Landmark A-G opinion: EU must respect right of self-determination of Western Sahara
14 January 2018
R (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.
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.
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.
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. 
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): .
- 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 .
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): . As for the nature of the rule not precluding judicial review, he relied on the CJEU judgment in Polisario: .
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 (-, 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: .
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: -, , 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: . He was unwilling to limit in time the effects of the invalidity he had so found: .
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.
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