Eu/Morocco Relations Together With The Western Sahara: The Ecj Together With International Law
November 22, 2018
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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 Midweek 21 December 2016 the Court of Justice rendered its appeals decision inward the illustration C-104/16 P Council v. Front Polisario. This was a Grand Chamber judgment nether the expedited physical care for which overturned the decision yesteryear the European Union General Court inward T-512/12 Front Polisario v Council decided a piddling over a twelvemonth ago.
Background
The Front Polisario (Frente Popular de Liberación de Saguía el Hamra y Río de Oro) aims to cease Moroccan presence inward the Western Sahara territory in addition to has been recognised internationally yesteryear over forty countries amongst People's Democratic Republic of Algeria existence regarded equally its primary backer. It had a hard twelvemonth (see here in addition to here) afterward its leader died in addition to Morocco, afterward a thirty-year absence from the African Union, applied to re-join (a vote volition move held inward Jan 2017). While Polisario did non win this case, the judgment volition hardly move welcomed yesteryear Kingdom of Morocco either.
General Court judgment
As discussed yesteryear Geraldo Vidigal inward EJILTalk, the conclusion yesteryear the General Court had been seen equally an extraordinary victory yesteryear the Polisario equally it was granted standing to take away a illustration against the Council conclusion concerning reciprocal liberalisation of certainly agricultural products betwixt the European Union in addition to Kingdom of Morocco (Liberalisation Agreement). The General Court recognised, reverse to objections yesteryear the Council in addition to Commission, that Polisario had legal personality in addition to could bear witness forthwith in addition to private concern (the standing requirement to challenge a conclusion inward the European Union courts, unless the competitor is an European Union establishment or Member State).
Polisario was concerned because the agreement, despite differing interpretations of its territorial compass betwixt Kingdom of Morocco in addition to the EU, was applied to Western Sahara. Polisario inward especial argued that 140 undertakings based inward Western Sahara were included inward the European Union Commission’s website listing of approved Moroccan exporters, in addition to both the Council in addition to Commission had indicated at the oral hearing that the contested conclusion was de facto applied to the territory of Western Sahara (para 87). The General Court cited the C-386/08 Brita judgment yesteryear the CJEU extensively because inward that judgment the Court had rejected products produced inward the West Bank equally existence covered yesteryear the EU/Israel merchandise agreement, but did non rely on this sentence because neither the European Union nor whatever of its Member U.S.A. had e'er recognised Polisario equally representing Western Sahara equally a sovereign state. However, the General Court confirmed forthwith in addition to private concern for Polisario to sue because the European Union institutions yesteryear non including a clause excluding the Western Sahara territory from the application of the EU-Morocco Association Agreement had ‘at to the lowest degree implicitly’ accepted the interpretation of the Association Agreement which applied it to the utilisation of Western Sahara controlled yesteryear Kingdom of Morocco (para 102).
On the substance, the General Court rejected all of Polisario’s noun claims bar one. It agreed amongst Polisario that the Council had overstepped its broad margin of discretion inward international relations yesteryear non ensuring that the exploitation of natural resources of Western Sahara nether Moroccan command is beneficial to the population of that territory in addition to thence does non violate the population’s cardinal rights. It said the “Council must examine, carefully in addition to impartially, all the relevant facts inward companionship to ensure that the production of goods for export is non conducted to the detriment of the population of the territory concerned, or entails infringements of cardinal rights, including, inward particular, the rights to human dignity, to life in addition to to the integrity of the mortal (Articles 1 to three of the Charter of Fundamental Rights), the prohibition of slavery in addition to forced labour (Article v of the Charter of Fundamental Rights), the liberty to pick out an trouble in addition to correct to engage inward move (Article xv of the Charter of Fundamental Rights), the liberty to deport a business organisation (Article xvi of the Charter of Fundamental Rights), the correct to holding (Article 17 of the Charter of Fundamental Rights), the correct to fair in addition to but working weather in addition to the prohibition of shaver labour in addition to protection of immature people at move (Articles 31 in addition to 32 of the Charter of Fundamental Rights)” (para 228).
By leaving the inquiry exclusively to the Moroccan authorities, the Council failed to fulfill its obligation to examine all elements of the case. As a resultant the General Court annulled the Council decision. Several international commentators hailed the conclusion equally beneficial for the international protection of human rights. Eyal Benvenisti strongly welcomed the conclusion because it highlighted that fifty-fifty indirect contributions to human rights violations through merchandise could violate international law.
