Court Of Jurist Farther Clarifies The Application Of The Eu-Morocco Fisheries Partnership Understanding To Western Sahara

By Markus W. Gehring, Lecturer inwards Law, University of Cambridge

On the 27th Feb 2018, the Court of Justice of the European Union (CJEU) rendered its judgment inwards a preliminary reference from the High Court of England together with Wales inwards the illustration C-266/16 Western Sahara Campaign U.K. v. HM Revenue together with Customs, Secretary of State for Environment, Food together with Rural Affairs. The Grand Chamber, inwards this case, closely followed the analysis it had made inwards C-104/16 P Council v. Front Polisario on which I commented here.

The Western Sahara Campaign U.K. is a voluntary scheme supporting the correct of the people of Western Sahara to self-determination. Kingdom of Morocco considers Western Sahara an integral business office of its territory though internationally few countries recognise this claim. The Western Sahara Campaign U.K. brought 2 actions before the High Court (Queens Bench – Administrative Division). The get-go i of their activity challenges the importation of goods certified every bit originating from Western Sahara every bit if these goods originated from Morocco. The minute i challenges U.K. fisheries policy every bit it includes waters following to Western Sahara. The 2007 Fisheries Partnership Agreement together with the 2013 Protocol betwixt the European Union together with the Kingdom of Kingdom of Morocco setting out the line-fishing opportunities together with fiscal contribution provided for inwards the Fisheries Partnership Agreement betwixt the European Union together with the Kingdom of Morocco don’t define the exact geographical scope, which Pb the get grouping to launch their High Court action.

After the leading judgment inwards Council v. Front Polisario, the referring Court withdrew its get-go 2 questions concerning goods originating inwards Western Sahara. There were 2 remaining questions before the CJEU:

1. Is the Fisheries Partnership Agreement valid inwards lite of self-determination together with to what extend was it concluded to produce goodness the Saharawi people? 

2. Is the applicant entitled to challenge the validity of European Union acts based on breaches of international police pull allegedly committed yesteryear the European Union when Kingdom of Morocco is non business office of the proceedings?

The minute question, inwards the eyes of the Court, required no response because the Grand Chamber did non give away the European Union had violated international police pull

As to the get-go question, the Court, every bit it did amongst the previous judgment inwards Polisario, handed a pyrrhic victory to Kingdom of Morocco when it ruled that neither the Fisheries Partnership Agreement nor its Protocol setting out line-fishing opportunities together with fiscal contributions betwixt the European Union together with Kingdom of Morocco were applicable to the waters following to the territory of Western Sahara. As a result, opposite to what the applicants argued, none of the relevant European Union Regulations implementing the Agreement together with the Protocol were invalid through the application of Art. 3(5) TEU.

Once again, neither Kingdom of Morocco nor the applicants volition endure real happy amongst this farther judgment on this diplomatically charged question. The outcome takes the before Polisario illustration to its logical conclusion together with should every bit such non come upwards every bit whatsoever surprise to observers. It is also inwards describe amongst the previous European Union External Relations illustration police pull on the validity of principles of customary international law.

It should endure noted that the Commission, the Council together with 3 of the principal line-fishing Member U.S. of A. intervened inwards this case.

AG Wathelet’s Opinion

AG Wathelet, inwards his Opinion issued on 10 Jan 2018, concluded that the illustration was admissible together with that both the Fisheries Partnership Agreement together with the Protocol were invalid. He analysed both the Agreement together with the Protocol carefully together with applied a thorough analysis of the applicable international law. Relying on ATAA, the AG rejected the submissions yesteryear the Council, Commission together with the 3 intervening Member States, proverb that their declaration would hateful that no private could always rely on rules of customary law, or indeed jus cogens, to challenge the validity of European Union acts. He rejected said arguments together with proceeded to seat those rules of customary police pull which are binding on the European Union together with are unconditional together with sufficiently precise, so that nature together with wide logic does non preclude judicial review. He concluded that both EU-Morocco treaties were invalid because they constituted a “breach the European Union’s obligation to honour the correct to self-determination of the people of that territory together with its obligation non to recognise an illegal province of affairs resulting from a breach of that correct together with non to homecoming help or assistance inwards maintaining that situation. Furthermore, every bit regards the exploitation of natural resources of Western Sahara, the contested acts produce non seat inwards house the necessary safeguards inwards club to ensure that that exploitation is carried out for the produce goodness of the people of that territory.” (para. 293).

The Court did non follow the legal arguments of AG Wathelet though it was clearly influenced yesteryear his rigid focus on the human rights together with jus cogens dimension of the case.

Admissibility

The Council questioned the admissibility of the illustration because it considered that the Court has no jurisdiction to consider the validity of international agreements, such every bit the Fisheries Partnership Agreement. The Court dealt amongst this objection swiftly yesteryear proverb that every bit inwards previous cases (Racke, Brita) international agreements concluded yesteryear the European Union count every bit acts of the institutions of the EU. These agreements must comply amongst procedural rules, the Treaties together with the constitutional principles from them, every bit good every bit “international police pull inwards its entirety, including non alone the rules together with principles of full general together with customary international law, but also the provisions of international conventions that are binding on it.” (para. 47, citing Kadi together with ATAA).

