By Markus
W. Gehring, Lecturer in Law, University of Cambridge
On the 27th February 2018, the
Court of Justice of the European Union (CJEU) rendered its judgment in a
preliminary reference from the High Court of England and Wales in the case
C-266/16 Western Sahara Campaign UK v. HM Revenue and Customs, Secretary
of State for Environment, Food and Rural Affairs. The Grand Chamber, in
this case, closely followed the analysis it had made in C-104/16 P Council v. Front Polisario on which I
commented here.
The Western Sahara Campaign UK is
a voluntary organisation supporting the right of the people of Western Sahara
to self-determination. Morocco considers Western Sahara an integral part of its
territory though internationally few countries recognise this claim. The
Western Sahara Campaign UK brought two actions before the High Court (Queens
Bench – Administrative Division). The first one of their action challenges the
importation of goods certified as originating from Western Sahara as if these
goods originated from Morocco. The second one challenges UK fisheries policy as
it includes waters adjacent to Western Sahara. The 2007 Fisheries Partnership
Agreement and the 2013 Protocol
between the European Union and the Kingdom of Morocco setting out the fishing
opportunities and financial contribution provided for in the Fisheries
Partnership Agreement between the European Union and the Kingdom of Morocco
don’t define the exact geographical scope, which lead the campaign group to
launch their High Court action.
After the leading judgment in Council v. Front Polisario, the
referring Court withdrew its first two questions concerning goods originating
in Western Sahara. There were two remaining questions before the CJEU:
1. Is the Fisheries Partnership Agreement
valid in light of self-determination and to what extend was it concluded to
benefit the Saharawi people?
2. Is the applicant entitled to
challenge the validity of EU acts based on breaches of international law allegedly
committed by the EU when Morocco is not part of the proceedings?
The second question, in the eyes
of the Court, required no answer because the Grand Chamber did not find the EU
had violated international law
As to the first question, the
Court, as it did with the previous judgment in Polisario, handed a pyrrhic victory to Morocco when it ruled that
neither the Fisheries Partnership Agreement nor its Protocol setting out
fishing opportunities and financial contributions between the EU and Morocco
were applicable to the waters adjacent to the territory of Western Sahara. As a
result, contrary to what the applicants argued, none of the relevant EU
Regulations implementing the Agreement and the Protocol were invalid through
the application of Art. 3(5) TEU.
Once again, neither Morocco nor
the applicants will be very happy with this further judgment on this
diplomatically charged question. The outcome takes the earlier Polisario case to its logical conclusion
and should as such not come as any surprise to observers. It is also in line
with the previous EU External Relations case law on the validity of principles
of customary international law.
It should be noted that the
Commission, the Council and three of the main fishing Member States intervened
in this case.
AG Wathelet’s Opinion
AG Wathelet, in his Opinion issued
on 10 January 2018, concluded that the case was admissible and that both the
Fisheries Partnership Agreement and the Protocol were invalid. He analysed both
the Agreement and the Protocol carefully and applied a thorough analysis of the
applicable international law. Relying on ATAA,
the AG rejected the submissions by the Council, Commission and the three
intervening Member States, saying that their argument would mean that no
individual could ever rely on rules of customary law, or indeed jus cogens, to challenge the validity of
EU acts. He rejected said arguments and proceeded to identify those rules of
customary law which are binding on the EU and are unconditional and sufficiently
precise, so that nature and broad logic does not preclude judicial review. He
concluded that both EU-Morocco treaties were invalid because they constituted a
“breach the European Union’s obligation to respect the right to
self-determination of the people of that territory and its obligation not to
recognise an illegal situation resulting from a breach of that right and not to
render aid or assistance in maintaining that situation. Furthermore, as regards
the exploitation of natural resources of Western Sahara, the contested acts do
not put in place the necessary safeguards in order to ensure that that
exploitation is carried out for the benefit of the people of that territory.”
(para. 293).
The Court did not follow the
legal arguments of AG Wathelet though it was clearly influenced by his strong focus
on the human rights and jus cogens dimension
of the case.
Admissibility
The Council questioned the
admissibility of the case because it considered that the Court has no
jurisdiction to consider the validity of international agreements, such as the
Fisheries Partnership Agreement. The Court dealt with this objection swiftly by
saying that as in previous cases (Racke,
Brita)
international agreements concluded by the EU count as acts of the institutions
of the EU. These agreements must comply with procedural rules, the Treaties and
the constitutional principles from them, as well as “international law in its
entirety, including not only the rules and principles of general and customary
international law, but also the provisions of international conventions that are
binding on it.” (para. 47, citing Kadi
and ATAA).
