Article: UK position in Independence for Bermuda

Article: UK position in Independence for Bermuda

Date: Last modified: Thursday, May 26th, 2005 8:03AM

Source: www.theroyalgazette.com - The Bermuda Royal Gazette

Link:

http://www.theroyalgazette.com/apps/pbcs.dll/article?AID=/20050526/NEWS/105260060

-- This is the full text of the response of the British Foreign

and Commonwealth Office to questions posed by the Bermuda

Independence Commission --

Introduction:

1. This paper sets out the position on a number of the issues

raised in discussion with the Bermuda Independence Commission during

its visit to London on 14-16 March 2005.

Test of Public Opinion:

2. As the grant of independence by the UK requires the prior

approval of Parliament, the UK Government need to be satisfied that, if a

territory moves to independence, it does so on the basis of the

clearly and constitutionally expressed wish of its people. The

move to independence is a fundamental step. Increasingly in the UK,

major constitutional issues of this kind are being put to a

referendum. At this time, the presumption of the UK Government is that a

referendum would be the way of testing opinion in those territories where

independence is an option. But a final decision on whether to go

the referendum route, and what form the referendum might take, would

need to be determined by the UK on a case by case basis, reflecting

the uniqueness and individual characteristics of each territory.

Procedure to be Followed After a Request for Independence:

3. Once it was established that there was a clearly and

constitutionally expressed wish for independence, a meeting

would be held in London between representatives of Bermuda and the FCO

with the object of reaching agreement on the list of topics for

discussion at the Constitutional Conference. The latter would be held at a

later date, again in London, the main business of which would be the

content of an Independence Constitution.

Legislation:

4. Neither the Bermuda Constitution Act 1967, nor the Bermuda

Constitution Orders 1968 to 2003 made under that Act, nor any

other UK legislation, prescribes how Bermuda's current relationship with

the UK may be terminated. An Act of the UK Parliament would be required

to end the responsibility of the UK for the government of Bermuda,

and to remove all limitations on the legislative power of the Bermuda

Legislature. The same Act would confer power on Her Majesty to

make an Order in Council containing the Independence Constitution. The

same Act would also make any necessary amendments to UK statute law

consequent on Bermuda's independence, and would deal with the

citizenship consequences in UK law. The Bermuda Constitution Act

1967 and Orders in Council made pursuant to that Act would be

repealed upon independence. Other pieces of UK legislation which form part of

the law of Bermuda (e.g. certain UK Acts and Orders in Council)

would remain part of the law of Bermuda until repealed or amended by

the Legislature of an independent Bermuda.

Citizenship:

5. Between 1983 and 2002 most people possessing British

nationality by virtue of a connection with Bermuda would have been British

Dependent Territories citizens, and some would have been British citizens,

Under the British Nationality Act 1981. The British Overseas

Territories Act 2002 renamed "British Dependent Territories citizens" as

"British overseas territories citizens". More substantively, that Act

provided that all British overseas territories citizens who had that

status by virtue of a connection with Bermuda automatically became British

citizens as well, with effect from 21 May 2002. The Act also

provided for the acquisition of British citizenship by persons born on or

after 21 May 2002 by virtue of defined connections with Bermuda. The

possession of British citizenship by any person by virtue of the

2002 Act does not depend on that person having acquired a British

citizen passport. Accordingly, the vast majority of persons possessing

British nationality by virtue of a connection with Bermuda are now

British citizens (as well as British overseas territories citizens),

irrespective of the passport they may hold and even if they hold

no passport; there may also be a few persons who are British

overseas territories citizens only, for example because they have been

naturalised or registered as such in Bermuda since 21 May 2002,

or because they have renounced their British citizenship but not

their British overseas territories citizenship.

6. The criteria for granting citizenship of the new state would

need to be discussed at the constitutional conference. The

nationality consequences of independence would be dealt with in the

independence Act of the UK Parliament and would therefore be looked at very

carefully. In the past, the usual practice was to withdraw

British nationality from the majority of those acquiring citizenship of

The new state on independence but to provide for its retention where

The person concerned had a residual connection - for example through

A parent or grandparent - with the UK or a place that continued to

Be what nowadays would be referred to as a British overseas

territory. We would not expect to take a different approach in Bermuda's case.

