accusing Spain of treating Gibraltar as ‘a political football’. It is thus imperative that, with the EU seemingly taking Spain’s side, the UK continues to extend rock-like support for Gibraltar in order to protect every citizen of the United Kingdom regardless of where they live, and ensure a stable and orderly exit from the European Union.
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