Western Sahara before the CJEU

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Just a quick heads-up to our readers that yesterday Advocate General Wathelet of the Court of Justice of the EU delivered his opinion in Case C‑266/16, Western Sahara Campaign UK, The Queen v Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for  Environment, Food and Rural Affairs. This is a very important opinion, dealing with numerous issues of international law, above all the principle of self-determination; the AG concluded that the Fisheries Agreement between Morocco and the EU was invalid because it was in violation of self-determination, as the Agreement applied to the territory and waters of Western Sahara. This is the first time that a request was made under the preliminary ruling procedure for a review of validity of international agreements concluded by the EU and their implementing acts. In that regard, the AG concluded that it was possible to rely in such proceedings on the rules of international law which are binding on the EU, where their content is unconditional and sufficiently precise and where their nature and broad logic do not preclude judicial review of the contested act. These conditions were in the AG’s view satisfied here. In addition to self-determination, the AG also examines the principle of permanent sovereignty over natural resources and the law of occupation, including the capacity of the occupying power to concluded treaties for the occupied territory.

The AG’s opinion is rich and rigorously argued – obviously it remains to be seen whether the Court will follow it. I would only add that the opinion and the case concern the validity of the Agreement from the perspective of the internal legal order of the EU, which then incorporates (other) rules of international law. But one could also look at the validity question purely from the perspective of general international law, and the rule set out in Art. 53 VCLT. In that regard, the necessary implication of the AG’s analysis seems to me to be that the Agreement was void ab initio and in toto as it conflicted with a peremptory norm of international law, the right to self-determination. For background on the UK litigation from which this case arose, see this post by David Hart QC on the UK Human Rights Blog. For analysis of the earlier Polisario litigation before EU courts, see here.



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Alessandra Asteriti says

January 11, 2018

Interesting, in view of the work currently been conducted by the ILC on peremptory norms of international law. It seems also to me (but I have not read the full opinion yet) a clear reference to Article 42 of the Draft Articles on the Responsibility of International Organisations,

Eugene Kontorovich says

January 11, 2018

The Commission is nonetheless expected to continue its policy of signing treaties with Morocco that extend to W.Sahara, until forced to stop, one-by-one, by the ECJ. Just a few months ago the EU Parliament approved a aviation agreement with Morocco that extends to W.Sahara. Now there are direct flights from EU states straight to Moroccan settlements in W.Sahara. (Indeed, the provider of one such service recently won an a European aviation award.) The EU is not backing down on this policy; it is doubling down.

Margot Salomon says

January 11, 2018

Marko, I agree with your final, valuable point. Indeed, what struck me in reading this significant Opinion is that the conclusion that there were no safeguards to see to it that the fisheries exploitation of the waters adjacent to Western Sahara would ensure a benefit to the people of that territory, important as that point is in the main, is moot if the treaty that violates the right of peoples to self-determination is voided for conflicting with a peremptory norm of international law.

A general reflection: perhaps the Human Rights Committee and the Committee on Economic, Social and Cultural Rights might be motivated to rely more readily on (common) Article 1(2) on the right of peoples to their natural resources. In that regard, I note the recent judgement by the African Court on Human and Peoples’ Rights in the indigenous land rights case, The African Commission on Human and Peoples’ Rights v Kenya. There the Court found a violation of Article 21 of the African Charter (the right of peoples to freely dispose of their wealth and natural resources). Article 21 was interpreted by the Court to apply to the right of the Ogiek to enjoy food derived from their ancestral land.

Vivian Kube says

January 12, 2018

This can turn out to be good news for strategic litigation and legal protecion/access to justice: According to Advocate General Wathelet, an NGO can challenge an EU international agreement on the grounds of international law including human rights law through the preliminary ruling procedure - thereby avoiding the strict application of direct and individual concern, which was one stumbling block even for Polisario in the previous annulment action.

John R Morss says

January 13, 2018

Thanks Marko, what a very interesting and thorough Opinion from the AG. (Altho on its face I think para 99 is extraordinary.) Like Alessandra, I am wondering about what this tells (or asks) us about peremptory norms. It confirms that they are neither treaties nor CIL but are they 'general principles' as per 38(1)(c)? Along with Barca Traction guidelines?! Call me a positivist but I'd like them (more broadly, justiciable "General International Law[s]") to be somewhere... On self-determination should we be starting to think about its normative status not as a positive, proprietorial 'right' but as a prohibition on the dishonouring of (something)? That would seem to be substantively in line with ICJ in The Wall and conceptually in line with the jus cog status of prohibition of genocide. A touch of Occam's razor.

Rebus Can't Stantibus says

January 17, 2018

I would be a bit concerned with the possible ramifications of the AG’s opinion here. By loosening the conditions of review established in Air Transport Association for post-facto annulment/preliminary review, would this not take some of the motivation off of the preventative opinion procedure in TEU 218(11)? It seems that the purpose for creating such a broad and permissive procedure in 218(11) was to avoid the kind of post-facto validity reviews that are the subject of this matter (indeed the Court said as much in EU-Canada PNR last year). The AG seems to sidestep this concern in his opinion.

Lorand Bartels says

January 25, 2018

It is a shame that (once again!) the basis of the claim was (inter alia) Art 21(1)(1) and (2) directly and not Article 21(3)(1) TEU referencing these two provisions.

The operative obligation in Art 21(1)(1) is that the EU is to be 'guided by' certain principles, including respect for international law, and the operative obligations in Art 21(2) are that the EU is to 'define and pursue common policies and actions, and ... work for a high degree of cooperation' to attain certain objectives. By contrast, the operative obligation in Art 21(3)(1) is to 'respect the principles' and 'pursue the objectives' set out in the previous two paragraphs reespectively.

Same norms, but different obligations; a small but important distinction. For more, see http://www.ejil.org/pdfs/25/4/2546.pdf