Dual Nationality:

7. A large number of countries, including some Commonwealth

countries, do not accept dual nationality and insist on persons renouncing

their other nationalities as a condition for retaining theirs. UK

nationality legislation contains no such provisions. It would be

entirely a matter for the Government of an independent Bermuda

to decide for themselves where the balance of advantage lay.

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Entry to the UK

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post-independence:

8. A national of Bermuda would be subject to the provisions of

the Immigration Rules which govern the entry to and stay in the UK

for various purposes (visit, study, work etc). The requirements vary

from category to category. Decisions on whether to introduce a visa

regime for a particular nationality are taken on the basis of the

immigration threat to the UK. A judgement could only be taken in respect of

Bermudian nationals after independence and based on the

Circumstances at that time. Factors that would be taken into account include

Any evidence of irregular migration (including asylum applications),

illegal working, overstaying by those who enter legally, the security

of the Bermudian passport and passport issuing arrangements, and

the adequacy of return arrangements for Bermudian nationals removed

from the UK.

Membership of the Commonwealth:

9. If Bermuda wished to be a member of the Commonwealth, it

would be usual for the legislature to pass a resolution in favour of

Commonwealth membership.

Admission to the Commonwealth is a matter for collective

decision by the existing members. Consultation is carried out by the

Commonwealth Secretary- General. If an application was made before

independence (as is usual), it would be appropriate for it to be made through the

British Government, which would convey the request to the Commonwealth

Secretary-General. If the application was made after independence, the

Prime Minister of the newly-independent country concerned could

approach the Commonwealth Secretary-General direct, or might ask

a Commonwealth member to approach the Commonwealth Secretary-General for

him.

10. At the 1997 CHOGM (following Mozambique's request to join),

the criteria for Commonwealth membership were spelt out more

clearly. The qualifying criteria are that "an applicant country should, as a

rule, have had a close constitutional association with an existing

Commonwealth member state; that it should comply with Commonwealth

values, principles and priorities as set out in the Harare  Commonwealth Declaration of 1991; and that it should accept Commonwealth norms and conventions". These would include

accepting the Queen as Head of the Commonwealth. Bermuda would also have to

contribute to the Commonwealth budget.

11. If it was Bermuda's intention to become a monarchial member

of the Commonwealth, recognising The Queen as Head of State, the

Bermudians would need to select their first Governor-General. Unless the

Independence Constitution provided otherwise, he or she could only be

appointed by The Queen at the request and on the advice of the Premier

of Bermuda.

Appeals to the Privy Council:

12. It would be open to an independent Bermuda within the Commonwealth

to choose whether it wished the Privy Council to continue as Bermuda's

final court of appeal. Even if Bermuda chose to become a republic at

independence, on the basis of previous precedents arrangements could

be made with the UK Government for final appeals to continue to lie to

the Judicial Committee of the Privy Council, and provision would need

to be included in the independence Act of Parliament to deal with that.

Consular Assistance:

13. In Commonwealth countries where another Commonwealth country

maintains no diplomatic or official representation, the host

Government is responsible for consular or quasi-consular services to

citizens of Commonwealth countries.

When a host Government does not automatically accept that

responsibility, it is for unrepresented Commonwealth countries

to make bilateral arrangements for the protection of their nationals,

either with the host Government or with another country which is

represented.

The United Kingdom continues to represent the interests of

newly-independent former British territories for up to one year

after independence. Apart from this concession, the United Kingdom

takes no responsibility for other Commonwealth citizens in Commonwealth

countries. If a Bermudian were to seek assistance from a British

mission in a Commonwealth country, he would be referred to the

host Government. Likewise, any unrepresented Commonwealth nationals

in difficulty in Bermuda would be the responsibility of the

Bermudian authorities.

14. British Missions have traditionally been responsible for the

protection of the interests of all unrepresented Commonwealth

countries in foreign countries, with certain exceptions. In some

cases this is shared with other Commonwealth countries.

