Gibraltar and the territorial application of the Withdrawal Agreement

Article 3(1) b of the WA makes clear that any reference in the Agreement to the UK is, when the context so requires, to be understood as referring also to Gibraltar ‘to the extent that Union law was applicable to it before the date of entry into force of this Agreement’. However, Article 184 of the WA devoted to the negotiations on the future relationship between the EU and the UK states that both parties will use ‘their best endeavors, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship’. Since this provision does not refer to the need to get consent from the Spanish Government to apply any future agreement to Gibraltar, it was interpreted by Spain as disregarding the European Council guidelines of 29 April 2017 which established that after the UK left the Union, no agreement between the EU and the UK could apply to the territory of Gibraltar without the consent of Spain.⁴’’ The Spanish Prime Minister, Pedro Sanchez, even expressed his reluctance to support the WA at the extraordinary meeting of the European Council to be held on 25 November 2018, unless a solution was found to this sensitive issue. Sanchez said that he would not attend the meeting of the European Council if acceptable guarantees on Gibraltar were not put in place before the summit. Even though the WA could have been approved by qualified majority in the Council, the lack of support of one Member State to the WA would have clearly weakened the political consensus needed to deal with the implications of Brexit.

The concern of Spain as regards the territorial application of the WA in respect of Gibraltar led to the adoption of two joint interpretative declarations by the European Council and the Commission and a letter sent to the Spanish Prime Minister by the President of the European Council and the European Commission, one day before the extraordinary meeting of the European Council of November 2018. In addition, on 24 November 2018, the British Permanent Representative sent a letter to the Secretary-General of the Council of the EU on the interpretation of Article 184 of the WA. Under these conditions, the European Council endorsed the WA by consensus and invited the Commission, the European Parliament and the Council to take the necessary steps to ensure that the agreement entered into force on 30 March 2019, as it was originally planned.⁴⁴

According to the interpretative Declaration on Article 184 of the WA, this provision

imposes no obligations regarding the territorial scope of such agreements. Therefore, there is no obligation or presumption, on the basis of this provision, for such agreements to have the same territorial scope as the one provided for in Article 3 of the Withdrawal Agreement.

This interpretation is confirmed by the letter sent by the British Permanent Representative to the Secretary-General of the Council. Also, the European Council and the Commission took note of the declaration sent by the UK in relation to the interpretative declaration.

It is very common for states and international organizations to resort to interpretative declarations which are normally attached to their expression of consent to be bound by multilateral treaties. According to the International Law Commission, an interpretative declaration is ‘a unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions’.⁴’ In the case of the EU, it is also very common to resort to interpretative interpretations not only with the occasion of the adoption of new Treaties, but also in the daily practice of the institutions, in particular in the case of the European Council when national interests come into conflict.⁴'’

As it was pointed out before, the interpretation of Article 184 of the WA gave rise in Spain to an intensive political debate in the last weeks of November 2018. While some political parties considered that the concerns of Spain found a satisfactory solution, others held that the interpretative declarations are not legally binding. As a result of this debate, the legal value of the interpretative declarations adopted by the European Council and the Commission was seriously questioned. However, this issue is well settled in international law and, in particular, in the two Vienna Conventions on the Law of Treaties of 1969 and 1986. According to Article 31(1) of the Vienna Convention of 1969, ‘a treaty shall be interpreted in good faith in accordance with the ordinary' meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. It seems clear that the interpretative declarations adopted by the parties have to be taken into account when determining the context. The context for the purpose of the interpretation of a treaty includes ‘any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’.⁴ Accordingly, the Interpretative Declaration on Article 184 of the WA is clearly linked to the WA and forms part ofits context.⁴⁸ The interpretation of Article 184 of the WA was also confirmed by the letter sent by the British Permanent Representative to the Secretary-General of the Council.⁴⁹ As it has been held, ‘had the clarifications contained in the declaration been included instead in a provision of the Withdrawal Agreement ..., they would have had the same interpretative value that should be recognized here’.’¹¹

The implications arising from the second interpretative declaration included in the minutes of the European Council meeting of 25 November 2018 complement the effects of the first declaration (Declaration of the European Council (Art. 50) and the European Commission on the territorial scope of the future agreements). The European Council and the Commission held that

after the United Kingdom leaves the Union, Gibraltar will not be included in the territorial scope of the agreements to be concluded between the Union and the United Kingdom. However, this does not preclude the possibility to have separate agreements between the Union and the United Kingdom in respect of Gibraltar.

The second declaration issued by the European Council and the Commission is an additional guarantee confirming the content of the European Council Guidelines adopted in April 2017. It is clearly stated that any separate agreement between the EU and the UK on Gibraltar will always require a prior agreement of Spain. As it was pointed out before, the terms of the Declaration on the territorial scope of the future agreements were confirmed in the letter of 24 November 2018 sent by the Presidents of the European Council and the European Commission to the Spanish Prime Minister.

The territorial scope of the future partnership between the UK and the EU is also recalled in the Council Decision authorizing the opening of negotiations for a new partnership with the UK of25 February 2020.’¹ Therefore, the EU is fully respectful of the territorial integrity ofits Member States as guaranteed by Article 4(2) of the TEU, and the application of any future agreement between the EU and the UK will require a prior agreement of Spain. As it has been argued, whether these separate future agreements are mixed agreements or whether they are configured as EU-only agreements they will require the consent of Spain in respect of Gibraltar.’²

The Protocol on Gibraltar and the four Molds signed between Spain and the UK on 29 November 2018 represent the first substantial agreement reached over issues that have created serious frictions between both parties in the last decades. Brexit has allowed tor the first time in history to establish a framework that will address the most sensitive areas of concern for the relations between Spain and Gibraltar. Spain has tried on several occasions in the past to obtain concessions from the UK and Gibraltar through several rounds ot negotiations, but the results have always been fruitless.