Court of Justice further clarifies the application of the EU-Morocco Fisheries Partnership Agreement to Western Sahara

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

EU/Morocco relations and the Western Sahara: the ECJ and international law

Markus W. Gehring: University Lecturer, University of Cambridge; J.S.D. (Yale), LL.M. (Yale), Dr jur. (Hamburg), MA (Cantab); Deputy Director, Economic Law at CIGI 

On Wednesday 21 Dec 2016 the Court of Justice rendered its appeals decision in the case C-104/16 P Council v. Front Polisario. This was a Grand Chamber judgment under the expedited procedure which overturned the decision by the EU General Court in T-512/12 Front Polisario v Council decided a little over a year ago.

Background

The Front Polisario (Frente Popular de Liberación de Saguía el Hamra y Río de Oro) aims to end Moroccan presence in the Western Sahara territory and has been recognised internationally by over 40 countries with Algeria being regarded as its main backer. It had a difficult year (see here and here) after its leader died and Morocco, after a thirty-year absence from the African Union, applied to re-join (a vote will be held in January 2017). While Polisario did not win this case, the judgment will hardly be welcomed by Morocco either.

General Court judgment

As discussed by Geraldo Vidigal in EJILTalk, the decision by the General Court had been seen as an extraordinary victory by the Polisario as it was granted standing to bring a case against the Council decision concerning reciprocal liberalisation of certain agricultural products between the EU and Morocco (Liberalisation Agreement). The General Court recognised, contrary to objections by the Council and Commission, that Polisario had legal personality and could prove direct and individual concern (the standing requirement to challenge a decision in the EU courts, unless the challenger is an EU institution or Member State).

Polisario was concerned because the agreement, despite differing interpretations of its territorial scope between Morocco and the EU, was applied to Western Sahara. Polisario in particular argued that 140 undertakings based in Western Sahara were included in the EU Commission’s website list of approved Moroccan exporters, and both the Council and Commission had indicated at the oral hearing that the contested decision was de facto applied to the territory of Western Sahara (para 87). The General Court cited the C-386/08 Brita judgment by the CJEU extensively because in that judgment the Court had rejected products produced in the West Bank as being covered by the EU/Israel trade agreement, but did not rely on this judgement because neither the EU nor any of its Member States had ever recognised Polisario as representing Western Sahara as a sovereign state. However, the General Court confirmed direct and individual concern for Polisario to sue because the EU institutions by not including a clause excluding the Western Sahara territory from the application of the EU-Morocco Association Agreement had ‘at least implicitly’ accepted the interpretation of the Association Agreement which applied it to the part of Western Sahara controlled by Morocco (para 102).

On the substance, the General Court rejected all of Polisario’s substantive claims bar one. It agreed with Polisario that the Council had overstepped its wide margin of discretion in international relations by not ensuring that the exploitation of natural resources of Western Sahara under Moroccan control is beneficial to the population of that territory and thus does not violate the population’s fundamental rights. It said the “Council must examine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export is not conducted to the detriment of the population of the territory concerned, or entails infringements of fundamental rights, including, in particular, the rights to human dignity, to life and to the integrity of the person (Articles 1 to 3 of the Charter of Fundamental Rights), the prohibition of slavery and forced labour (Article 5 of the Charter of Fundamental Rights), the freedom to choose an occupation and right to engage in work (Article 15 of the Charter of Fundamental Rights), the freedom to conduct a business (Article 16 of the Charter of Fundamental Rights), the right to property (Article 17 of the Charter of Fundamental Rights), the right to fair and just working conditions and the prohibition of child labour and protection of young people at work (Articles 31 and 32 of the Charter of Fundamental Rights)” (para 228). 

By leaving the question solely to the Moroccan authorities, the Council failed to fulfill its obligation to examine all elements of the case. As a consequence the General Court annulled the Council decision. Several international commentators hailed the decision as beneficial for the international protection of human rights. Eyal Benvenisti strongly welcomed the decision because it highlighted that even indirect contributions to human rights violations through trade could violate international law.