The Court also clarified that a
preliminary reference, although not capable of challenging an international
agreement directly, must be understood to be challenging the EU act approving
the conclusion of this international agreement. Interestingly the Court here
did not engage with the question of whether an action for annulment would have
been more appropriate in this case (although clearly out of time). As for AG
Wathelet, he only referred to the well-known phase of a complete system of
legal remedies (citing the recent Rosneft case (C‑72/15, EU:C:2017:236,
paragraph 66 and the case-law cited)).
Merits
The CJEU arguably took a bit of a
short-cut in their analysis of the legal situation. The Court concluded broadly
that, through the general rules of interpretation of international law, neither
the Fisheries Partnership Agreement nor the Protocol applied to Western Sahara.
As such, these were not invalid on the ground of Art. 3(5) TEU and general
principles of law, as the applicants had argued.
The Court relied on the preamble
to the Partnership Agreement in the Fisheries Partnership Agreement and Art.
31(3)(a) of the Vienna
Convention on the Law of Treaties to conclude that the terms in both
agreements should be interpreted harmoniously.
The Court then relied heavily on
the Polisario judgment arguing that
the words 'territory of the Kingdom of Morocco' or 'territory of Morocco' had
to be interpreted as not to include territories of Western Sahara as these were
not territories over with Morocco ‘exercises the fullness of the powers granted
to sovereign entities by international law’, as was the case with the
EU-Morocco Association Agreement (para 62). It added that the inclusion of
Western Sahara in the scope of the Association Agreement would be contrary to
‘certain rules of general international law’, in particular the principles of
self-determination and pacta tertiis.
The Court then proceeded to
interpret the reference in the Fisheries Partnership Agreement to ‘waters
falling within the sovereignty or jurisdiction’ of Morocco. Taking into account
the UN Convention
on the Law of the Sea (UNCLOS), a state has sovereignty over its internal
waters and territorial sea and has jurisdiction over the exclusive economic
zone.
Finally, the Court rejected the
argument that the term 'jurisdiction' should be interpreted as based on a
special meaning, in accordance with Art. 31(4) of the Vienna Convention. The
Council and the Commission had argued in favour of seeing Morocco as a ‘de
facto administrative power’ and as such exercising ‘jurisdiction’ over waters
adjacent to Western Sahara. The Court, relying on Morocco’s categorical denial
that it was either an occupying power or an administrative power, concluded
that there was no special meaning intended by ‘jurisdiction’.
The Court also rejected the
argument that the expression ‘Moroccan fishing zone’ in the 2013 Protocol would
include waters adjacent to Western Sahara. Even maps identifying waters off the
coast of Western Sahara as part of the ‘Moroccan fishing zone’ did not change
this interpretation as those maps were submitted after the Agreement was concluded
and thus did not form part of the original agreement and could not lead to an opposite
conclusion.
As such, neither the Fisheries
Partnership Agreement nor the 2013 Protocol included the waters adjacent to
Western Sahara in their scope.
This decision will please neither
side in the dispute. Western Sahara Campaign UK had argued that goods from
Western Sahara were reaching the UK unchecked without being rejected. According
to the organisation, the current agreements made it impossible to reject goods from
those parts of Western Sahara under Moroccan control. An additional question
revolves around how the effective prohibition of EU fisheries off the coast of
Western Sahara will assist the population living there or enable the
realisation of their human rights, which the Court had put forward in Polisario. Morocco will feel, yet again,
that it was not a party to the original dispute and was prevented from defending
its interests before the Court.
This judgment, in many ways,
upholds the strict conclusions of the Polisario
decision. It might further complicate EU-Morocco relations as EU fishing boats
can no longer rely on the Fisheries Partnership Agreement to fish off the coast
of Western Sahara. The High Court is now in the unenviable position to decide
their case presumably by rejecting the claim while the underlying question, of
Western Sahara natural resources exports continues to pose challenges.
Had the Court of Justice followed AG Wathelet’s
Opinion, it would have opened a new chapter in the application of international
law to cases brought by individuals. Given that the Court came to the opposite
conclusion, it is hard to argue that his Opinion will provide guidance in the
future. It is to be hoped that a diplomatic solution may be found quickly before
EU-Morocco relations further deteriorate due to this series of cases.
*Many thanks to Anna Khalfaoui from
BIICL for her editorial assistance.
Barnard & Peers: chapter 24
Photo credit: Modern Ghana
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