BEYOND PROTOCOL 3: A RULE-BOOK FOR
EU/CHANNEL ISLANDS TRADE
Victoria Bell, Matthew Berry, James Burke and Simon
Hodgett
The ending of
Protocol 3, the introduction of a new UK–Crown Dependencies customs union
and the extension of WTO membership are landmark developments in the trading
relationships of the Bailiwicks of Jersey and Guernsey, as is their
participation in the new UK–EU Trade and Cooperation Agreement. As the UK
embarks on its own international trade agenda, as an ex-EU member state, the
Channel Islands must identify new opportunities, build on their existing relationships,
and ensure that their constitutional positions are defended, and international
interests promoted.
Introduction
1 1 January 2021 marked the beginning of a
new chapter in the history of the Channel Islands. The Brexit “transition
period” (provided for in the UK–EU Withdrawal Agreement—“the
WA”) had come to an end. The UK’s new relationship with the EU, and
that of the Channel Islands, was now set out in the UK–EU Trade and
Cooperation Agreement (“the TCA”), which had been
announced on the afternoon of 24 December 2020. The nature and detail of the
final text was the result of intense negotiations which had begun earlier in
the year. The UK’s
relationship as a member state under the EU treaties and superintended by the
Commission and Court of Justice was replaced by a free trade agreement (“FTA”)
governed by international law. The Crown Dependencies’ relationships with
the EU— hitherto governed by Protocol 3 to the UK’s Act of
Accession—would, with their consent, similarly be underpinned by the
applicable provisions of the TCA.
2 New Year’s Day 2021 also saw a
customs union between the UK and the Crown Dependencies come into being and the
extension of the UK’s membership of the World Trade Organization to the
Channel Islands. The UK Government intends to pursue FTAs with other countries
and trade blocs around the globe. In many, if not all, cases, the Channel
Islands will be seeking inclusion in such FTAs when it is in their interests to
do so.
3 This article examines the political and
legal background to the Channel Islands’ new trade rule-book, reviews the
TCA’s key provisions so far as they apply to the Channel Islands, and
highlights those areas where the Channel Islands need to remain vigilant to
protect and promote their interests within the new trading context.
Background:
Protocol 3 to the UK’s Act of Accession 1972
4 Article
355(5)(c) of Treaty on Functioning
of the EU (TFEU) provided that the EU Treaties applied to the Channel Islands
and the Isle of Man only to the extent necessary for the implementation of
Protocol 3. Protocol 3 formed part of the UK’s Act of Accession 1972 and
provided that EEC measures (later EC and eventually the EU) relating to customs
matters, quantitative restrictions, and trade in agricultural products applied
to the Islands. This meant that, subject to Protocol 3’s requirements and
the duty not to discriminate between EU persons, the Islands remained free
to pursue their own policies as third countries (including for all aspects of
services).
5 In Jersey, the States Assembly implemented
the new arrangements by enacting the European Union (Jersey) Law 1973 which brought
into effect Protocol 3 and gave legal effect to the rights and obligations of
the Island under the EEC treaties. Similar legislation was enacted in Guernsey:
the European Communities (Bailiwick of Guernsey) Law 1973, following the
approval of the Protocol 3 relationship by the States of Guernsey, the States
of Alderney, and the Chief Pleas of Sark in 1971.
6 Whilst the provisions of Protocol 3 were
relatively concise, interpreting their application over the years became
increasingly challenging. Throughout its 47 years, Protocol 3 was never amended
to reflect changes to the EEC/EC/EU institutional models and their
competencies. Particularly after the introduction of the Maastricht Treaty,
which supported the introduction of the single market, the increased areas of
closely related competencies which fell to the EU institutions made it more
difficult to discern which aspects of EU law were directly applicable in the
Channel Islands. Nonetheless, it remained the cornerstone of the Channel
Islands’ customs and goods relationship with the EU from the early 1970s
onwards.
