Gibraltar tras el Brexit: en busca de un nuevo Estatuto Internacional con la UE y con España. Negociando el Tratado RU-UE sobre Gibraltar

Abstract

Following the 2016 ‘Brexit’ referendum, and the effective Withdrawal of the UK from the EU in February 2020, Gibraltar is in a situation of redefining and seeking a new international and European status for its relationship with the EU and with Spain. Various Treaties and agreements related to the British exit are regulating this new situation. In all of them, Spain must give its consent prior to the application of EU law to Gibraltar, through negotiations with the United Kingdom. This paper analyses the essential problems that Gibraltar raises in its relationship with Spain, such as the historical claim to sovereignty. Likewise, the aspects of cross-border cooperation in their evolution and current needs. This background then makes it possible to analyse the 2019 UK-EU Withdrawal Treaty and the existing forecast regarding Gibraltar, which is a novel way of collaboration in the EU framework, focused on cross-border cooperation. These are linked mechanisms provided for in the 2019 Withdrawal Treaty Protocol (Hard Law), and in Memoranda of Understanding-MOUs (Soft Law) agreed between the UK and Spain; and that regulate the treatment of cross-border cooperation with Gibraltar, provisionally after the UK Withdrawal, on the areas most in need of a Modus Vivendi of concrete cooperation (rights of citizens and cross-border workers; tobacco and other products; cooperation in environmental matters; and police and customs cooperation). Subsequently, the provisions of the important UK-EU Specific Treaty on Gibraltar, currently under negotiation, are analysed. The preliminary British-Spanish‘In-Principle’ Agreement of 31.12.2021 has allowed the Commission to adopt a Recommendation with a Draft Mandate for Negotitations (July 2021), which will lead to the formal opening of the UK-EU negotiations for a Treaty that will permanently regulate the new statute of Gibraltar in its relationship with the EU and with Spain. A comparison is made between the biletaral ‘In-Principle’ Agreement and the Commission Draft Mandate, and the viability of the negotiations is also assessed, taking into account the various problems that arise. Among these, highlights the incorporation of the territory of Gibraltar into the Schengen Area under the responsibility of Spain, the dismantling of border controls at the Verja/Frontier Crossing point, or the application of customs and commercial rules, with an original institutional structure of governance that must yet to be agreed. When concluded and ratified, this Treaty will make it possible to shield, thanks to the EU, an original model of stable cross-border cooperation with Gibraltar, opening future prospects for cooperation in other areas of the historical controversy.