Landmark A-G opinion: EU must respect right of self-determination of Western Sahara

14 January 2018 by

wsaharaR (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA, Court of Justice of the European Union, opinion of Advocate-General Wathelet, 10 January 2018 – read here

The A-G has just invited the CJEU to conclude that an EU agreement with Morocco about fishing is invalid on international law grounds. His opinion rolls up deep issues about NGO standing, ability to rely on international law principles, justiciability, and standard of review, into one case. It also touches on deeply political, and foreign political, issues, and he is unapologetic about this.  That, he concludes, is a judge’s job, both at EU and international court level – if the issues are indeed legal.

The opinion is complex and I summarise it in the simplest terms. But here goes.

Historical context

The case arises out of the long-running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. Spain had exercised its colonial powers over both Morocco and the Western Sahara, and in the 1960s had come under pressure to divest and allow Western Sahara a referendum to decide its political fate. In 1974 Spain proposed the referendum. In 1975, the International Court of Justice declared, in an Advisory Opinion, that Western Sahara was not terra nullius (a coloniser’s favourite concept, meaning no-one owns it and therefore the colonial power could take it over) and therefore the Western Saharan people could exercise their right to self-determination. Spain moved out. Morocco moved in and asserted historical ties of allegiance between the Sahrawi people and the Sultan of Morocco – rendering, it said, a referendum unnecessary. Morocco has maintained since the 1970s that Western Sahara is part of its state. Internal strife between Morocco and the inhabitants of Western Sahara (via their liberation organisation, Front Polisario) continued until 1988, when a ceasefire was reached. The respective territories are divided by a wall of sand guarded by the Moroccan army, with Polisario controlling the area to the south of the sand wall.

The acts under challenge

Since the 1980s, the EEC/EC/EU has had various fishing agreements with Morocco, operating at the international law level, under which the EU had paid for the right to access waters which included those of Western Sahara. The EU had also implemented this, and shared the fishing spoils amongst EU member states, in return for €40m per annum. The UK stood to benefit from the agreement to the tune of over 4,000 tonnes of fishing quota.

The nub of the case is that neither the agreement nor the implementing measures distinguishes 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.

The reference

Blake J referred the case, started in London, to the CJEU: see my post here.

The issue of invalidity could only be determined in the CJEU. Indeed it was the first time the CJEU had been asked via the preliminary ruling procedure to review the validity of an international agreement concluded by the EU.

The issues in the A-G’s opinion

The A-G had to navigate around two key CJEU decisions about the EU’s international relations in order to reach his conclusions.

The first was the Air Transport case – see my post here – where the CJEU held that the EU must respect international law generally, including customary international law; but challenges to the EU’s stance on the international law questions in issue would be limited to circumstances where the EU had made “manifest errors of assessment” concerning its own competence to legislate. The airline’s challenges to greenhouse gas emissions measures failed.

The second was the closely related case of Council v. Front Polisario – judgment here. about an EU trade agreement challenged by Polisario. The General Court ordered its annulment, finding that Polisario had standing under Art.263. The CJEU (reversing the General Court) denied Polisario standing, on the grounds that the trade agreement with Morocco did not in fact apply to Western Sahara; however, it raised directly the principle of international law compliance (with the right of self-determination) in an EU context.

International law

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. Similarly the right is to be found in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).

But there is a formal problem. The EU is not a state, and is not therefore a party to the UN Charter or these Covenants. However, in an aspirational Art 3(5) TEU, it had declared that it would respect the principles of the UN Charter. And in the Polisario case the CJEU had decided the EU was bound by the right to self-determination.

International law also provides that an occupying states observes certain rules about what it does to the occupied. The rules were set down in the Hague Regulations of 1907 (sic). These rules, in simple terms, stop occupying powers plundering the countries occupied.

The A-G’s reasoning: jurisdiction

Step 1 was the A-G deciding that the CJEU had jurisdiction. In a bit of turf war, the EU Council had argued that it did not, once a given agreement had been formally entered into by the EU; the agreement operated solely at an international level. But the set of EU acts went further here, because they were internally implemented.

Hence the A-G concluded that

  The Court therefore has jurisdiction to annul….or to declare invalid (in case of a request for a preliminary ruling) the Council decision approving the conclusion of the international agreement at issue and to declare that agreement incompatible with the EU and FEU Treaties and with the constitutional principles stemming from those Treaties. [55]

So what then happens at the international level to the impugned agreement?

 In those situations, the international agreement continues to bind the parties in international law and it is for the EU institutions to eliminate the incompatibilities between that agreement and the EU and FEU Treaties and with the constitutional principles stemming from those Treaties. (28) If the incompatibilities prove impossible to eliminate, the institutions must denounce the agreement or withdraw from it…


The A-G decided that the fisheries agreement applied to Western Saharan waters (contrast the trade agreement in the Polisario case): [75].