15. At present (given our own resource constraints we cannot

guarantee that this will continue), the UK will assist unrepresented

Commonwealth nationals as much as we can, by providing general

advice, access to the lists of lawyers, interpreters, doctors and

hospitals which we make available to British nationals, visiting those in

prison where it is practicable and passing on requests for further

assistance to the Government of the Commonwealth national. However, no

financial assistance is given to, or incurred on behalf of, an

unrepresented Commonwealth national without the prior authority of their

country's government (who are expected to meet such costs without delay).

16. If an independent Bermuda did not opt to join the Commonwealth, we

would consider providing assistance to Bermudian nationals for a

limited transitional period, certainly no more than one year after

which we would expect the Bermudian authorities to negotiate other

arrangements for assisting their nationals overseas, either independently, with the UK, or with some other friendly country.

Flag and National Anthem:

17. It would be for Bermuda to design and compose respectively a flag

and national anthem for the independent country. If Bermuda opted for

Realm status both flag and national anthem would need Royal Assent

obtained via the Governor if their form was decided before independence or via the Governor-General thereafter.

Maritime Issues Shipping Register and Red Ensign Group

18. The Bermuda shipping register operates within the Red Ensign Group (REG) of

British shipping registers, which consist of the UK, the British overseas territories and the Crown Dependencies. Bermuda is designated by the UK Secretary of State for Transport as a `Category 1' shipping register (ie unrestricted by weight or type of vessel). The

Secretary of State has delegated responsibility to the Maritime and Coastguard

Agency (MCA) for oversight of the REG registers and ensuring that the highest international maritime standards are maintained consistently throughout the Group. The MCA carries out its responsibilities on the basis of Memoranda of Understanding signed with each of the REG

members.

The REG provides a forum for discussion and information sharing aimed at strengthening maritime relations and promoting best practice within the Group.

The REG focuses on development of technical and policy issues in the areas of maritime regulation, safety, security, pollution prevention, and the welfare of seafarers for ships on their registers worldwide and for visiting ships in their waters.

19. On independence Bermuda would withdraw from the REG. The United Kingdom would cease to have legislative oversight of Bermuda's maritime affairs and would no longer represent the interests of Bermuda in international discussions and negotiations, nor oversee its

compliance with international maritime conventions (e.g. Safety of Life at Sea (SOLAS), Marine Pollution (MARPOL) etc).

20. Given the long-standing maritime links between Bermuda and the UK it is feasible that existing contacts would be maintained in one form or another, at least in the short term. Technical advice and support is at present provided through the MCA on the basis of a service agreement. At independence the MCA, as an agency, could continue to provide its services to Bermuda, but that would need to be on an entirely commercial basis.

Fisheries:

21. Bermuda might wish to join various fisheries bodies such as NAFO (Northwest Atlantic Fisheries Organisation) and ICCAT (International Commission for the Conservation of Atlantic Tunas) in its own right, especially in the light of the likely outcome of the UN

Conference on Straddling Stocks. Bermuda would also probably wish to become a state

Party to the UN Convention on the Law of the Sea.

Aviation:

22. As a British overseas territory, Bermuda's aviation relations and international obligations are overseen by the UK. In many areas it has been possible to transfer operational responsibility and control to the Bermudian authorities. In October 2000 the UK and Bermuda agreed a statement that provides a mechanism for Bermuda's economic interests

to be protected and enhanced when the UK is taking part in international negotiations on air services.

23. At independence, Bermuda would become fully responsible for all liabilities and would have to arrange appropriate insurance cover. This would be particularly important as far as safety and operational oversight of the Bermuda Aircraft Register are concerned.

Bermuda would also have to decide whether to accede to the various international treaties and conventions, such as the Chicago Convention, but it would be almost impossible to maintain any level of international civil aviation activity without doing so.

Adherence to the Chicago Convention would require Bermuda to contribute to the

financing of the International Civil Aviation Organisation.

Bermuda's contribution would be about US$31,000 pa. Technical support and advice on aviation security issues, currently provided by the UK, would also cease.