A new
foundation: the UK–Crown Dependencies customs union
7 The 2016 UK vote to leave the EU in the Brexit referendum and the subsequent evolution of Brexit
policy by HM Government posed an array of policy, legal and operational
questions that the Channel Islands would need to answer. This included
fundamental questions over their future relationship with the UK as their most
important trading partner. Royal Charters and constitutional
histories had underpinned these trading relationships for centuries and the
Channel Islands were keen to ensure that the UK’s withdrawal from the EU
did not adversely affect UK–Channel Islands trade or diminish their
ancient rights and privileges.
8 Therefore, after the Brexit referendum in
2016, and well before the TCA negotiations began, the Crown Dependencies and
the UK looked to enhance the continued free movement of goods by the formal
establishment of the UK–CD customs union (“the customs union”).
This was, in part, a move anticipated to protect Crown Dependency positions in
an unknown trading future.
9 The customs union was negotiated by all
three Crown Dependencies and the UK, and finally concluded by three arrangements
(“the customs arrangements”) signed in 2018. It is
against this backdrop that the TCA—and future FTAs—in the Islands
in relation to goods must be understood. The customs arrangements expressly recognize
that the UK and the CDs are separate customs territories which retain autonomous
control of their respective operations and legislation. However, they also
provide that customs law, regulations and practices should correspond in
several respects to enable the continuation of free trade between the members.
In other words, the customs solutions of the different jurisdictions need not
mirror each other, but rather there should be an equivalence of outcome—a
“correspondence” of effect—which both respects the autonomy
of member jurisdictions and accords to the relative needs and sizes of the
Islands. It is the operation of this balance, both practically and legally,
which will be of particular importance to the TCA and its continuing
implementation in the Channel Islands; the same will be of equal importance to
any future FTAs in which the Channel Islands take part.
10 The key elements of the UK–CD customs
union, or indeed any other customs union, are the elimination between its
members of tariffs or quotas on imports and exports, and the adoption of a
common external tariff in relation to third country (non-member) trade. This
means that free movement of goods between the Crown Dependencies and the UK is
legally guaranteed without requirements to demonstrate the origin of goods the
Islands export to the UK. It also requires the Crown Dependencies to apply the
UK’s global tariff or preferential rates for qualifying goods in
accordance with UK-signed FTAs, such as the “zero tariffs, zero quotas”
agreed in the TCA.
11 As the UK–CD customs union begins
to function in its new international context, “business as usual”
requirements will likely increase resource pressures, for instance, as regards
origin assessments, customs valuation, and compliance with various regulatory
requirements (although it is important to note that the customs arrangements do
not cover regulatory matters). The customs union will also need to ensure
continuing respect for the autonomy of its members. In the case of the Channel
Islands, express provision is made in the preamble to confirm that they build
on, but do not replace, the existing rights of access into the UK market
provided for in the Royal Charters. It is pertinent to note that the
continuation of the respective arrangements and their implementation remain
within each jurisdiction’s control, as does the ability to terminate.
An international framework: World Trade Organization
extension
12 In readiness for life after Protocol 3,
and bearing in mind the UK’s stated international trade policy
aspirations, the Channel Islands resumed engagement with HM Government about
the extension of WTO membership. The Isle of Man had enjoyed extension of the
WTO agreements from 1997 but, for the Channel Islands, WTO involvement had
never progressed beyond inclusion in the original General Agreement on Tariffs
and Trade (GATT) in 1948. The discussions were ultimately successful and, like
the customs arrangements, the UK’s extension of the WTO agreements to the Channel Islands
came into effect immediately after the end of the transition period.
13 The extension of the UK’s
membership of the WTO to the Channel Islands means that the entirety of the
core WTO agreements, including GATT, the General Agreement on Trade in Services
(GATS), the Agreement on Trade-related Intellectual Property Measures (TRIPS)
and the Agreement on Trade-related Investment Measures (TRIMS), all now apply.
Consequently, the Channel Islands operate from 2021 within a complex
rules-based trading system, governed by the requirements of international law.
