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

So long, and thanks for all the fish: the CJEU clarifies international law and institutional issues applying to fisheries

 

Steve Peers

The EU’s fisheries policy is controversial both within the EU and outside it, due to its impact on both fish stocks and the livelihoods of fishing communities. Until the Treaty of Lisbon, its application was essentially the sole preserve of the Council. The European Parliament (EP) tried to obtain joint control of some of the external aspects of the policy by claiming that its consent was needed for international fisheries treaties that impacted the EU budget significantly, but the CJEU rejected this challenge.

Following the Treaty of Lisbon, however, the EP has joint decision-making power internally over agriculture and fisheries policies, since Article 43(2) TFEU states that the ordinary legislative procedure now applies to the adoption of legislation in this field. However, certain aspects are still reserved to the Council, with the European Parliament only consulted, namely ‘measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities’ (Article 43(3)).

As regards fishing, this provision is used each year just before Christmas, to determine the annual allocation of fish between Member States. It’s safe to say that the tone of these usually bitter negotiations never induces fisheries ministers to kiss each other under the mistletoe.  

What exactly is the dividing line between the areas where the EP shares power with the Council, and where fisheries ministers are left to hold acrimonious discussions among themselves? There are pending cases on the dividing line as regards internal EU measures. But today the CJEU ruled on the division of powers externally, in a case which also raised interesting issues of international law.

The judgment

Today’s judgment concerned a Council Decision which awarded Venezuelan fishermen the possibility to fish in the waters of French Guiana (which is a constituent part of French territory). This confirmed what those fishermen had been doing for some time before. The EU had felt it was necessary to put this practice on a more formal footing, but the rather left-wing Venezuelan government did not want to sign a treaty with such dastardly agents of global capitalism.

So the EU adopted an apparently unilateral Decision on this issue. The Council believed that it fell within the scope of Article 43(3), so the EP only had to be consulted, while the EP and the Commission argued that it fell within the scope of Article 43(2), so that the EP had the power of consent. The rules on the EP’s role in the approval of international treaties to which the EU becomes a party are set out in Article 218 TFEU. Basically the EP has the power of consent whenever a treaty concerns an issue regulated by the ordinary legislative procedure (ie fisheries law generally), but is only consulted when a treaty falls within the scope of other decision-making rules internally (ie the non-legislative procedure that applies when the EU fixes and allocates fishing opportunities). (In fact, the rules on the EP’s role in approving international treaties are slightly more complicated, but only this basic distinction is relevant to today’s judgment).

But was the Council Decision an international agreement in the first place? The Advocate-General’s opinion argued that it was not. Rather, it was a unilaterally binding declaration, an interesting form of international law. In fact such legal creatures are so rare that international law had not yet clarified whether international organisations like the EU could adopt them. In the Advocate-General’s view, they could. But that left the awkward question of how exactly the EU could adopt one as a matter of its internal law, since Article 218 clearly only refers to agreements concluded by the EU (or on behalf of the EU by its Member States). She considered various options, but ultimately argued that the relevant provisions of Article 218, including the powers of the EP to give its consent and receive information on negotiations, as well as the special jurisdiction of the CJEU, applied by analogy.

In the Court’s view, however, the Decision did constitute an international agreement. It based itself on the relevant rules of the UN Convention on the law of the sea, to which the EU and its Member States (but not Venezuela) are parties, and confirmed its position in the recent ruling on the Hague Convention on child abduction (discussed here), that treaties could be concluded in two steps. In this case, the EU had extended an offer, which Venezuela was free to accept, reject or suggest changes to. It had chosen to accept.  

As for the internal division of powers, both the Advocate-General and the Court reached the same conclusion: the Parliament’s argument was correct. In the Court’s view, the main powers relating to agriculture and fisheries set out in Article 43(2) concerned ‘policy decision[s] that must be reserved to the EU legislature’. In contrast, Article 43(3) provided for ‘measures of a primarily technical nature’ to implement the legislation adopted in the field. Applying that distinction to this case, the ‘treaty’ with Venezuela set out only a general framework, which had then been implemented by further measures based on Article 43(3). So that ‘treaty’ could not itself be based on Article 43(3); rather it was subject to the consent of the European Parliament, as it was based on Article 43(2).

Comments

On the international law issue, the Advocate-General’s analysis is more convincing than the Court’s, given the clear unwillingness of Venezuela to engage in any formal negotiations along its failure to ratify the UN Convention on the law of the sea, which the CJEU relied on so heavily. Nor is the Court’s use of the language of contract law very convincing. True, Venezuela’s application for fisheries authorisations might be described as the acceptance of an offer, but what is the consideration? Why should Venezuela’s actions be characterised in light of a treaty it had not ratified? Possibly the relevant rules reflect customary international law on the law of the sea which apply to Venezuela, but the Court does not make that argument.

Nor is its analysis of the text of the Law of the Sea Convention very convincing. The relevant clause refers to making ‘agreements or other arrangements’ regarding surplus fish. Could not a unilateral binding declaration constitute a form of ‘other arrangement’? Possibly that interpretation has been rejected by the Law of the Sea tribunal or by experts in that field of law (I confess that I’m not one), in accordance with the sources of international law as defined in the UN Charter. But if that is the case, the Court needs to bolster its interpretation by citing such evidence.

The distinction between the forms of international obligation matters mainly as regards the EU’s internal law. If the Decision was a unilateral binding declaration, the CJEU would have the awkward job of deciding whether the EU can adopt such measures, and if so how. Since the Court didn’t have to address these issues today, they must be considered open. But if it is every necessary to consider them in future, there is much to recommend the Advocate-General’s very thorough analysis of both of these points.

As for the internal decision-making rules, the judgment is more convincing, particularly in light of the Advocate-General’s arguments that Article 43(3) cannot apply to everything concerning fishing opportunities, since that would render the main legislative powers set out in Article 43(2) superfluous.

The broader implications of this judgment remain to be seen. But it’s an early indication that the Court is inclined to tilt in favour of a broad interpretation of the scope of the EP’s legislative and treaty approval powers over agriculture and fisheries following the entry into force of the Treaty of Lisbon.

 

Barnard & Peers: chapter 5