24. None of the Air Services 24. None of the Air Services Agreements (ASAs) negotiated by the UK with other countries would continue to apply to Bermuda after independence.

Bermuda would have to negotiate its own network of bilateral ASA's (including with the UK). Services from the UK would no longer be Cabotage (that is, flights which begin and end in UK Territory).

UN Membership:

25. UN membership would be the natural course. Observer status is an option, but it should be noted that there are now no UN observers that are States.

26. To apply for UN membership, an independent Bermuda would need to write to the Secretary-General, who would refer the application to the Security Council, which in turn would recommend membership to the General Assembly.

Cost of UN Membership and Specialised Agencies:

27. Based on average GNP figures and the current UN scale of assessments, Bermuda could expect its annual contribution to the UN to be in the region of 0.012% of the total UN budgets. Bermuda's assessments for Regular and Peacekeeping budgets would be approximately US$200,000 and $350,000 respectively. The total for UN membership would therefore be about US$550,000.

28. An independent Bermuda might give consideration to membership of the following UN Specialised Agencies: ITU (International Telecommunications Union); UPU (Universal Postal Union); IMO (International Maritime Organisation); UNESCO (UN Educational, Scientific and Cultural Organisation); WHO (World Health Organisation); ILO (International Labour Organisation); WMO (World Meteorological Organisation); FAO (Food and Agriculture

Organisation); ICAO (International Civil Aviation Organisation); WTO (World Tourism

Organisation). An estimate for the total cost of membership of these agencies would be in the region of a further $450,000, for a total of US$1 Million.

29. In addition many member states give additional voluntary contributions to UN bodies and programmes which are of particular importance to them.

Defence:

30. This is an area that would need to be discussed during a constitutional conference.

The UK's existing responsibilities for the defence of Bermuda would cease with independence. The UK is not able to say what arrangement might be possible without knowing what Bermuda itself would wish to see.

Membership of NATO:

31. Bermuda is currently covered by the NATO umbrella under the NATO Treaty as a British overseas territory, north of the Tropic of Cancer. There is a Status of Forces Agreement (SOFA) extended to Bermuda. But if Bermuda became an independent country, then it would no

longer be covered by the NATO umbrella, nor would it have the Article 5 defence guarantee. (Only full members (or those territories who are defined in the Treaty) of NATO are covered under Article 5's collective defence clause.)

32. If Bermuda were to ask for membership status, then this would have to be considered on an individual basis. Bermuda would need to meet all of the NATO requirements for membership. This process can be lengthy - the current aspirants are some years along the path to

opening accession talks, which have yet to start.

33. Bermuda would not be eligible to join NATO's Partnership for Peace (PfP), as this is dependent on membership of the Organisation of Security and Co-operation in Europe (OSCE), of which Bermuda is not a member. But Bermuda could, in theory, engage with NATO as a

contact country. This is a loose engagement that has no formal standing, but does allow participation in some PfP activities on a case by case basis. Australia, New Zealand and Japan are designated contact country status. Such a relationship would be subject to North Atlantic Council agreement.

Treaty Succession:

34. Treaty succession is usually on the agenda of the Constitutional Conference, held after the Territory has indicated it wishes to become independent. At the Conference, all the political and legal implications are considered.

Customary International Law:

35. Under customary international law, a successor State is not obliged automatically to inherit treaty rights and obligations of an existing State.

36. It is accepted practice for a Successor State to deposit an instrument of Accession with the depositories for treaties on membership of International Organisations.

Unilateral Declarations:

37. In the past many new States have on independence given notice of their intentions concerning treaties applicable in respect of their territory immediately before independence by means of a unilateral declaration. Almost all the former UK dependent territories made

this unilateral declaration. The declaration is sent to the Secretary General of the United Nations and circulated to Members by him, followed by a disclaimer of responsibility by the United Kingdom.

Article 9 of the Vienna Convention on Succession of States in respect of Treaties provides that unilateral declarations do not alone effect a succession of treaty rights or obligations. Articles 27 and 28 of the Convention allow for a form of unilateral declaration

whereby the new Government may notify its intention to apply all treaties provisionally until it has had time to indicate to which of them it wishes to succeed on a more permanent basis. This notification would be effective vis-à-vis any party to a treaty which expressly

agreed to such provisional application or which by reason of its conduct was considered as having so agreed.

