In the recently published Reayrtys whitepaper, Strategic Autonomy or Greater Dependency, we made several recommendations for further research and exploration. These included: the ongoing evaluation of the benefits of greater autonomy for the Island and defining opportunities to improve the Island's standing in a post-Brexit environment.
As part of this we have asked Dr Maria Mut Bosque, Lecturer in International and European Union Law at the Universitat Internacional de Catalunya in Spain to write a short article for Reayrtys explaining some of her recent research looking at the future options for Crown Dependencies in a Post-Brexit Environment
Her article argues that the current model and mechanisms for Crown Dependencies to participate more in international affairs are not sufficient.
Instead, a preferable alternative model of governance that could help the Isle of Man would be to move to Free Association. This would be better suited to the Island’s historical ties with the UK, while enabling further develop of its autonomy and international identity.
The Isle of Man: Towards a Free Associated State?
The Isle of Man is a self-governing British Crown Dependency (CD). The CD status is the result of a firmly consolidated historical and political relationship with the UK, but it does have some weaknesses when facing new challenges and as well as gaining international recognition. The status of the Isle of Man cannot be understood as a static issue since its territory and its people are constantly evolving in terms of identity. Therefore, there comes a time when its status needs to be reviewed. So, it can more satisfactorily meet the new demands of the international society.
The CDs (Isle of Man, Jersey and Guernsey) have expressed their wish to continue developing their self-government, particularly at the international level. In this sense, they want to further develop their international identity and personality, and they propose three main adjustments (House of Commons Justice Committee, 2013, p. 35):
The speeding up of the process for extending treaties to the CDs at their request;
Their own international representation;
To negotiate and conclude international agreements in fields where they have a specific interest.
The UK recognises the Islands’ desire to develop their own separate international identity. However, the current mechanisms for increased international participation of the CDs are not enough since decisions are made on the particular circumstances of the issue and require the constant engagement of the UK.
In this sense, if the CDs want to negotiate and conclude their own international agreements, or if they want to join an international organisation on their own, they need a letter of entrustment from the UK. Moreover, if the CDs want to participate in an international meeting they have to be included in the UK Delegation and finally, although the UK is tasked to represent the interests of the CDs their interests often diverge and naturally, UK interests trump those of the CDs.
There are different models of governance that could help these territories to improve their autonomy, particularly at the international level. Some involve a change of status, so they would be more difficult to achieve, while others would entail an upgrading of the current approach.
The models range from:
integration with the UK;
keeping the same status but granting more autonomy to the CDs;
agreeing free association with the UK ;
It is important to clarify that any update or change of their status needs the agreement of both the CDs and the UK. Indeed, this is a key issue to consider.
This paper argues that the preferred option would be to move to Free Association, since this is the status more in keeping with these territories’ political identity and legal peculiarities and is more respectful of the historical ties between the CDs and the UK.
At the same time, this is the status that better conveys the territories’ requests to further develop their autonomy and international identity. Therefore, if the CDs opt for a Free Associated State (FAS) formula, they would enjoy a higher level of self-government both internally and internationally, without relinquishing their link with the UK.
A FAS is a status by which the dependent territory freely and voluntarily agrees to pool part of its sovereignty and associate with a sovereign state, normally through a constitutive treaty. In return, the associated state receives political, commercial, fiscal or social advantages, such as dual citizenship, free market access, the same currency, certain tax exemptions, tax rebates or certain social benefits.
The degree and types of advantage, as well as the degree of power conferred, depends on what the parties agree. Normally, the associated state transfers powers in the areas of defence and international relations. However, FAS status does not designate a uniform reality, but a heterogeneous one. This is particularly the case regarding the special connection between each FAS and the state with which it is associated, as well as the type of free association agreement that each FAS concludes.
Generally, these agreements are embodied in an international treaty, which establishes the terms of the association, the way powers are shared between the two parties and the possibility of withdrawal, according to various requirements.
There are different examples of FAS in the international community. For instance, the Cook Islands and Niue or Micronesia - the first and second associated with New Zealand, and the third with the US.
There are significant differences at the internal level between the CDs and FASs that would make switching to FAS status desirable.
Unlike the FASs, where the principal state can only legislate for the smaller or associated state in those areas that it has competences, the UK Parliament has a paramount power to legislate for the CDs.
Apart from legislating in the areas where the UK has competence: defence, nationality, citizenship, succession to the Throne, extradition and broadcasting, UK legislation can be extended to the CDs if UK Government departments consider it necessary or if they have received a request from a Dependency to do so.
On this issue, the Royal Commission on the Constitution concluded that “in the eyes of the courts (the UK) Parliament has a paramount power to legislate for the Islands in any circumstances”. Nevertheless, it also stated that this should be restricted to the considerations of “good government”.
In other words, the UK Parliament should only legislate following a fundamental breakdown in public order or endemic corruption in the government, legislature, or judiciary of one of the Dependencies.
Although this is a subsidiary power, it is very restrictive in terms of these territories’ autonomy; since, in practice, it means direct rule from Westminster and the temporary suspension of the CDs’ self-government if the UK regards this as necessary.
Thus, suspension is subjected to the UK’s unilateral interpretation of what good government means and when this is breached. Since there is no legal precision of the circumstances that entail a break of good government, this is a vague and discretional power that the UK retains.
Another important difference with the CDs is that the FAS can be represented in the parliament of the state with which it is associated. It is true that not all of the FASs have a representative; it depends on the nature of their association agreement but becoming a FAS would enable this option.
At the international level, Keitner explains that multicultural societies can and do flourish ; but when territorially distinct people with their own culture, history, and sense of distinct identity are faced with the choice of enshrining that identity in a separate international status or merging that identity into an existing state, the human desire for recognition strongly suggests that the former option will appear preferable.
While many forms of federation preserve a large degree of internal autonomy particularly over cultural affairs, they rarely allow an international role for the component units of the federation.
For Keitne the most important feature of FAS status is not what competencies an associated state delegates or maintains, but the process by which the division of competencies is agreed upon, and the common understandings that underpin that division.
In other words, an associated state retains the right to modify its status through an act of popular will. As a matter of international law, a principal cannot dictate the future political status of its associate: an associate always has the unilateral right to withdraw from the association. This right of unilateral withdrawal distinguishes free association from other forms of power-sharing, such as federation.
In short, if the Isle of Man were to opt for a FAS formula, it would enjoy a higher level of self-government at both the internal and international levels, without relinquishing its link with the UK. The Island would have a relationship with the UK – of its choice – and simultaneously, they would be able to conduct their foreign affairs and thus increase their international sovereignty.
References:
House of Commons (2019). How autonomous are the Crown Dependencies? House of Commons Library. Retrieved from: https://commonslibrary.parliament.uk/%EF%BB%BFhow-autonomous-are-the-crown-dependencies/
House of Commons Justice Committee (2013). 'Crown Dependencies: Developments since 2010'. House of Commons Justice Committee. Tenth Report of Session 2013-14.
Keitner, C. (2003). Associate statehood: Principles and prospects. Faroese Law Review, 3(1), 13.
This paper is a summary of: Bosque, M. M. (2022). 'Questioning the current status of the British Crown Dependencies'. Small States & Territories, Vol. 5, No. 1, pp. 55-70.
https://www.um.edu.mt/library/oar/bitstream/123456789/94160/1/Questioning_the_current_status_of_the_British_Crown_Dependencies%282022%29.pdf
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