The Western Sahara Campaign UK case

Western Sahara Campaign UK is a non-governmental organisation based in the UK. The organisation was established to support the right of the people of Western Sahara to self-determination and to promote the human rights of Saharawi people. Western Sahara Campaign UK brought two proceedings before the High Court of Justice (England & Wales). The first action concerned whether the Commissioners for Her Majesty’s Revenue and Customs, United Kingdom (HMRC) were entitled to accept the importation, into the UK, of goods certified as originating in Western Sahara, as if they were goods certified as originating in the Kingdom of Morocco for the purposes of the Association Agreement between Morocco and the EU and its Member States.Footnote ⁴ The second action challenged the fisheries policy of the UK Secretary of State for Environment, Food and Rural Affairs. This challenge was on the grounds that the policy included the waters adjacent to the territory of Western Sahara within the scope of the domestic legislation intended to implement the Fisheries Partnership Agreement,Footnote ⁵ its 2013 ProtocolFootnote ⁶ and acts of secondary legislation whereby the EU allocated fishing opportunities to the Member States.

Western Sahara Campaign UK essentially argued that these instruments – the Association Agreement, the Fisheries Partnership Agreement, and the 2013 Protocol, as well as secondary legislation implementing fishing opportunities – were contrary to Article 3(5) of the Treaty on European Union, according to which the EU shall contribute to the ‘strict observance and the development of international law, including respect for the principles of the United Nations Charter’ in its relations with the wider world.Footnote ⁷ Western Sahara Campaign UK asserted that the inclusion of the territory of Western Sahara and its waters within the territorial scope of the agreements violated a number of rules of international law. These included: (i) the right to self-determination; (ii) Article 73 of the Charter of the United Nations, which deals with the rights of the people of non-self-governing territories’ (iii) provisions of the UN Convention on the Law of the Sea;Footnote ⁸ (iv) the obligation to bring to an end serious breaches of a peremptory norm of international law; (v) the obligation not to recognise an illegal situation resulting from such a breach; and (vi) the obligation not to provide assistance for the commission of an internationally wrongful act. Western Sahara Campaign UK also argued that the international agreements in question were not concluded on behalf of the people of Western Sahara nor in consultation with their representatives, and that there was no evidence that the people of Western Sahara had derived any benefit from those three international agreements.Footnote ⁹

The referring court decided to stay the proceedings and referred to the Court of Justice of the European Union four questions for a preliminary ruling. The first two concerned the interpretation and validity of the Association Agreement. The final two questions concerned the validity of the Fisheries Partnership Agreement and the various acts of secondary legislation associated with it.

In an earlier ruling, on 21 December 2016, the Court of Justice delivered its judgment Council v Front Polisario (mentioned above). Front Polisario had also challenged the Association Agreement, based on very similar arguments, alleging inter alia that it violated the principle of self-determination. One of the Court’s key findings in Front Polisario was that the Association Agreement did not apply to the territory of Western Sahara. Following this judgment, the referring court was asked whether it wished to retain its first two questions relating to the interpretation and the validity of the Association Agreement, and it decided to withdraw them. These two judgments are closely related and should be understood together, since in Western Sahara Campaign UK, the Court applies similar logic and legal reasoning.

From a procedural perspective, Western Sahara Campaign UK raised the question of whether a private party is entitled to challenge the validity of EU acts on the basis of alleged violations of international law. Whereas Front Polisario involved an action for annulment of a Council Decision on the conclusion of the Association Agreement, Western Sahara Campaign UK involved a challenge to the agreements via the preliminary ruling procedure. The Council argued that the Court only had jurisdiction with respect to the validity of the EU acts approving the conclusion of the agreements, and not the agreements themselves. The Court found that its jurisdiction to deliver preliminary rulings on the interpretation of EU law and the validity of EU acts includes the jurisdiction to assess whether an international agreement concluded by the EU is compatible with international law binding upon the EU.Footnote ¹⁰ When the Court receives a request for a preliminary ruling concerning the compatibility of such an agreement, the Court found, the request must be understood as relating to the EU act approving its conclusion,Footnote ¹¹ and the review of its validity ‘in the light of the actual content of the international agreement at issue’.Footnote ¹² The EU Treaties set out that the Court shall give preliminary rulings on the interpretation of Union law or on the validity of EU acts.Footnote ¹³ It would appear, then, that the Court does not have the jurisdiction to assess the validity of acts on the plane of international law, such as a treaty concluded between the Union and a third state. Article 218 (11) TFEU sets out a procedure under which the Court may render an opinion on whether an ‘envisaged’ agreement is compatible with the Treaties. This procedure was designed to ensure that the Union would not conclude agreements that could later be found to be incompatible with the EU Treaties, which could then give rise to responsibility for the Union at the international level. Academic commentators have discussed whether the Court may asses the validity of an international agreement via the preliminary reference procedure.Footnote ¹⁴ One may question whether, under the preliminary reference procedure, there is any practical distinction between a review of an international agreement and the internal act approving the agreement. Under both circumstances, if the Court found the agreement or the act approving it violated EU law, the agreement would no longer be applicable in the EU legal order and could give rise to international responsibility. Yet the distinction is still an important one to make. The Court does not have jurisdiction to determine the validity of a treaty concluded with a third party on the international law plane, especially when that third state has not given its consent to that procedure, and does not have a right to take part in the proceedings. In the event that the Court were to find the internal act invalid on the grounds that it violated international law, this would only have effect within the EU legal order, and the EU institutions would have to take steps to rectify the situation to avoid incurring international responsibility.