Accordingly, Jersey and Guernsey must comply with the various obligations that
flow from this and, in turn, will be afforded the protections that the system
offers. WTO extension is also likely to place new “business as usual”
resource demands on Island administrations owing to the new review, reporting,
and engagement mechanisms that exist within the WTO regime. It follows that it
will be crucial in the first few years following this extension to establish
and refine ways of working with the UK, including those that ensure
representations—or even representatives—from the Channel Islands
are appropriately and effectively given a platform within the workings of the
UK Mission.
14 Aside from the benefits and burdens of
membership itself, the WTO agreements are also the basis for many provisions in
FTAs, including the TCA. Specific provisions in the WTO agreements are
frequently expressly incorporated into the FTA text as a baseline and then
embellished with further commitments, accommodations, easements, or liberalisations negotiated between the parties to the FTA.
Moreover, the WTO agreements remain the default for all those matters not
expressly covered by an FTA relationship. In this context, it is clear how
important it is for the Channel Islands to implement their WTO obligations,
since these are the lens through which the broader text of FTAs must be
understood, whether in respect of goods or services. This is the case for the
TCA, which expressly incorporates and embellishes many obligations from the WTO
agreements whose services-related
provisions do not extend to the Channel Islands.
Representing
the Channel Islands: TCA negotiations in brief
15 In preparation for Brexit and post-Brexit
trade, the Channel Islands had established the new customs arrangements and prepared
for a new international trading context through WTO extension. The latter was,
perhaps, particularly important because the successful negotiation of an FTA
with the EU was by no means certain and a “WTO Brexit”
(or some such moniker) remained a popular outcome for many in the UK. Whilst
what might be called “political Brexit” occurred on 31 January 2020
when the UK withdrew from the EU as a member state, “economic Brexit”
was not to take effect until the end of the transition period. This was because
the WA provided for the UK’s continued participation in the EU Customs
Union and Single Market and this included the Islands as provided for in
Protocol 3.
16 The UK published its “Approach to
Negotiations” on 27 February 2020. As far as the Channel Islands were
concerned, the approach said:
“11. The Government will act in these negotiations
on behalf of all the territories for whose international relations the UK is
responsible. In negotiating the future relationship between these territories
and the EU, the UK Government will seek outcomes which support the territories’
security and economic interests and which reflect their unique characteristics.”
17 In contrast to the above, the EU’s
negotiating mandate published on 25 February 2020 was silent on the Channel
Islands, although the WA provisions in respect of Northern Ireland and the
Sovereign Base areas in Cyprus were noted and Gibraltar was specifically
excluded. However, the EU’s draft legal text published on 18 March 2020 finally
resolved any ambiguity as to the EU’s starting point in the negotiations.
The EU’s draft art FINPROV.1(3): [territorial scope] stated that “This
Agreement shall not apply to: (a) the Channel Islands . . .” It
bears noting that, notwithstanding the proposed exclusion of the Channel
Islands from the draft agreement, Title V on Fisheries sought to include “the
waters adjacent to the Channel Islands” within the definition of “United
Kingdom waters” so that the Channel Islands would (notionally) have had
obligations under the treaty but no corresponding benefits(!).
18 Negotiations began on 2 March 2020 and
lasted until 24 December 2020, with nine formal rounds up to 2 October 2020.
Channel Islands officials, including government lawyers, were in regular
contact with their UK counterparts throughout the negotiations and were closely
involved as policy positions shifted, and requests were made or rebutted. Senior
politicians in the Islands were kept
briefed so that they were able to take rapid decisions if required.
CI–EU
relations: unpacking the TCA
19 The outcome of these negotiations for the
Channel Islands and their new relationship with the EU, to which this article
now turns, is perhaps similar in scope to that arising under Protocol 3;
however, the underlying nature of that relationship is now completely
transformed.
Scope of coverage and approach to inclusion
20 In
formulating their responses to the outcome of the UK referendum, the broad
policy positions of the Crown Dependencies were aligned and, in short, sought
to maintain continuity so far as possible and take advantage of any
opportunities that might arise from a new relationship between the UK and the
EU. As Protocol 3 had largely been limited to customs and goods, and given that
financial services are central to the economies of the Channel Islands,
exploring a closer relationship in relation to trade in services was of obvious
interest.
