Western Sahara goes to Europe

23 October 2015 by David Hart KC

R (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA [2015] EWHC 2898 (Admin) Blake J, 19 October 2015 read judgment

Not primarily about migration, but a case arising out of the long-running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. For many years, the UN has recognised the Western Sahara as a non-self-governing territory which is entitled to exercise its right of self-determination. Morocco does not agree, and has done what occupying powers do, namely send in Moroccan nationals to flood the existing populations, add troops, and commit human rights abuses, according to evidence filed in the case. 

You may be wondering how this North-West African problem got to London’s Administrative Court. This is because the challenge is to two EU measures concerning Morocco. The first is a preferential tariff (administered by HMRC) applicable to imports from Morocco of goods originating from the Western Sahara. The second concerns the intended application of an EU-Morocco fisheries agreement about fishing in the territorial waters of Western Sahara.

The underlying complaint by the Western Sahara NGO is that both EU measures fail to distinguish between the sovereign territory of Morocco and Western Sahara, as they should, given that Morocco’s occupation is in breach of the principles of international law and the UN Charter governing the right of self-determination.

Given that the measures are EU ones, the UK Courts cannot determine their legality. The only court which can do that is the CJEU in Luxembourg, and hence the UK courts’ role is limited to deciding whether to refer the case to the CJEU, or as the Defendants contended, to dismiss it on the grounds of lack of merit.

Blake J’s judgment concerned whether the measures were arguably unlawful, and indeed he found them to be so.

The interest in his judgment (apart from the historical one) is in his rejection of the Defendant’s argument that the challenge was non-justiciable. As the judge noted, this would be a strong argument, if the challenge were a common law one, involving as it did the assessment of the legality of the actions of a foreign sovereign. But the governing law here was EU law, and the EU Treaty (TEU) obliges the EU to respect the principles of the EU Charter. CJEU case law (the Air Transport case – see my post here) adds that the EU must respect international law generally, including customary international law. But challenges to the EU’s stance on international law questions would, as the Air Transport case also illustrates, be limited to circumstances where the EU had made

manifest errors of assessment.

Now for a bit of history. In the late 19th century Spain exercised its colonial powers over Morocco and Western Sahara. In the 1960s, the UN told Spain to decolonize, which it did, and organise a referendum on independence, which it did not do. In 1975, Spain divided its territories into Mauretania and Morocco (including the Western Sahara), coinciding with the occupation of Western Sahara by Moroccans.

Article 1 of the UN Charter sets out the purposes of the UN which include the principles of self-determination. Article 73 obliges UN members to promote self-government by peoples over whom the UN member currently exercises responsibilities.

In fact, agricultural products from Western Sahara have been imported into the UK on the basis that they originate from Morocco, and similarly, where other EU member states have issued fishing licences, fishing has taken place within Western Saharan territorial waters, and fish has been landed and port fees paid to Moroccan authorities. Both are subject to the EU agreements under challenge. The EU’s line is to regard such events as lawful

as long as they are not undertaken in disregard of the needs, interest and benefits of the people of that territory. The ‘de facto’ administration of Morocco in Western Sahara is under a legal obligation to comply with these principles of international law.

The Claimants said that the EU in entering into these agreements had

have acted on a mistaken and erroneous understanding of international law. A vague expression of intent by Morocco to benefit the local population by these agreements is insufficient to make them lawful agreements by an administering power pending the expression of self-determination by the people of the territory concerned.

So, went the argument, the effect of the agreements was to aid and abet an illegitimate occupation of the Western Sahara by Morocco, and this was in breach of the emerging principles of state responsibility for unlawful acts that violate the principle of self-determination.

The judge at [39] distinguished between circumstances in which the EU was not obliged to resolve some territorial dispute before entering agreements with one or other country, and the current position in which the international community (including the EU) did not recognise Morocco’s claim to the Western Sahara. He considered the arguments which may be advanced by Morocco in respect of its claims to these territories, and touched on the question as to whether Morocco may be entitled to participate in any hearing before the CJEU.

Blake J readily appreciated the sensitivity of the questions which would face the CJEU, whichever way it was inclined to rule. Against too much deference on such international law issues –

The CJEU may take the view that it would reduce the efficacy of the reference to the Charter of the UN in the TEU, if every time there was a serious issue as to violation of the Charter by a state which is not a member of the EU, the Court would be obliged to decline jurisdiction.

That said, the case was about the actions of the EU in reaching the agreements, rather than

an internationally binding declaration as to the nature of Morocco’s exercise of jurisdiction in the Western Sahara.

And the test was therefore whether there was manifest error by the EU, as identified in the Air Transport case.

In the light of that the judge was evidently tempted to conclude that it was an uphill struggle to prove this. Hence

I accept that in the light of the state of the learning and the submissions made to me, it would not be a manifest error for the Commission to conclude that the fact of Morocco’s continued occupation of the territory of the Western Sahara did not preclude, as a matter of international law, the making of any agreements for the exploitation of the natural resources of the territory in question. If so, I also recognise that it is but a short step to say that what agreements can be reached and whether the benefit of the agreements is being given to the people of the region is a matter of judgment for the Commission rather than adjudication for the CJEU. I recognise that there is a real possibility that this is an approach that will find favour.

But he then stepped back, and looked at the other side of the coin. On traditional principles on whether to refer, he was not persuaded with sufficient confidence that the claimant’s arguments were bound to fail.  The EU may have had a distinguished jurist on its side, but there were issues which he had not considered, such as who was in fact capable of participating in any referendum on self-determination, the original inhabitants and their descendants, or the current population swollen by Moroccan migrants.

Hence, his conclusion at [55]

I conclude that there is an arguable case of a manifest error by the Commission in understanding and applying international law relevant to these agreements

He added that it did not matter that the claim was brought solely by a concerned NGO, rather than someone whose commercial rights had been infringed by the agreements. The claimant had standing under English law, and relied upon international law as applied in the EU to bring its claim.

Conclusion

So a case heard in London’s Strand brings within its ken the rights and wrongs of Morocco’s annexation of Western Sahara in the 1970s and the EU’s attempts to do business with Morocco – spiced with some good EU and International Court of Justice learning.

Watch this one when it gets to Luxembourg. The urge to defer to the pragmatic line taken by the EU may be strong, but equally the CJEU will be anxious to endorse the importance of adhering to the present position under international law.

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