As in Front Polisario, much of the case turned on the crucial question of the territorial scope of the agreements at issue. For the Court of Justice, the referring court’s questions were all based on the premise that the agreements applied to the territory of Western Sahara, and included the waters adjacent to Western Sahara. It reasoned that the questions of validity only arise if this premise is correct, and so then proceeded to assess the issue of territorial scope of the agreements. As it did in Front Polisario, the Court found that this called for it to resort to the rules of treaty interpretation, as reflected in the 1969 Vienna Convention on the Law of Treaties (‘1969 Vienna Convention’).Footnote ¹⁵ The Court has found that such principles are applicable to the EU’s international agreements to the extent that they reflect principles of customary international law.Footnote ¹⁶ In particular, the Court relied on the general rule of interpretation reflected in Article 31 of the 1969 Vienna Convention, according to which a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.

In order to determine whether the Fisheries Partnership Agreement and its Protocol apply to the territory of Western Sahara, the Court first looked at the provisions in the agreements related to territorial scope.Footnote ¹⁷ The Fisheries Partnership Agreement uses the term ‘the territory of Morocco and to the waters under Moroccan jurisdiction’.Footnote ¹⁸ Vessels flying the flag of an EU Member State are permitted to ‘engage in fishing activities in [the] fishing zones [of the Kingdom of Morocco]’.Footnote ¹⁹ The term ‘Moroccan fishing zone’ is defined as ‘the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’. The question then was whether these terms also relate to the waters adjacent to Western Sahara.

The Court considered the instruments in question – the Association Agreement, the Fisheries Partnership Agreement, and 2013 Protocol – as a ‘body of agreements’, since they all relate to the common aim of intensifying a close relationship between the parties and are closely related to one another.Footnote ²⁰ Thus, the Court found that the concept of ‘territory of Morocco’ in Article 11 of the Fisheries Partnership Agreement should be construed in the same way as the concept of ‘territory of the Kingdom of Morocco’, in Article 94 of the Association Agreement. The Court had previously held in Front Polisario that the concept ‘territory of the Kingdom of Morocco’ in the Association Agreement referred to the geographical area over which Morocco ‘exercises the fullness of the powers granted to sovereign entities by international law, to the exclusion of any other territory, such as that of Western Sahara’.Footnote ²¹ Thus, the Court found that the Fisheries Partnership Agreement does not apply to the waters adjacent to the territory of Western Sahara.

To confirm this conclusion, the Court uses similar logic as it did in Front Polisario to find that the agreements do not apply to the territory of Western Sahara. At paragraphs 63-64, the Court states:

In order to understand these paragraphs, it is important to look at the parts of the Front Polisario judgment to which the Court refers, in particular paragraph 123. Here the Court was looking at whether the Union’s de facto application of the Association Agreement to the territory of Western Sahara represented an ‘agreement between the parties’ to amend its territorial application. The Court reasoned that the Union could not have had such an intention, since to do so the Union would have been applying the agreement in a way that violated the principle of self-determination and the relative effect of treaties. The Court uses the EU’s fidelity to international law as a way to interpret an international agreement. Yet this is the entire argument of Western Sahara Campaign UK, that is, by concluding agreements that apply to the territory of Western Sahara, the EU has violated its own constitutional commitment to uphold international law. The Court makes a distinction between the validity of the agreements at issue, and the factual application of the agreements in practice. Although the proceedings in the UK dealt with the question of the implementation of the agreements, the referring court’s questions only relate to the issue of their validity in the light of international law and Article 3(5) TEU.Footnote ²² Such a distinction allows the Court to focus narrowly on the text of the agreements, without examining the broader context in which those agreements were actually applied by the parties.

Since the Court found that the territory of Western Sahara did not form part of the territory of the Kingdom of Morocco, it went on to find that the waters adjacent to the territory of Western Sahara are not part of the Moroccan fishing zone referred to in Article 2(a) of the Fisheries Partnership Agreement.Footnote ²³ It found that the term ‘Moroccan fishing zone’, used in the Fisheries Partnership Agreement and the 2013 Protocol to determine territorial scope, must be understood as referring to waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco. Thus, ‘Moroccan fishing zone’, for the purposes of that protocol, did not include the waters adjacent to the territory of Western Sahara.Footnote ²⁴ In addition to using the 1969 Vienna Convention to interpret the agreements, the Court also made use of the UN Convention on the Law of the Sea, an international treaty to which the EU is a party, and which is also specifically referred to in the Fisheries Partnership Agreement. Under the UN Convention on the Law of the Sea, a coastal State is entitled to exercise sovereignty or jurisdiction with respect to waters adjacent to its territory and forming part of its territorial sea or of its exclusive economic zone. As the territory of Western Sahara does not form part of the territory of Morocco, the Court reasons, the waters adjacent to the territory of Western Sahara do not form part of the Moroccan fishing zone referred to in the Fisheries Partnership Agreement.