Treaty Lists 38. The UK Government would be able to provide Bermuda with a list of its international treaty obligations. This would draw upon information already posted on the FCO website (www.fco.gov.uk/treaty) , but much additional research would be necessary. It would not, however, be possible to guarantee that this list was fully comprehensive or accurate, though every effort would be made to render it so. Such lists cannot therefore be regarded as definitive, and have not been published.

Relations with the EU:

39. If an independent Bermuda had an interest in becoming a member of the ACP (African, Caribbean and Pacific group of states) and was successful in doing so, it would have a relationship with the EU as set out in the Cotonou Agreement. If it was not a member of the

ACP, Bermuda could benefit from the relationship with the EU that Small Island Developing States (SIDS) have. It would theoretically be possible for Bermuda to form an individual partnership agreement between itself and the EU. However, the case for doing this as

Opposed to joining an existing agreement like Cotonou would have to be very strong, and EU buy-in to this idea would most likely be limited.

Training and Development: Establishment of a Ministry of Foreign Affairs:

40. This is an area that would need to be discussed in the lead-up to independence or afterwards. Meanwhile DFID have advised that the BIC may wish to consult the Commonwealth Secretariat or CMPS (formerly the Civil Service College) for advice on public administration

training and development. Contact details for these organisations are: Commonwealth Secretariat, Marlborough House, Pall Mall, London SW1Y  5HX, UK customer.servicescmps.gsi.gov.uk

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CONSTITUTIONAL ARRANGEMENTS OTHER THAN INDEPENDENCE

Integration:

1. Integration into the UK would be a major step for any British overseas territory. It would mean the loss of the territory's separate constitutional status and of its separate legislative, executive and judicial powers and systems. Instead the territory would be

integrated into the UK's constitutional, political, economic and legal system,

and would be subject to UK legislation. This would involve application of the UK tax system, including income tax. It would also mean that the territory concerned would be subject to laws providing unimpeded access by both other British citizens based in the UK and

elsewhere, and European Union citizens. Integration into the UK would also involve integration into the European Union and (in the absence of exemptions, the negotiation of which could not be guaranteed) the full application to the territory of European Union law.

2. In recent years there has been no significant support for integration in any of the territories. The UK's policy is that integration is not an option which is on offer to the

territories. Free Association 3. The UK's approach was spelt out in a letter of 21

December 2004 from the Minister for the Overseas Territories, Bill Rammell to OT Chief Ministers. In this he said the UK Government, given its responsibilities to the British Parliament and internationally, could not accept "free association". As long as a

territory retained its links with the UK, the Government could not accept a situation whereby the territory could freely determine its own Constitution as suggested under UNGA Resolution 1541. Even if the respective powers of both parties were formalised in an

association agreement, the moral and political responsibility would still be on the UK to intervene if things went wrong, and the UK would remain internationally responsible for the territory. Therefore free association was not an option.

De-listing: UNGA Resolutions 1514(XV) and 1541(XV) 4. The UK's international responsibilities towards the British overseas territories are spelled out in Articles 73 and 74 of the UN Charter.

The UK Government fully meets the responsibilities placed on it by the Charter.

5. The UK does not consider itself bound by UNGA Resolution 1541(XV), which states that a full measure of self-government can be said to have been reached by: a) emergence as a sovereign independent state;

b) free association with an independent state; or c) integration with an independent state.

While General Assembly Resolutions can carry significant moral weight, they are not legally binding and cannot themselves modify the UK's international obligations. The UK Government does not believe that Resolution 1541(XV) exhausts the possibilities for de-listing

(ie the removal of a territory from the UN list of non-self-governing territories), as it implies. When considering de-listing, it is important to remember that it is only a procedural reflection of the substance of the relationship between the UK and the territory.

The UK Government considers it far more important to reach a constitutional arrangement that is acceptable to the territory and the UK.[-End]

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