ECJ judgment 

In this week’s appeal judgment, the ECJ Grand Chamber saw things differently. It largely followed, though in much fewer words, the Opinion of Advocate General Wathelet who on 13 September 2016 had concluded that the Court should set aside the General Court decision and dismiss the action by Polisario as inadmissible. He also expressed the opinion that the General Court erred in law when it applied the EU Charter of Fundamental Rights to the population of the Western Sahara (para. 272), although he did accept that international human rights law generally could apply to the EU’s decision.

The Council, supported by the Commission, alleged six errors of law of which the Grand Chamber only examined one in detail. It focussed on the standing of Polisario and the question whether the Liberalisation Agreement applied to Western Sahara. The Court of Justice did not see the finding that the Liberalisation Agreement applied to that territory as a finding of fact, but rather a legal interpretation by the General Court. The Court of Justice concluded that the General Court went too far when it ruled that the absence of an application clause in the Association Agreement meant that the EU had accepted the view by the Moroccan authorities which see Western Sahara as an integral part of the Kingdom of Morocco.

The Court of Justice then proceeded to analyse: a) the principle of self-determination; b) Article 29 of the Vienna Convention on the Law of Treaties, on treaties' territorial scope (“Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”); and c) the relative effect of treaties. The Court of Justice concluded that given the erga omnes nature of the right to self-determination by the peoples of a Non-Self-Governing Territory and its status as an essential principle of international law, the General Court erred in law when assuming that the Association Agreement also applied to Western Sahara. 

With regards to Article 29 of the Vienna Convention the Court of Justice clarifies that ‘its entire territory’ only refers to the territory internationally recognised, and not the territory under its jurisdiction which would be the wider expression. As such, the Court sided with the Commission which argued that any extension of the application must be expressed in the agreement. Finally the Court of Justice also invoked the pacta tertiis principle by which “treaties do not impose obligations, or confer any rights, on third States without their consent” (para 100). It concluded that the people of Western Sahara according to the ICJ Advisory Opinion on Western Sahara constituted a third party in this respect and had not expressed their consent. In the view of the Court, the Liberalisation Agreement as a subsequent agreement is incapable of expanding the scope of the previous Association Agreement. This interpretation can also not be altered by the rule on subsequent practice in Art. 31 Vienna Convention. Though the Commission and the Council were aware that the Moroccan authorities had been applying the Association Agreement to Western Sahara for many years and the institutions never opposed such application and though certain tariff preferences de facto applied to product originating in Western Sahara, this did not constitute clear subsequent practice. As such, the agreements did not apply to Western Sahara and therefor Polisario lacked standing in the European Courts. 

Comment

This judgment contributes to the practice of international law, like many domestic courts would, in that it clarifies the rules of interpretation in the Vienna Convention on the Law of Treaties. It clarified how the territorial scope of the international agreements of the EU cannot be interpreted without reference to general public international law. The fact that the EU and Morocco ‘agree to disagree’ about the application of the Association and Liberalisation Agreements (AG Opinion para 67), could not alter the fact that in the EU’s view said agreements only applied to the territory of Morocco as internationally recognised.

Overall the Court’s judgement highlights that its practice is becoming more sophisticated, carefully evaluating the international legal arguments and not just accepting the Commission’s or Council’s view on the matter. In many ways this highlights that EU External Relations law has a greater body of international case law to rely upon. The impact on EU-Morocco relations as highlighted by Geraldo Vidigal might become a bit trickier. While the Council tried to side with Morocco by highlighting that despite the restrictive scope of the Association Agreement it could be seen as “application without recognition” (AG Opinion para 67), the Court very clearly asserted that the application of the Association Agreement to Western Sahara required an explicit treaty provision. This might make future relations between these two important partners more difficult. So, in some ways this judgment constitutes a bit of a pyrrhic victory for Morocco.

It remains to be seen if Polisario might bring a new case trying to challenge the de facto application of the agreements to the territory also administered by Morocco. (Note that another case on these issues is already pending before the ECJ, following a reference by a UK court, discussed further on the UK Human Rights Blog).  Unfortunately, the Court of Justice did not venture, beyond self-determination, further into the territory of human rights application to trade agreements. As Thomas Cottier wrote in 2002, this will remain an important field to be discovered.           

            

Barnard & Peers: chapter 24

Photo credit: diasporasaharaui-en.blogspot.com