"The sun never sets on the British Empire" was the accurate boast of the British at the peak of their power, since the expanse of the British Empire was once such that the sun would always be rising on at least one of their numerous territories.
The "remnants" of the once powerful empire today are 14, the so called "British Overseas Territories", and include the sovereign bases of Akrotiri and Dhekelia in Cyprus (the Bases). Although they are often grouped with the other 13 overseas territories, the case of the Bases is different, and merits separate analysis in view of Brexit, especially since the east Bases specifically the corridor that connects Dhekelia with Agios Nikolaos today constitutes a de facto external border of the EU. The exit of the UK from the EU and the converging interests of the EU and Cyprus for the safeguarding of the "last fortress" on European terms presents a unique situation for Cyprus (i) to clarify the legal status of the Bases; (ii) to safeguard the rights of the EU citizens residing and working within the Bases; and (iii) to amend the old texts which govern the relationship between the Bases and the Government of the Republic of Cyprus to clarify the rights and obligations of each party.
The Bases are often referred to as "sovereign" but this term is actually misleading because they do not constitute a state and are not independent they are the responsibility of the UK Ministry of Defence (rather than the Foreign and Commonwealth Affairs Office, which governs the rest of the overseas territories) and any powers exercised by the military Commander (the rest of the overseas territories are governed by a Governor) are ceded by the Crown as stemming from the Treaty of Establishment of the Republic of Cyprus1 (the Treaty of Establishment). Nor could it correctly be stated that the territories in question did not gain independence in 1960 and remained a remnant of the colony ceded to the Crown on 5 November 1914. This is because firstly, the intention of the UK as demonstrated in Appendix "O"2 (which restricts their use to military) and Appendix "R"3 (which restricts the right of future disposal only to the Republic of Cyprus) of the Declaration of Her Majesty`s Government Regarding the Administration of the Bases and the nonsubmission of reports to the United Nations demonstrate the opposite. Secondly, even if this were the case, the status of colony would have been abolished by resolutions 2551/1969 and 2621/1970 of the United Nations which prohibit colonisation in any form.
The version that the British sovereignty over the Bases is limited to the exercise of military control is the most convincing. This version also gains credence by the case of Graham Thomas Preece v "ESTIA" Insurance and Reinsurance SA4 where it was decided that the Bases do not constitute a state or colony, but neither do they constitute part of the territory of the Government of the Republic of Cyprus.
In Cyprus today, it is often claimed that Brexit will not change the status quo, since the Bases never constituted EU territory. Indeed, when the UK acceded to the then European Economic Community in 1973, its "Declaration on the Sovereign Bases" provided that the Treaty of Rome 19575 would not apply to the territory of the Bases. As a result, the Bases would not constitute EU territory nor would they be subject to the EU acquis communautaire. Protocol 3 of the Act of Succession of Cyprus to the EU 6 (Protocol 3) gives flesh and bones to the non-subrogation of the Bases to the EU acquis communautaire, with a number of exemptions and specific provisions regarding custom duties, social security, agriculture, the safeguarding of borders and the freedom of movement, so today, a complex arrangement is in force between the signatories, affirmed by the EU, which selectively applies certain EU provisions with direct effect and affirms principles of equal treatment.
Circumstances today are very different to those of 1960, when the Treaty of Establishment imposed "the only acceptable remedy to a desperate situation in which the will of the local majority had to be subjugated in the interests of international peace"7. Cyprus is an independent state of the EU and as such must play a key role in any negotiations for the revocation or amendment of the texts relating to the Bases in cooperation with the EU so as to ensure the safeguarding of the external borders and affirm the rights of EU citizens residing and working in the Bases.
Today, in accordance with Article 5 of Protocol 3, the UK has the responsibility to conduct checks on persons who pass the borders between the Republic of Cyprus and the Bases, so with Brexit, the external border of the EU will henceforth be guarded by a non-EU state. The lack of clarity as to the ownership of the territorial seas further complicates the safeguarding of the borders. If we accept the argument that the sovereignty of the UK is limited to the exercise of military control, it is implied that the Bases are not entitled to territorial waters, since such a right is attributed only to states under international law. At the same time, this means that these waters are "orphaned", since according to Article 3 of the Treaty of Establishment, the Republic of Cyprus expressly undertakes that it will not raise a claim for these territorial seas. Simply put, the patrimony of a sea of paramount geopolitical importance and an external border to a war-torn Middle East, are governed today by EU texts which in view of Brexit should either be modified or revoked. The fact that the Republic of Cyprus with the Treaty of Establishment "ceded" the right to its territorial seas to the Bases should not negate this right permanently and indefinitely. Consequently, and as the importance of these territorial waters increases for various economic, strategic and geopolitical reasons the question arises for how long this `concession' will last.
It is certain that the exit of the UK from the EU will bring to the fore the question of the sovereignty of the Bases. Brexit has anticipated the need for clarity. Article 6 of Protocol 3 provides that the Council may, by unanimous proposal from the Commission, amend the provisions of Protocol 3 with a view to ensure the effective implementation of the objectives of the Protocol, or to apply other provisions of the (current) Treaty on the functioning of the EU and the relevant EU legislation in the Bases, under such terms and conditions as the Council may specify. Given that the acquis communautaire overrides the Constitution and any local legislation, Cyprus should approach the Commission to propose to the Council the exercise of this power.
In view of Brexit, the relationship of the Bases with the Republic of Cyprus should be reviewed and clarified, in accordance with the European principles of proportionality and subsidiarity enshrined in Article 5 of the Treaty on the EU8, which respectively provide that any action should not exceed what is strictly necessary to achieve the pre-agreed objectives, and determine the most appropriate level of intervention in areas of shared competence. It should be noted that, in relation specifically to the principle of proportionality, that the "carrot" to the Annan Plan constituted the British promise to cede back to the Republic of Cyprus a significant part of the Bases, the rural or residential areas, which would not affect the military operation of the Bases, and which are, strictly speaking, not required in order to achieve the military objectives of the Bases. The principle of proportionality and the reasons for applying this principle should not be revocable depending on the passing of the Plan. Cyprus today is faced with a unique opportunity to leverage the strength of the EU and negotiate its position regarding the Bases to finally clarify the actual legal status of UK sovereignty over the Bases, and the conditions subject to which it will continue.
It is understood that Cyprus was once a colony of the British Empire, and that in other times, under different circumstances, Cyprus did not always have a say in the developments of our country. Cyprus is now an independent and sovereign EU state, with an obligation to protection the welfare of its residents. With the exit of the UK from the EU and the forthcoming negotiations, now is the time to bring back to the fore, clarify and assert ambiguous issues pertaining to the Bases that are of common interest to Cyprus and the EU, at the very least to confirm the contractual nature of the use of the territories of the Bases by the UK; to respect the principle of proportionality for the assignment of lands not required for the agreed use; to safeguard the European rights of the Cypriots and, by way of extension, of the European residents of these territories; to safeguard (with all that this entails as far as the four EU freedoms are concerned) the borders in accordance with EU criteria; and to clarify the status under which the Bases (and hence the UK) assert control of the territorial waters of the Republic of Cyprus.