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

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.

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Western Sahara goes to Europe

wsaharaR (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.

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