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Draft Withdrawal Agreement - November 2018 - No.7 - Protocol on Gibraltar

Updated 25 November 2018

Strategic importance:

Gibraltar has always been of strategic importance and that was recently affirmed in a statement by the Armed Forces Minister - Ministry of Defence 19 November. 

The signing of the Armed Forces (Gibraltar) Act marks an important milestone for both the UK and Gibraltar and will ensure the relationship between Service Police on The Rock and the Royal Gibraltar Police to go from strength to strength.  Armed Forces Minister Mark Lancaster said:

Gibraltar is of vital importance to the UK Armed Forces and our allies. Whilst our relationship with the EU is changing, our commitment to European prosperity and security remains steadfast and our duty to support Gibraltar, its people and its economy is resolute.
The Act referred to is an Act passed by Gibraltar - see the Statement by the Chief Minister of Gibraltar - 8 November 2018 and Government of Gibraltar - Laws of Gibraltar.

Withdrawal Agreement Protocol:

In the context of Brexit, the draft Withdrawal Agreement contains a protocol on Gibraltar.  It is relatively short but nevertheless important.  The protocol is at pages 496 to 503 of the agreement and, by Article 185, with the exception of Article 1 of the Protocol, it will cease to apply at the end of the transition period.

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

There are also "Explainers" from the European Union - Brexit negotiations: What is in the Withdrawal Agreement and from the UK government see Withdrawal Agreement Explainer.

The UK is responsible for Gibraltar's external relations.  The Protocol is without prejudice to the respective legal positions of Spain and the UK regarding sovereignty and jurisdiction.  The Protocol has to be implemented in accordance with the constitutional orders of Spain and the UK.

Article 165 establishes (among others) a Specialised Committee on issues related to the implementation of the Protocol on Gibraltar.

The 6 articles of the Protocol are:

Article 1 - Citizens' Rights - provides for close cooperation between UK and Spain regarding the effective implementation of Part 2 of the draft withdrawal agreement on citizens' rights.

Article 2 - Air Transport Law -

Article 3 - Fiscal matters and protection of financial interests

Article 4 - Environmental protection and fishing

Article 5 - Cooperation in Police and Customs matters

Article 6 - Tasks of the Specialised Committee - (i.e. the committee set up by Article 165)

Problems?


A further report - (see HERE) - is that the Spanish government is seeking "clarity" about the position of Gibraltar under the draft agreement.   Article 184 of the draft sets out that there will be negotiations on the future relationship.  It appears that Spain wishes to have the Gibraltar question dealt with separately from the negotiations under Article 184.

See BBC News 19 November 2018 - Spain demands Gibraltar veto in Brexit deal -"Spain has said it will not agree to the draft Brexit withdrawal deal without clarity over how talks on the future status of Gibraltar should be handled.  Foreign minister Josep Borrell insisted that talks about the territory were "separate negotiations."  The country will not agree to the draft deal until that is clarified, he said following a meeting with EU ministers."
 

Possible problems relating to Gibraltar arose at an early stage of Brexit and were noted in this post of  1st April 2017.

For now, let's keep an eye on developments and this post will be updated as required.

Update 25 November 2018:

The Spanish concerns appear to have been addressed - The Guardian 24 November -  where it is reported that - "On the eve of Sunday’s special Brexit summit, the British ambassador to the EU, Sir Tim Barrow, wrote to concede that Gibraltar would not necessarily be covered by a future trade deal with the EU."

The letter from the UK Permanent Representative to the EU may be read at Negotiations on the future relationship: Territorial scope.   This states that Article 184 imposes no obligations regarding the territorial scope of future agreements.  For Art 184 see this previous post.

An Annex to the Withdrawal Agreement was issued by the European Council on 25 November.  Regrading Gibraltar it states:



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