21 However,
owing to the EU’s own political mandates and negotiating principles, in
particular that new (or even the same) benefits could not arise from Brexit,
the scope of the Channel Islands’ inclusion in any FTA was likely to be
limited. It followed that a “chapter-by-chapter”
approach to inclusion in goods-related chapters of an agreed text would be the
starting position for developing a specific form of inclusion for the Islands.
In addition, the language of any territorial scope provision would, from the
outset, need to ensure respect for the constitutional position of the Channel
Islands vis-à-vis the UK
whilst maintaining a sense of proportionality and practicality.
Application to the Crown Dependencies
22 At art FINPROV 1(1)(b) (territorial
scope), the TCA states that the agreement applies to the territory of the
United Kingdom. Article FINPROV 1(2) (territorial scope) then provides for the
Crown Dependency nexus:
“This Agreement also applies to the Bailiwick of
Guernsey, the Bailiwick of Jersey and the Isle of Man to the extent set out in
Heading Five [Fisheries] and Article OTH.9 [Geographical application] of
Heading Six [Other provisions] of Part Two of this Agreement.”
23 Heading Five (fisheries) will be
considered separately below. Article OTH.9 (geographical application) of
Heading Six is concerned with the application of certain provisions of the TCA
relating to trade in goods to the Crown Dependencies; paras (3)–(5) of art
OTH 9 are crucial in this regard. The provisions under the TCA which now apply
to the Crown Dependencies are as follows:
(a)
Title I (trade in goods), including:
ii(i) Chapter 1: National treatment and market
access (“NTMA”)
i(ii) Chapter 2: Rules of origin
(iii) Chapter
3: Sanitary and phytosanitary measures (“SPS”)
(iv) Chapter 4:
Technical barriers to trade (“TBT”)
i(v) Chapter 5: Customs and trade facilitation.
(b)
The protocols and annexes to these chapters, namely:
i(i) All annexes
of annexes from ORIG-1 to annex TBT-ZZ inclusive; and
(ii) The
Protocol on Mutual Administrative Assistance in Customs Matters (“the
PMAA”).
24 A detailed exploration of these
provisions is perhaps unnecessary. However, in summary, the chapter on NTMA
contains general principles and requirements concerning trade in goods,
including that trade between the parties to the TCA should be tariff free and
quota free. The chapter on rules of origin provides criteria for determining
whether products should treated as originating within the parties’
territories, including the Channel Islands, and can benefit from the
tariff-free access. The chapters on SPS and TBT are concerned with regulatory
standards in respect of agri-food and manufactured goods. These require that
checks on goods crossing the border should be applied only to the extent
necessary, based on international standards or scientific evidence and should
not give rise to unjustified restrictions on trade. The customs and trade facilitation
chapter sets the terms for administrative and practical cooperation between the
customs authorities in the UK, including the CDs, and EU. In this regard, it
builds on several international instruments on customs-related issues. It is
supplemented by the PMAA.
25 In essence, these obligations are
applicable to the Channel Islands to the same extent as to the UK, subject to
some specific provisions described below relating to their operation.
Protecting the constitutional position of
the Channel Islands
26 To ensure consistency with the UK–CD
constitutional positions and the customs union, and at the request of the Crown
Dependencies, it was made express in art OTH 9(3) and (5) that the Islands are
themselves responsible for the application and implementation of each of these chapters,
as well as their protocols and annexes, in their respective territories. This
is because the Crown Dependencies have always enjoyed autonomy in the conduct
of their internal affairs. Whilst the UK ultimately remains accountable as a
matter of international law for compliance by the Crown Dependencies, it is for
the Islands to determine how they comply, and the methods, engagement and types
of legislation which inform their domestic decisions. Crucially, this approach
avoids any implication that the UK, by virtue of its responsibility for the TCA
in international law, should have any control over decisions to be taken within
the Islands. This is made even more explicit for “customs authority”
(a defined term underpinning chapters 1, 2 and 5), which must be read as
meaning Island customs authorities only. Such an amplification is not required
for the purposes of chapters 3 [SPS] and 4 [TBT] and the annexes to those chapters
because provisions therein do not proceed by reference to a single authority;
however, the basic position—that respective authorities in the Crown
Dependencies are responsible for any application and implementation of these chapters—remains.