  • International rules to be relied upon

But the real issue came in the next step. Could the NGO rely on international law principles to challenge the various EU acts? Here, the Air Transport case was central focus. It had decided that relying on the rules of customary international law required that

  • those rules must be capable of calling in question the competence of the European Union to adopt the contested act and
  • the act must be liable to affect rights which the individual derives from EU law or to create obligations under EU law in his regard.

But as for  international treaty law

  • its content must be unconditional and sufficiently precise;
  • its nature and broad logic must not preclude judicial review of the contested act;

and that was it – nothing about individual rights.

Here, the rules in issue were a mixture of general international law, treaty law and customary international law [88].

All the other parties argued that the rules of customary international law should be applicable to the dispute, which, as the A-G pointed out, would automatically preclude individuals from relying upon them. The A-G then concluded that the fisheries agreement would not be reviewable by an international court (the EU not being a state). So, on that basis, the only parties able to seek review of the agreement would be the EU and Morocco – its beneficiaries. And yet the EU’s role under Art.3(5) was to contribute to

strict observance and the development of international law

Such a lack of practical enforceability made no sense to him.

He therefore adopted the rules applicable to treaty law which did not require any effect on the rights of individuals.

Once he reached this conclusion, it was not difficult for him to find that the right of self-determination was unconditional and sufficiently precise (relying on the ICJ Advisory Opinion on the Israeli wall in the Occupied Palestinian Territory): [112]. As for the nature of the rule not precluding judicial review, he relied on the CJEU judgment in Polisario: [125].

He reached similar conclusions on the principle of permanent sovereignty over natural resources, a rule of customary international law, and on the rules of international humanitarian law concerning exploitation of natural resources – all these could be relied upon.

  • Validity of the measures when set against those rules

In a long account of the history ([147]-[186], the A-G concluded that the fisheries exploitation established by the contested measures did not respect the right of the Western Saharan people to self-determination.

This led to the related conclusion that the EU was obliged not to recognise an illegal situation arising from such a breach and not to render aid or assistance in maintaining that situation: [187].

The Council and Commission ran a curious argument, given short shrift, that the agreement concerning Morocco’s waters contained  no recognition of Morocco’s sovereignty over Western Saharan territory. But it is the territorial rights which under the law of the sea give rise to one’s maritime rights. In law, as the ICJ has put it,

the land dominates the sea

The A-G considered and rejected various attempts to argue that Morocco’s involvement with Western Sahara did not involve impairing Western Saharan sovereignty

  • Morocco was a “de facto administering power”
  • Morocco was an occupying power who was empowered to make such agreements.

The latter involved a comparison of the position of Iraq after invasion: [253]-[254], [263], where the Coalition had accepted that Iraq’s oil would be “protected and used for the benefit of the Iraqi people”, and oil and gas receipts would be paid into an Iraq Development Fund.

It was also argued that the agreement did respect the position of the Western Saharans because EU money would be used and was in fact used to assist them. But this was not made a legal obligation under the fisheries agreement, and the bulk of the EU money received was not in fact used for that purpose, despite the preponderance of the valuable fishing waters (over 91%) being adjacent to Western Sahara.

The A-G therefore found the agreement and the implementing protocols to be in breach of principles of international  law binding upon the EU: [293]. He was unwilling to limit in time the effects of the invalidity he had so found: [295].


There are many fascinating aspects of this strong assertion that the EU must respect general international law principles when entering into international agreements.

The most important, and potentially the most controversial, is the conclusion that an NGO can ask the CJEU to intervene without going through the well-nigh impossible task of establishing that the rules in question were intended to confer rights on individuals.

The second is that the A-G rolled up his sleeves and looked in detail at the impact of the measures and their actual validity; it was not just a reviewing exercise of the Commission’s decision on these issues, in which its judgment could only be set aside if there had been a manifest error of assessment – this had been Blake J’s preferred approach when considering whether to refer.

Finally, who is our A-G? Eminent jurist, with a career in politics, then as a judge of the ECJ, then as legal adviser, and then returning to the CJEU as A-G. He had been the A-G in the Polisario case. But from which part of Europe? Wallonia, a predominantly French-speaking staunchly separatist part of Belgium. He would have been all too aware, all his political life, of the importance of the right of self-determination.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;

  1. Shôtoku says:

    Wallonia is not a “staunchly separatist part of Belgium”. However, Belgium having been invaded twice in the last century (World Wars I and II), Belgian jurists and politicians do not consider international law as mere “scraps of paper” (“Scrap_of_Paper”).

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: