An Open Letter addressed to the President of the European Commission, the President of the Republic of Cyprus, the Prime Minister of the United Kingdom and the Administrator of the Sovereign Base Areas
Published by Agora Dialogue on 21 January 2019 at
http://forum.agora-dialogue.com/
Date: 21 January 2019
Dear President Juncker, President Anastasiades, Prime Minister May and Major General Illingworth
Re: The impact of any no-deal Brexit upon the Republic of Cyprus and the Sovereign Base Areas in the Island of Cyprus
I have composed this Open Letter to highlight one of the most complex issues arising from Brexit, i.e. the exit of the United Kingdom (‘the UK’) from the European Union (‘the EU’), as scheduled to take place at 11.00 pm Greenwich Mean Time (‘GMT’) on 29 March 2019 (‘exit day’). This issue is the impact of any no deal scenario upon the Republic of Cyprus (‘the RoC’), as well the Sovereign Base Areas of Akrotiri and Dhekelia (‘the SBAs’) over which the UK asserts sovereignty. Both the RoC and SBAs are situated in the Island of Cyprus (‘the Island’) at the south-east edge of Europe.
To quote the Department for Exiting the EU in the Government of the UK:
‘A no deal scenario is one where the UK leaves the EU and becomes a third country [vis-à-vis the EU] at 11pm GMT on 29 March 2019 without a Withdrawal Agreement and framework for a future relationship in place between the UK and the EU.’
A no deal scenario is otherwise known by various other terms, such as a no-deal Brexit. Hereafter in this Open Letter, I adopt this latter term.
Due to ‘the meaningful vote’ held in the House of Commons in Westminster on 15 January 2019, the prospect of a no-deal Brexit has intensified. This is because 432 Members of Parliament (MPs) voted against ‘the final deal’ reached by the UK and the EU; by contrast, only 202 MPs voted in favour it. In practice, therefore, an emphatic majority of British MPs voted against the two elements of ‘the final deal’: the Withdrawal Agreement, as published on 25 November 2018 and as laid before Parliament on 26 November 2018; and the Political Declaration, as published on 25 November 2018 and as likewise laid before Parliament on 26 November 2018.
More to the point, an emphatic majority of MPs consciously or unconsciously voted against one of the texts annexed to and thereby forming an integral part of the Withdrawal Agreement. I refer to the 30-page Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus (‘the SBA Protocol’). In the Appendices of this Open Letter, I have reproduced two brief summaries of the SBA Protocol, as embodied in the Legal Position presented to the Parliament of the UK on 3 December 2018 (at Appendix 2) and in the Explanatory Memorandum attached to the Decision of the European Council of 5 December 2018 (at Appendix 3).
As things currently stand, the outcome of ‘the meaningful vote’ means that Brexit will take place, by law, at 11pm GMT on 29 March 2019, but in the absence of any agreed, binding, enforceable and implementable UK-EU agreement, which expressly covers the special circumstances prevailing in – and between – the RoC and the SBAs. This will remain so unless there is any valid change in the law before 29 March 2019. In the meantime, that date remains exit day on account of the European Union (Withdrawal) Act 2018 and the two-year procedure built into Article 50 of the Treaty on European Union. Needless to say, that procedure was originally activated on 29 March 2017 when Theresa May MP, the Prime Minister of the UK, served a notice upon the European Council under Article 50(2) of the Treaty on European Union.
Not surprisingly, therefore, on 16 January 2019, Michel Barnier, the EU’s Chief Negotiator, cautioned: ‘We are only 10 weeks away from the end of March [2019], the moment when the UK has chosen to become a third country [vis-à-vis the EU]. And today, 10 weeks away, the risk of a no deal has never been so high.’ On the same day, Jeremy Corbyn MP, the Leader of the Labour Party and HM Opposition, went further by envisaging ‘the prospect of the catastrophe of a no-deal Brexit from the EU, and all the chaos that would come as a result of that.’ By contrast, other MPs and commentators have expressed a different view. Some have even argued that there is nothing to fear from any no-deal Brexit. However, the proponents of this latter thesis do not appear to have acknowledged that, for the reasons outlined in this Open Letter, any no-deal Brexit could provoke damaging, disruptive or otherwise adverse consequences for the RoC and the SBAs, plus British Forces Cyprus and the families attached to British Forces Cyprus.