27 To reflect the Channel Islands’
interests and constitutional position, it was also negotiated that certain
provisions in Title I [trade in goods] should expressly not apply to the Channel Islands. Accordingly, art CUSTMS.9 [authorised economic operators (AEO)] of Chapter 5 [customs
and trade facilitation] and the associated annex ANNEX
CUSTMS-1 [authorised economic operators], as well as
the protocol on administrative cooperation and combating fraud in the field of value
added tax and on mutual assistance for the recovery of claims relating to taxes
and duties, do not apply to the Bailiwicks of Guernsey or Jersey. The Channel
Islands do not currently operate AEOs, so that inclusion of these provisions
would be unnecessary and, potentially, onerous for the Islands. In addition, as
the Channel Islands are fiscally autonomous, any such inclusion of tax-related
provisions (which would more usually be dealt with on a bilateral basis under
the auspices of the OECD), would clearly be inappropriate. Instead, the UK made
a declaration, with the Channel Islands’ consent, that the Islands would (i) be open to future inclusion in provisions relating to
AEOs, and (ii) endeavour to establish separate
bilateral arrangements directly with the EU to co-operate on the tax-related
matters.
Fisheries
28 The fisheries-related provisions are
contained in Heading Five (fisheries) of the TCA. In many ways, it might be
said that this heading provides a form of self-contained code with its own
provisions relating to scope of application, access to waters, dispute
resolution, and termination. An additional key EU negotiating principle was
that satisfactory arrangements would be required for both trade and fisheries
if there was to be any agreement overall.
29 As can be appreciated from the above, the
Crown Dependencies are largely subject to the same obligations as the UK in
relation to customs and goods provisions. This may be contrasted with the
position for fisheries where there is some commonality but where the
obligations of each Crown Dependency are notably distinct. However, the new
fisheries arrangements under the TCA are also very much linked to their
predecessor regimes, which were as follows:
Bailiwick of
Jersey
30 In Jersey, the Granville Bay Agreement (“GBA”)
was a treaty made between the Governments of the United Kingdom and the French
Republic concerning fishing in the Bay of Granville. The agreement came into
force on 1 January 2004 and provided for access to waters within the Granville
Bay area on a zoned basis, including to Jersey territorial sea beyond three
nautical miles. The regime under the GBA was established on the principle of “joint
management” of the fisheries resource in the Granville Bay area. This
meant that measures brought into effect in Jersey territorial waters which
affected access for French fishermen were also subject to the views of the
Joint Management Committee established under the GBA. Under these arrangements
the French fishing authorities were responsible for licensing their vessels to
fish in Jersey waters covered by the GBA.
31 It must be noted at this point that the
TCA’s provisions do not affect any of Jersey’s pre-existing
maritime boundaries or sovereignty over its neighbouring reefs. This is because
the Island’s boundaries were addressed in a separate agreement between
the UK and France (“concerning the Establishment of a Maritime Boundary
between France and Jersey” (“MBA”)).
While this was concluded at the same time as the GBA, the purposes and effects
of the MBA were distinct as it established definitively the maritime borders
between the UK and France in the Granville Bay area for all purposes and not
just for fisheries access. Further, with regard to Jersey’s territorial
sovereignty over the rocks of its offshore reefs, it is important to note that art
FISH 19(2) does not affect or question Jersey’s territorial sovereignty
as was determined by the International Court of Justice (Minquiers
and Ecrehos) in France
v United Kingdom, or indeed the effect of
the Territorial Seas Act 1987 (Jersey) Order 1997 with regard to the extent
of the Island’s territorial waters.
