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.
R (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA  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.
A lot is happening in various challenges related to the long-running and shameful exclusion of the Chagossian people from their islands in the Indian Ocean.
Here are the headlines, with a reminder of what these cases are about:
First, the Court of Appeal has just (2 April 2014) heard an appeal by the Chagossians against the dismissal of their challenge to the designation of the waters around the islands as a Marine Protected Area.
Second, the closed hearing of the UNCLOS Arbitral Tribunal on the merits of the Chagos dispute (Mauritius v UK) is to be held at Istanbul on 22 April 2014. This also concerns the designation of the MPA.
Thirdly, the public hearing in the UK Information Tribunal on access to Diego Garcia pollution data appeal under the Environmental Information Regulations 2004, which the FCO — contrary to the view of the Information Commissioner — says is inapplicable to overseas territories) is to be held on May 1st, 2014.
The Foreign Secretary in February 2013 issued a certificate of Public Interest Immunity (PII), on the grounds of national security and/or international relations, to prevent the disclosure of a representative sample of Government documents relating to the 2006 poisoning. In May 2013 the Coroner for the Litvinenko Inquest (Sir Robert Owen) partially rejected that certificate and ordered the disclosure of gists of material relating to some of the key issues surrounding the death(read ruling). In this judgement, a panel of three judges of the High Court unanimously quashed that ruling.
Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 11 June 2013 read judgment
The Divisional Court has now dismissed the claim by Mr Bancoult on behalf of the Chagossian islanders. He had challenged the designation of the waters around the islands as a “no take” Marine Protected Area, i.e. one which could not be fished.
Mr Bancoult said that the decision was flawed (i) by having an improper purpose (it would put paid to the Chagossians’ claims for resettlement); (ii) by inadequate consultation and (iii) by amounting to a breach of an EU obligation to promote the economic and social development of the islands. The Court ruled against all these claims.
The case has, to say the least, quite a back-story. It started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, on which I have posted here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the Foreign Office accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 16-24 April 2013, judgment awaited, but see 25 July 2012, Stanley Burnton LJ for an earlier judgment UPDATED
A quick update at the end of the recent judicial review on 24 April by Mr Bancoult on behalf of the Chagossian islanders, but before judgment. The challenge was to the designation of the waters around their islands as a “no take” Marine Protected Area, i.e. one which could not be fished.
I have posted on this saga before, which started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
The Chagos Refugees Group in Mauritius v. Foreign and Commonwealth Office, First Tier Tribunal, 4 September 2012, read judgment
and Bancoult v. FCO, 25 July 2012, Stanley Burnton LJ, read judgment
The manoevres by which the Chagossians were evicted from their islands in the Indian Ocean, the late 1960s and early 1970s, so to enable the US to operate an air base on Diego Garcia, do not show the UK Foreign Office in its best light. Indeed, after a severe rebuke from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
The first of these new cases is an environmental information appeal concerning the next phase of the story – how the FCO decided that it was not feasible to resettle the islanders in 2002-2004.
This decision was taken in the modern way – backed by a feasibility study prepared by consultants supporting the stance which the FCO ultimately were to take. And this case concerns the islanders’ attempts to get documents lying behind and around the taking of this decision.
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