Any no-deal Brexit could even undermine the economic security or the national security of the RoC, while having the direct or indirect effect of converting the hitherto ‘soft’ boundaries of the SBAs into ‘borders’ which might become ‘hard’ in circumstances that may give rise to yet another partition of the Island. Any such outcomes would be incompatible with the undertakings given by the UK under the Treaty of Guarantee of 16 August 1960. Back then, the UK not only undertook to ‘guarantee the independence, territorial integrity and security of the Republic of Cyprus’ but ‘to prohibit … any activity aimed at promoting, directly or indirectly … [any] partition of the Island.’
In saying the above, I am pointing to real possibilities, which have hitherto failed to attract the publicity they deserve, especially in Westminster and Nicosia. At the same time, in saying the above, I am neither approving nor disapproving of ‘the final deal’, the SBA Protocol, the SBAs or the neo-colonial texts dating back to 1960, which regulate the RoC, the SBAs and the Sovereign Base Areas Administration (‘the SBA Administration’); this is not the place for me to address these thorny issues. Instead, with the real possibility of a no-deal Brexit uppermost in mind, I have composed this Open Letter with other purposes in mind – to advance ‘Six Propositions’, to raise a series of concerns, to highlight various risks and to make a number of requests. The ‘Six Propositions’ are pinpointed below, with details appearing in Appendix 1:
Proposition 1: The European Commission, the Government of the UK, the SBA Administration and the Government of the RoC have not been sufficiently transparent as to how any no-deal Brexit may affect the RoC and the SBAs.
Proposition 2: A no-deal Brexit may have damaging, disruptive or otherwise adverse consequences for the citizens and lawful residents of the RoC who serve, work, study, farm, trade, live, travel or otherwise operate in the SBAs.
Proposition 3: In the event of any no-deal Brexit, the RoC may be adversely affected more than any of the 27 remaining members of the EU (‘the EU-27’), with the exception of Ireland.
Proposition 4: The Government of the RoC does not appear to have taken adequate, transparent and well-publicised steps to prepare the public and private sectors of the RoC for any no-deal Brexit.
Proposition 5: Any no-deal Brexit may have profound implications for British Forces Cyprus which, in turn, may have adverse consequences for the RoC.
Proposition 6: A no-deal Brexit may have damaging, disruptive or otherwise adverse consequences for citizens of the UK in the RoC, if not also for citizens of the RoC in the UK.
As illustrated by the details set out in Appendix 1, each of these ‘Six Propositions’ is supported by evidence. Each ‘Proposition’ is also tinged with complexity. Then again, this is hardly surprising. After all, Brexit is inherently complex for the general reasons graphically summarised on 15 January 2019 by Geoffrey Cox QC MP, the Attorney General of England and Wales:
‘We should not underestimate the legal complexity of our disentanglement from 45 years of legal integration [since the accession of the UK to the then European Economic Community on 1 January 1973]. … Forty-five years of legal integration have brought our two legal systems [i.e. those of the UK and of the EU] into a situation where they are organically linked. To appeal to those who have a medical background, it is the same as if we were to separate from a living organism, with all its arteries and veins, a living organ – a central part from this body politic. We cannot underestimate the complexity of what we are embarked upon doing.’
I would go further than the Attorney General. To borrow his evocative phrase, the RoC, the UK and the SBAs have become as ‘organically linked’ to one another as the UK has become ‘organically linked’ to the EU. This is partly because of the extraordinary state of affairs which came into existence on 16 August 1960, when the RoC was established, subject to the retention by the UK of two areas of the Island of Cyprus, i.e. the SBAs. This state of affairs arose by virtue of various texts, notably the Cyprus Act 1960, an Act of the UK Parliament, the Treaty of Establishment, an instrument of international law signed by the RoC, Greece, Turkey and the UK on 16 August 1960, and the aforementioned Treaty of Guarantee, another instrument of international law signed on the same date by the same parties.