ECJ judgment
In this week’s appeal judgment, the ECJ Grand Chamber saw things differently. It largely followed, though inward much fewer words, the Opinion of Advocate General Wathelet who on xiii September 2016 had concluded that the Court should laid aside the General Court conclusion in addition to dismiss the activity yesteryear Polisario equally inadmissible. He also expressed the catch that the General Court erred inward constabulary when it applied the European Union Charter of Fundamental Rights to the population of the Western Sahara (para. 272), although he did take away that international human rights constabulary to a greater extent than ofttimes than non could apply to the EU’s decision.
The Council, supported yesteryear the Commission, alleged 6 errors of constabulary of which the Grand Chamber only examined ane inward detail. It focussed on the standing of Polisario in addition to the inquiry whether the Liberalisation Agreement applied to Western Sahara. The Court of Justice did non encounter the finding that the Liberalisation Agreement applied to that territory equally a finding of fact, but rather a legal interpretation yesteryear the General Court. The Court of Justice concluded that the General Court went also far when it ruled that the absence of an application clause inward the Association Agreement meant that the European Union had accepted the catch yesteryear the Moroccan regime which encounter Western Sahara equally an integral utilisation of the Kingdom of Morocco.
The Court of Justice in addition to so proceeded to analyse: a) the regulation of self-determination; b) Article 29 of the Vienna Convention on the Law of Treaties, on treaties' territorial compass (“Unless a dissimilar intention appears from the treaty or is otherwise established, a treaty is binding upon each political party inward abide by of its entire territory.”); in addition to c) the relative effect of treaties. The Court of Justice concluded that given the erga omnes nature of the correct to self-determination yesteryear the peoples of a Non-Self-Governing Territory in addition to its status equally an essential regulation of international law, the General Court erred inward constabulary 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, in addition to non the territory nether its jurisdiction which would move the wider expression. As such, the Court sided amongst the Commission which argued that whatever extension of the application must move expressed inward the agreement. Finally the Court of Justice also invoked the pacta tertiis regulation yesteryear which “treaties attain non impose obligations, or confer whatever rights, on tertiary U.S.A. without their consent” (para 100). It concluded that the people of Western Sahara according to the ICJ Advisory Opinion on Western Sahara constituted a tertiary political party inward this abide by in addition to had non expressed their consent. In the catch of the Court, the Liberalisation Agreement equally a subsequent understanding is incapable of expanding the compass of the previous Association Agreement. This interpretation tin grade the sack also non move altered yesteryear the dominion on subsequent practise inward Art. 31 Vienna Convention. Though the Commission in addition to the Council were aware that the Moroccan regime had been applying the Association Agreement to Western Sahara for many years in addition to the institutions never opposed such application in addition to though certainly tariff preferences de facto applied to production originating inward Western Sahara, this did non constitute clear subsequent practice. As such, the agreements did non apply to Western Sahara in addition to therefor Polisario lacked standing inward the European Courts.
Comment
This judgment contributes to the practise of international law, similar many domestic courts would, inward that it clarifies the rules of interpretation inward the Vienna Convention on the Law of Treaties. It clarified how the territorial compass of the international agreements of the European Union cannot move interpreted without reference to full general world international law. The fact that the European Union in addition to Kingdom of Morocco ‘agree to disagree’ most the application of the Association in addition to Liberalisation Agreements (AG Opinion para 67), could non alteration the fact that inward the EU’s catch said agreements only applied to the territory of Kingdom of Morocco equally internationally recognised.
Overall the Court’s sentence highlights that its practise is becoming to a greater extent than sophisticated, carefully evaluating the international legal arguments in addition to non but accepting the Commission’s or Council’s catch on the matter. In many ways this highlights that European Union External Relations constabulary has a greater torso of international illustration constabulary to rely upon. The affect on EU-Morocco relations equally highlighted yesteryear Geraldo Vidigal powerfulness larn a fleck trickier. While the Council tried to side amongst Kingdom of Morocco yesteryear highlighting that despite the restrictive compass of the Association Agreement it could move seen equally “application without recognition” (AG Opinion para 67), the Court really clearly asserted that the application of the Association Agreement to Western Sahara required an explicit treaty provision. This powerfulness brand hereafter relations betwixt these 2 of import partners to a greater extent than difficult. So, inward unopen to ways this judgment constitutes a fleck of a pyrrhic victory for Morocco.
It remains to move seen if Polisario powerfulness take away a novel illustration trying to challenge the de facto application of the agreements to the territory also administered yesteryear Morocco. (Note that another case on these issues is already pending earlier the ECJ, next a reference yesteryear a Britain court, discussed farther on the UK Human Rights Blog). Unfortunately, the Court of Justice did non venture, beyond self-determination, farther into the territory of human rights application to merchandise agreements. As Thomas Cottier wrote inward 2002, this volition stay an of import plain to move discovered.
Barnard & Peers: chapter 24
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