In the wake of the referendum of 2016, temperatures started to fray. The then Spanish Foreign Minister, José Manuel Garcia-Margallo, came up with the idea of co-sovereignty for a limited period, at the end of which Gibraltar would be handed back to Spain (see EUROPE 11580/1). Graham Watson, the head of the Representation referred to in the first part of this article, replied firmly that “no Gibraltarian supports this proposal” (see EUROPE 11581/8). In April 2017, the British Prime Minister, Theresa May, said that Spain should not be allowed to take advantage of the situation to gain new powers over Gibraltar (see EUROPE 11760/19) and the former Conservative party chairman, Michael Howard, pointed out that London had not hesitated to send in troops to secure the Falkland Islands (see EUROPE 11764/28): a warning shot over the bows?
In November 2018, during the work on a withdrawal agreement with Mrs May, the head of the Spanish government, Pedro Sánchez, threatened to play his veto unless he was given a guarantee that Spain would be able to oppose any agreement between the EU and London over Gibraltar; he got it. What was particularly dramatic about this is that relations between Spain and the UK had actually improved at this point. With the involvement of the government of Gibraltar, regenerated four memorandums of understanding on the rights of citizens, collaboration in environmental, police and customs matters and trade in certain products.
The new withdrawal agreement negotiated with Boris Johnson, which entered into force on 31 January 2020, contains a protocol on Gibraltar. It makes provision for cooperation between the two kingdoms on the consequences of this agreement for the rights of citizens, particularly cross-border workers, and also air transport, taxation, the environment, fishing, customs and police, all “without prejudice to the respective legal positions of the UK and Spain on sovereignty and jurisdiction”. The Gibraltarian parliament had no choice but to ratify the British withdrawal agreement, irrespective of how its people voted in 2016.
The negotiations that followed with a view to a ‘post-Brexit’ trade and cooperation agreement explicitly excluded the future fate of the Rock. It was not until after the provisional agreement of 24 December 2020 had been concluded that the negotiators concerned managed, at the 11th hour, to hammer out a specific agreement on Gibraltar on 31 December. This agreement – which is also merely provisional – provides for travel between the two entities to remain open and for the Schengen system to apply after six months. This result was achieved thanks to the excellent collaboration between the grass-roots players (local administrations, employer and labour unions, etc.). It ensures that the 15,000 Spanish citizens who travel to and from Gibraltar every day to work will be able to continue to do so. A neutral operator, European borders agency Frontex, will be in charge of controls at the airport and at the port. Paradoxically, people travelling from British airports will have to show their passports and travellers from the Schengen zone will not.
A treaty is to be signed early this summer. The system it provides for will apply for four years: after this period, if any of the parties, be it Gibraltar, the United Kingdom or Spain, is not happy, it can be abandoned following mutual consultations. The document, which has not been widely circulated but is fairly ambitious, refers to visas, residence permits, asylum, customs union, the safeguard mechanism, the environment, social security, etc. It is more of a roadmap than a specific agreement. Furthermore, Gibraltar would in such an event have to adopt the entire Schengen acquis. The above, incidentally, constitutes the greatest rapprochement since the Treaty of Utrecht was signed.
Joining the Schengen zone calls for a procedure in several stages. Any state wishing to do so must submit a reasoned application, which will be examined by the Commission. The problem here is that Gibraltar is not a state and it still belongs to the United Kingdom, which has consistently declined to join the Schengen zone. Certainly, there are countries in the Schengen zone that are not member states of the EU, but this status would not appear to feature among the current British government’s plans. And London has always been at pains to stress that any decision over Gibraltar is for the UK alone. But a non-Schengen member supporting the application of one of its own territories would be very much a first.
Spain, which is a member of Schengen, is keen to solve the problem. It undeniably holds the advantage of being on the spot. Liechtenstein is the smallest member of the zone; Monaco is not a member of it at all, but applies the Schengen agreement all the same. Would Gibraltar benefit from becoming a micro-state? This would probably be terribly hurtful to British pride, but it is obvious that the local elected representatives consider that on balance, the future lies more with the EU. And if Spain is hoping for some sort of annexation by stealth over the longer term through the implementation of the agreement, such a crude trick is hardly likely to succeed. London will not stand by and do nothing and, as we have seen, the Gibraltarians themselves do not wish for Spanish tutelage.
It is not enough to call in Frontex for backup. Sooner or later, the principal EU institutions will have to get involved in these developments and show a little inventiveness. The past does not serve to justify everything: after two centuries under the Spanish Crown and three under the British one, Gibraltar deserves its own future.
Providing the gateway to the Mediterranean with a more European destiny would be a healthy response; the Pillars of Hercules are worthy of some high-level interlocutors.
Renaud Denuit