Since 1960, the UK, the RoC and the SBAs have become even more ‘organically linked’ to one another for other reasons, not least because of what occurred on 1 May 2004. Whereas the UK acceded to the then European Economic Community (‘the EEC’) on 1 January 1973, the RoC did not accede to the EU until 1 May 2004 whereupon the RoC joined Malta and the UK as the only three states to belong to the United Nations, the Commonwealth, the Council of Europe and the EU. On each of these dates, the SBAs remained out of EEC and the EU respectively. Even so, on 1 May 2004, the SBAs became subject to EU Law and other EU measures in certain spheres, such as the Commons Agricultural Policy; the SBAs also joined the Customs Union and became part of the Customs Territory of the EU.
On 1 May 2004, these incursions by the EU into the SBAs occurred pursuant to a package of measures including those known as Protocol No 3, Protocol No 10 and the Memorandum of Understanding signed in Nicosia on 5 June 2003. In due course, after the entry of the RoC into the eurozone on 1 January 2008, the SBAs even adopted the euro as de jure legal tender; in the process, the SBAs also became ‘de facto members of the eurozone’. Today, therefore, the SBAs are ‘organically linked’ to the UK, the RoC, the EU and even the eurozone.
For these and for other reasons set out in Appendix 1 of this Open Letter, the European Commission, the Government of the UK, the SBA Administration and the Government of the RoC must come clean. With exit day looming on the horizon, each of these entities must disclose what each knows about the implications of any no-deal Brexit upon the RoC and the SBAs. More specifically, each must clarify the nature, scope, cost and other implications of any no-deal Brexit upon the RoC, the SBAs, British Forces Cyprus, citizens of the UK in the RoC, citizens of the EU in the SBAs and others.
Above all, the European Commission, the Government of the UK, the SBA Administration and the Government of the RoC must specify the steps which each has already taken, is taking and will take to prepare for any form of Brexit, including any no-deal Brexit. To limit the effects of any form of Brexit upon those who serve, work, study, farm, fish, trade, live or travel in the RoC or the SBAs, each of these entities must also co-ordinate with each other before publicising which action will be taken before, upon and after exit day.
All in all, therefore, to enable everybody in the UK, the SBAs, the RoC and elsewhere else to plan ahead, the European Commission, the Government of the UK, the SBA Administration and the Government of the RoC must each make a full, frank and open disclosure. Each disclosure must encompass – but not be limited to – the provision of a comprehensive response to the matters raised in this Open Letter and to the other matters raised in Appendix 1. Needless to say, I trust that each such disclosure will be made in public and each will be appropriately publicised.
In the meantime, I emphasise that this Open Letter inter-relates with written evidence, which I submitted on 12 October 2017 to a Brexit-related inquiry carried out by the Constitution Committee of the House of Lords in Westminster. My written evidence was subsequently published by the Parliament of the UK. It was likewise mentioned in Appendix 2 of a report of the Constitution Committee published on 29 January 2018. That being said, the concerns raised in my written evidence appear to have cut little or no ice in Westminster, Whitehall, Brussels, Nicosia and Episkopi, the latter of which is the Headquarters of the SBA Administration. I trust there will be no repetition on this occasion and that my concerns will be adequately addressed.
Conclusions
I conclude by making various requests which flow from the preceding analysis.
Firstly, I urge the European Commission, the Government of the UK, the SBA Administration and the Government of the RoC to be far more transparent than each has hitherto been in relation to the impact of Brexit generally and the impact of any no-deal Brexit, in particular, upon the RoC and the SBAs.
Secondly, I urge all with responsibility for Brexit, including MPs in the House of Commons, to take all necessary steps to ensure that Brexit does not take place on 29 March 2019, or, for that matter, on any later date, unless there is an agreed, binding, enforceable and implementable agreement between the UK and the EU – or between the UK and the RoC – which expressly covers or is specifically devoted to the special circumstances affecting the RoC, the SBAs and the boundaries of the SBAs. That being said, in contrast to the ill-fated SBA Protocol, which was negotiated and drafted in secret before being dumped on the public in draft form on 14 November 2018 before being dumped on the Parliament of the UK as a non-negotiable fait accompli on 26 November 2018, any new agreement must be the product of a transparent and otherwise fair procedure encompassing adequate consultation and risk assessments. Any new agreement must also be subjected to line-by-line parliamentary scrutiny in the European Parliament, the UK and RoC.