The Court also clarified that a preliminary reference, although non capable of challenging an international understanding directly, must endure understood to endure challenging the European Union human activity approbation the conclusion of this international agreement. Interestingly the Court hither did non engage amongst the enquiry of whether an activity for annulment would receive got been to a greater extent than appropriate inwards this illustration (although clearly out of time). As for AG Wathelet, he alone referred to the well-known stage of a consummate scheme of legal remedies (citing the recent Rosneft case (C‑72/15, EU:C:2017:236, paragraph 66 together with the case-law cited)).  

Merits

The CJEU arguably took a flake of a short-cut inwards their analysis of the legal situation. The Court concluded broadly that, through the full general rules of interpretation of international law, neither the Fisheries Partnership Agreement nor the Protocol applied to Western Sahara. As such, these were non invalid on the Blue Planet of Art. 3(5) TEU together with full general principles of law, every bit the applicants had argued.

The Court relied on the preamble to the Partnership Agreement inwards the Fisheries Partnership Agreement together with Art. 31(3)(a) of the Vienna Convention on the Law of Treaties to conclude that the damage inwards both agreements should endure interpreted harmoniously.  

The Court together with then relied heavily on the Polisario judgment arguing that the words 'territory of the Kingdom of Morocco' or 'territory of Morocco' had to endure interpreted every bit non to include territories of Western Sahara every bit these were non territories over amongst Kingdom of Morocco ‘exercises the fullness of the powers granted to sovereign entities yesteryear international law’, every bit was the illustration amongst the EU-Morocco Association Agreement (para 62). It added that the inclusion of Western Sahara inwards the orbit of the Association Agreement would endure opposite to ‘certain rules of full general international law’, inwards item the principles of self-determination together with pacta tertiis.

The Court together with then proceeded to translate the reference inwards the Fisheries Partnership Agreement to ‘waters falling inside the sovereignty or jurisdiction’ of Morocco. Taking into describe of piece of occupation concern human relationship the United Nations Convention on the Law of the Sea (UNCLOS), a dry reason has sovereignty over its internal waters together with territorial bounding main together with has jurisdiction over the exclusive economical zone.

Finally, the Court rejected the declaration that the term 'jurisdiction' should endure interpreted every bit based on a exceptional meaning, inwards accordance amongst Art. 31(4) of the Vienna Convention. The Council together with the Commission had argued inwards favour of seeing Kingdom of Morocco every bit a ‘de facto administrative power’ together with every bit such exercising ‘jurisdiction’ over waters following to Western Sahara. The Court, relying on Morocco’s categorical denial that it was either an occupying ability or an administrative power, concluded that at that spot was no exceptional pregnant intended yesteryear ‘jurisdiction’.

The Court also rejected the declaration that the aspect ‘Moroccan line-fishing zone’ inwards the 2013 Protocol would include waters following to Western Sahara. Even maps identifying waters off the coast of Western Sahara every bit business office of the ‘Moroccan line-fishing zone’ did non alter this interpretation every bit those maps were submitted afterward the Agreement was concluded together with hence did non shape business office of the master understanding together with could non Pb to an opposite conclusion.

As such, neither the Fisheries Partnership Agreement nor the 2013 Protocol included the waters following to Western Sahara inwards their scope.

This determination volition delight neither side inwards the dispute. Western Sahara Campaign U.K. had argued that goods from Western Sahara were reaching the U.K. unchecked without beingness rejected. According to the organisation, the electrical flow agreements made it impossible to turn down goods from those parts of Western Sahara nether Moroccan control. An additional enquiry revolves closed to how the effective prohibition of European Union fisheries off the coast of Western Sahara volition help the population living at that spot or enable the realisation of their human rights, which the Court had seat frontward inwards Polisario. Kingdom of Morocco volition feel, nonetheless again, that it was non a political party to the master dispute together with was prevented from defending its interests before the Court.

This judgment, inwards many ways, upholds the strict conclusions of the Polisario decision. It mightiness farther complicate EU-Morocco relations every bit European Union line-fishing boats tin no longer rely on the Fisheries Partnership Agreement to fish off the coast of Western Sahara. The High Court is at nowadays inwards the unenviable seat to determine their illustration presumably yesteryear rejecting the claim spell 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 receive got opened a novel chapter inwards the application of international police pull to cases brought yesteryear individuals. Given that the Court came to the opposite conclusion, it is difficult to fence that his Opinion volition supply guidance inwards the future. It is to endure hoped that a diplomatic solution may endure institute speedily before EU-Morocco relations farther deteriorate due to this serial of cases.

*Many thank yous to Anna Khalfaoui from BIICL for her editorial assistance. 

Barnard & Peers: chapter 24

Photo credit: Modern Ghana

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