The Advocate-General Wathelet (AG) has invited the Court of Justice of the European Union (CJEU) to determine that an EU agreement with Morocco regarding fishing is invalid on international law grounds. The opinion discusses deep issues about NGO standing, the ability to rely on international law principles, justiciability, and standard of review in the case of R (o.t.a Western Sahara Campaign UK) v HMRC and DEFRA.
The case arises from a long running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. Morocco has maintained since the 1970s that Western Sahara is part of its state. Since the 1980s, there have been various fishing arrangements with Morocco, operating at international law level, under which the EU had paid rights to access waters which include those of Western Sahara. The EU implemented this and shared the profits amongst EU member states, in return for €40m per annum. Under the agreement the UK had access to 4,000 tonnes of fish as part of its quota. The issue arises in relation to the agreement as neither the agreement nor the implementing measures distinguish between the sovereign territory of Morocco and Western Sahara and they do not consider the fact that Morocco’s occupation is in breach of the principles of international law and the UN Charter governing the right of self-determination.
The case was referred to the CJEU from London’s Administrative Court. As this was an EU agreement, the UK courts could not determine its legality and therefore the issue of invalidity could only be determined in the CJEU.
In reaching his conclusions, the AG considered two key CJEU decisions on EU international relations. The first was the Air Transport Case which dealt with a challenge brought before the UK courts in relation to the EU Emissions Trading Scheme. The CJEU held that the EU must respect international law, including customary international law, and limited challenges to where the EU had made “manifest errors of assessment” concerning its own competence to legislate. The other case was that of Council v Front Polisario. The CJEU reversed a decision made by the General Court in stating that Polisario had no standing, on the grounds that the trade agreement with Morocco it sought to challenge did not in fact apply to Western Sahara. It did raise directly the principle of international law compliance with the right of self-determination in an EU context.
Although the EU is itself not a state it had declared that it would respect the principles of the UN Charter, including Article 1 on self-determination and Article 73 which obliges UN members to promote self-government by peoples over whom the UN member currently exercises responsibilities.
The AG first decided that the Court had jurisdiction to annul or declare invalid the EU Council decision approving the international agreement and to declare it incompatible with the EU and FEU Treaties and with the constitutional principles stemming from those Treaties. He stated that that international agreement continues to bind the parties in international law and it is for the EU institutions to eliminate any incompatibilities.
When considering the case of Western Sahara and the fishery agreement, the AG looked at whether the NGO who brought the case could rely on international law principles to challenge various EU acts. In line with the Air Transport, the AG stressed the ability to rely on the rules of international treaty law was subject to the following conditions: the EU must be bound by those rules; their content must be unconditional and sufficiently precise; and, last, their nature and their broad logic must not preclude judicial review of the contested act. As the EU does not fall within the jurisdiction of an international court, he concluded the only parties who could seek review of agreement would be the EU and Morocco. Therefore he adopted the rules applicable to treat law which did not require any effect on the rights of individuals. Having reached this conclusion he found that the right of self-determination was unconditional and sufficiently precise.
When considering those rules the AG concluded that the fisheries exploitation established by the contested measure did not respect the right of Western Saharan people to self-determination. This led to the 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 A-G rejected various arguments that Morocco’s involvement with Western Sahara did not involve impairing Western Saharan sovereignty stating that Morocco was a “de facto administrating power” and was an occupying power who was empowered to make such agreements. It was also argued that the EU money was used to assist Western Sahara and therefore the agreement did respect their position but it was found that in fact this money was not used for that purpose. The A-G found that the agreement was in breach of principles and the implementing protocols of international law binding upon the EU.
For the full A-G opinion click here.
For further commentary on the case click here and here.