Thirdly, in view of what appears to be chronic ill-preparedness for any form of Brexit in parts of the RoC, I urge all concerned to ensure that no form of Brexit should take place unless and until risk assessments and programmes of preparation have been completed in the public sectors of the RoC and SBAs. If such steps require months or even a year or so to be prepared, implemented and completed, then so be it. It is far better to be safe than to be sorry after rushing before exit day. Put another way, I urge all concerned to ensure that Brexit is not achieved in disorderly circumstances, which may adversely affect the health, safety, security and human rights of all those who live or work in the RoC and the SBAs. The reasons are self-evident.
Not only have the RoC and the SBAs no doubt been woven into the national intelligence machinery, national security strategy, counter-terrorism strategy, serious and organised crime strategy, defence policy and expeditionary operations of the UK. In addition, since 1 May 2004, the pre-existing ties between the UK and the RoC dating back to 1960 have deepened under the framework of the EU. All of which begs a basic question. What would happen to the security of the UK, the SBAs and the RoC if, due to any no-deal Brexit, the UK was abruptly yanked out of the EU and its structures of co-operation in areas such as policing, counter-terrorism, criminal justice and extradition? This question is all the more pressing if one recalls that the RoC and the SBAs are situated in one of the most dangerous places in the world.
To the north is Turkey, which continues to occupy the ethno-religiously cleansed, colonised and crime-ridden north of the RoC. In 2018, the annual Trafficking in Persons Report of the US State Department branded the Turkish-occupied north as ‘a zone of impunity for human trafficking’ and as a place where people, including children, are at risk of ‘forced prostitution’, ‘sex trafficking’, ‘forced labor’, ‘sexual exploitation’ or other inhumanities.
To the east of the RoC is Syria, the scene of what the UN High Commissioner for Human Rights described in 2017 as the ‘worst man-made disaster the world has seen since World War II’ and as ‘a place of savage horror and absolute injustice’. Indeed, to quote the UK’s Foreign and Commonwealth Office, ‘a number of terrorist groups … operate in Syria’ amid ‘a heightened threat of terrorist attack globally against UK interests and British nationals, from groups or individuals motivated by the conflict in Iraq and Syria.’
Against this background, I remind the Prime Minister of the UK and all other British MPs of certain realities: the UK regards itself as having an ‘important role as a Guarantor Power’ of the RoC; the UK has undertaken to guarantee the security of the RoC; ‘the British community’ in the RoC numbers ‘over 70,000’; one of the two SBAs, the Dhekelia SBA, abuts the aforementioned ‘zone of impunity’; and the RoC as well as both SBAs are uncomfortably close to the aforementioned ‘horror’. Accordingly, all with responsibility for Brexit – be they in Whitehall, Westminster, Brussels, Nicosia, Episkopi or elsewhere – must take due account of these realities before any no-deal Brexit arises in disorderly circumstances which could produce dislocation, disruption and dangers in the most vulnerable part of the EU – the RoC.
With all this in mind, I end with a sobering thought. I have composed this Open Letter in the RoC in my dual capacity as an academic and as a citizen of the UK who lives and works in a part of Larnaca District, which is a mere 200 kilometres or so from the west coast of Syria. Dhekelia is even closer to that coast; it is only 190 or so kilometres way. That is considerably less than the distance of 270 kilometres or so which separates Bristol from Dover and the distance of 260 kilometres or so which separates Dover from Paris.
I refer to these distances as a prelude to making an obvious point, which nonetheless needs to be emphasised. Brexit does not solely affect the UK at the relatively stable north-west edge of Europe. Brexit also affects people with multi-dimensional concerns at the volatile south-east edge of Europe.
Yours sincerely
P.S. 1: The contents of this Open Letter reflect the personal views of the writer, who is an Assistant Professor in the School of Law of the Cyprus Campus of the University of Central Lancashire, i.e. UCLan Cyprus.
P.S. 2: Please click below for a more comprehensive version of this Open Letter, which is accompanied by various Appendices, namely those providing details on the aforementioned ‘Six Propositions’ at Appendix 1, extracts from the aforementioned Legal Position at Appendix 2, extracts from the aforementioned ‘Explanatory Memorandum’ at Appendix 3, a ‘Declaration of Interests’ at Appendix 4 and ‘Endnotes’ at Appendix 5.
© Klearchos A. Kyriakides, Larnaca, January 2019