Bailiwick of
Guernsey
32 In
contrast, the London Fisheries Convention (“LFC”) of 1964 provided
for fishing access in Guernsey waters based on historic fishing activity in the
period 1953–1962. In practice, this permitted French vessels to fish for
crab and demersal species in a designated belt between 6–12n/m from the
baseline.
33 The
UK denounced the LFC on 3 July 2017, to take effect after two years or the date
on which the UK withdrew from the EU (whichever was the later). Therefore, the
denunciation took effect on 31 January 2020. Whilst fishing access for EU
vessels in UK waters during the transition period was continued by the
Withdrawal Agreement, the relevant provisions did not cover the Bailiwick.
Therefore, the Bailiwick authorities unilaterally put in place an interim
regime that allowed continued access for French vessels to provide stability
and continuity during the transition period.
New arrangements
34 Article FISH 10 of the TCA is the key
provision replacing previous fishing access arrangements for EU vessels in
Crown Dependency waters (and for Crown Dependency vessels in EU waters), with a
regime based on vessels’ recent “track record” of fishing
activity. Article FISH 10(1) states that the access permitted to territorial
waters from 1 January 2021 should reflect the “extent and nature”
of fishing activity by “qualifying vessels” (those fishing for more
than ten days) that can be “demonstrated” to have taken place under
preceding treaty arrangements (such as the GBA for Jersey and the LFC for
Guernsey). Only fishing activity during a specific period from 1 February 2017
to 31 January 2020 is relevant to assessing track record (i.e. any one of the three-year periods preceding the UK’s
departure from the EU on 31 January 2020).
35 The effect of these quite nuanced
criteria will be the creation of a static “pool of access” which
will provide certainty and stability for fishing communities in the Channel
Islands, Brittany and Normandy. Once the pool is established, vessels wanting
to fish in Channel Islands’ waters will require a licence from the
relevant jurisdiction. The Channel Islands will be responsible for the
licensing regime applicable in their respective territorial waters, as well as
taking unilateral but objective, non-discriminatory measures to ensure the
sustainable use of their marine resources. For Jersey this is a significant
improvement in the level of control over the management of the fishery compared
with the arrangements under the GBA.
36 At the time of writing detailed work is
ongoing in the Channel Islands to implement the fisheries elements of the TCA
in collaboration with the UK Government, EU Commission and French fishing
authorities and a full assessment of the effect of the TCA on fisheries’
management in the Channel Islands would be premature.
Constitutional
vigilance: securing Channel Islands’ interests under the TCA
Governance
37 As noted above in relation to the WTO,
particular attention must be paid to securing and maintaining an appropriate
representative voice in the institutions established by the TCA and the ability
to participate appropriately in any trade disputes which may involve Crown
Dependency measures. The Specialised Committees and
the Partnership Council are the mechanisms for developing trade policy and
practices between the parties to the TCA and these will be key in determining
the scope and application of the TCA in the future. In terms of its enforcement
mechanisms, the Crown Dependencies will need to work closely with the UK to
protect their interests in these Committee structures and in the event of any
dispute concerning the application of the TCA. This is a wholly new position
for the Islands compared with that under Protocol 3, where relationships gave
rise to rights that were enforceable under EU Law in Crown Dependency courts
and in the courts of EU Member States, including the UK, as well as before the
CJEU.
38 In order to mitigate any risks to their
autonomy, the Islands intend to agree and refine effective arrangements with
the UK on consultation, engagement and representation to ensure that Crown
Dependency interests will be protected and promoted throughout the new TCA
relationship. For this purpose, commitments were sought from and given by the
Lord Chancellor prior to the Channel Islands giving their consent to extension
of the TCA, that the UK would respect the constitutional positions of the
Islands and support the development of new arrangements to ensure that their
interests are protected. Whilst this is significant, such arrangements or
commitments are yet to be tested and, of course, are not legally binding in
international law terms. The Crown Dependencies will need to engage positively
with the UK government and trading partners, and remain vigilant to ensure that
their autonomy and economies are safeguarded.
Legislative and policy development
39 It is worth noting that for both
Bailiwicks the transition from their relationship with the EU under Protocol 3
to their new relationship under the TCA has entailed a very substantial
legislative exercise, which in some respects will continue beyond 1 January 2021.
Implementation of the UK–CD customs union, the TCA, and other FTAs in due
course will require a programme of policy and
legislative development to ensure that the Channel Islands fulfil their
commitments and maintain their rights of access to foreign markets. The Channel
Islands will need to use the new dedicated forums for dialogue with the UK and
other trading partners established in the context of these agreements to ensure
they provide input in the development of new trade policies by the UK and EU.
This will particularly be the case with developments affecting SPS and TBT
rules, which are critical to maintaining access to markets. To this end the
Islands’ governments may need to build on the resources employed through
the Brexit process. The Channel Islands have made
great progress in laying foundations for constructive dialogue under the TCA;
it is now vital that those mechanisms are used to best effect to advance their
interests as part of the burgeoning UK trade agenda.
40 It is important to note that TCA’s “Chapter-by-Chapter”
approach to the application of goods, but not services, will present some
challenges for policy makers and legislators. As seen in relation to Protocol
3, distinctions between goods (and now services) that are covered by an
agreement and those that are not may not always be easy to distinguish in
practice. While the TCA is now applicable to the Channel Islands in respect of
trade in all types of goods, trade in many high-value technology goods is
closely associated with the supply of services and qualified persons to support
the use of those goods. Thus, the Channel Islands exclusion from the services
aspects of the TCA, while unavoidable, has the potential to give rise to
ambiguities in future if the provisions are not periodically reviewed to keep
pace with changes in economic activity.
41 Furthermore, in the context of
TCA-related services (and for any other FTAs later entered into), it may become
increasingly important to understand where the WTO obligations in relation to
services (which extend to the CDs) end, and where the UK’s obligations
under the TCA or another FTA on services (which do not or may not extend to the
CD) begin, particularly when considering the enforcement of obligations and
remedies. Accordingly, as the UK–EU relationship in this area develops,
the Islands may need to ensure that distinctions between these obligations are
clearly understood both domestically, and by the UK and the EU or other trading
partners.
Conclusion
42 In light of the result of the UK’s
2016 referendum, the Channel Islands had little choice but to engage
constructively with the UK and EU to develop new trading relationships with
both. However, as subsequent developments
illustrate, both jurisdictions have seized the opportunity to develop new
relationships that provide a platform for their trading interests to be
advanced, working in close partnership with the UK Government, but in a way
that is consistent with their constitutional autonomy. The extension of the WTO
agreements to the Bailiwicks is emblematic of their ambition and recognition as
modern, global trading nations. One of the additional benefits of the process
outlined in this paper has been the clear recognition of the Crown Dependencies’
intentions to develop their international identities, and the need for them to
give informed consent before any international obligation is extended to them
by the UK.
43 It is important that the conclusion of
the TCA is recognised as not being the end of a
process, but as a point of transition to a new phase in the development of the
Channel Islands’ trading relationships. To maximise
the opportunities and mitigate the risks that these new relationships present,
the Islands will need to continue to develop new ways of working with the UK,
EU and each other, something that their recent experience means they are well
placed to do.
Victoria Bell is
a legal adviser in the Law Officers’ Department, Jersey specialising in international trade law matters who has
advised throughout the Brexit process and during TCA
negotiations.
Matthew Berry is
a senior legal adviser in the Law Officers’ Department, Jersey, leading
the Advice team. He advised throughout the various stages of Brexit and TCA negotiations.
James Burke is a Brexit lawyer in the Law Officers’ Department,
Guernsey, providing support in Brexit, post-Brexit and international trade matters.
Simon Hodgett is a Crown Advocate in the Law Officers’
Department, Guernsey, providing support on Brexit-related
matters, with a focus on customs and fisheries.