The Court also considered whether the parties to the agreement could have agreed to establish a ‘special meaning’ to the term. In this respect the Court referred to Article 31(4) Vienna Convention, under which ‘[a] special meaning shall be given to a term if it is established that the parties so intended’. Whereas the general rule of treaty interpretation in Article 31 Vienna Convention gives precedence to the text of the treaty, particularly its ordinary meaning in the light of its object and purpose, Article 31(4) Vienna Convention allows an exception by which the subjective intention of the parties can also be considered. The International Court of Justice has established that a very high standard of proof should be met in order to deviate from a treaty term’s ordinary meaning. The Court thus dismisses this argument that the parties intended to give special meaning to term ‘waters falling within the sovereignty of the Kingdom of Morocco’ since it found there to be no evidence to support this. To further support this conclusion, the Court uses argumentation based on the judgment in Front Polisario discussed above. It reasons that the EU could not have intended to support an interpretation that would violate its obligations under international law, since the EU is committed to observing international law. The Court’s reasoning is unconvincing. It appears to use circular logic: the agreements cannot be considered as applying to the territory of Western Sahara, as this would go against the principles the Union is obligated to respect. Using this reasoning, there would be very limited circumstances when the EU could ever violate international law by concluding an international agreement, perhaps only if it were manifestly unlawful, and the Court could not ‘interpret away’ the incompatibility. The Court’s approach also minimises the importance of the actual implementation of the agreement in practice. The fact that the Council and the Commission both took the position that the Fisheries Partnership Agreement and Protocol do apply to Western Sahara seems to play no role in its reasoning.Footnote ²⁵

To further support its conclusion that the agreements do not apply to the waters adjacent to the territory of Western Sahara, the Court refers to the geographical coordinates and baselines of its fishing zone supplied by Morocco, as required by the 2013 Protocol. The Court found that these coordinates did not form part of the text of that protocol, as they were notified on 16 July 2014, one day after the Protocol entered into force, on 15 July 2014.Footnote ²⁶ Although not forming part of the text of the protocol, the Court may have still been open to look at other documents and practice of the parties in order to understand the broader context in which the agreements are interpreted. This would fit with the Court’s previous practice regarding Article 31 Vienna Convention, in which the Court has been quite open to referring to other documents and principles to aid interpretation.Footnote ²⁷

Once the Court found that the Fisheries Partnership Agreement and the 2013 Protocol do not apply to the waters adjacent to the territory of Western Sahara, it decided that there was no reason to proceed further, since the referring Court’s questions are based on this premise. The Court thus structured its reasoning in such a way so that everything turned on the question of territorial application. The Court departs in this respect from the Opinion of Advocate General Wathelet, who had concluded that the Fisheries Partnership Agreement and Protocol did apply to Western Sahara. Whereas the Court confined itself mostly to the text of the instruments, Advocate General Wathelet looked at the broader context of the agreements. This included inter alia the minutes of the third Joint Committee of the Fisheries Agreement; fishing catch statistics provided by the European Commission; and declarations of EU Member States within the Council which suggested certain Member States had reservations about the policy. Considering this broader context, Advocate General Wathelet concluded that it was the intention of the parties to apply the Fisheries Partnership Agreement and Protocol to Western Sahara.Footnote ²⁸

Analysis and discussion

Western Sahara Campaign UK appears to be a rather straightforward decision, one that closely follows the Court’s reasoning in Front Polisario. Yet the case presents interesting and important issues under EU law and international law, and the way in which these sources interact.

The case must also be understood in the broader political context of relations between the EU and Morocco. Had the Court found that agreements at issue violated international law, this would also have had legal and political repercussions. This is not the first time the Court dealt with sensitive legal issues pertaining to occupation, sovereignty and self-determination. In Anastasiou,Footnote ²⁹ the Court of Justice was faced with similar questions relating to products originating from the Turkish Republic of Northern Cyprus. In this case, the Court decided that Member States could not accept phytosanitary certificates accompanying products originating from northern Cyprus which had not been issued by the authorities of the Republic of Cyprus, but by the de facto administration in northern Cyprus.Footnote ³⁰ In Brita,Footnote ³¹ the Court dealt with the question of whether products originating from the West Bank could be given preferential treatment under the EC-Israel Association Agreement. These cases represent much more than customs disputes, but relate to more complex questions of contested sovereignty, often in situations where international negotiations are ongoing. The Court seeks to uphold the integrity of EU law and its Common Commercial Policy while also maintaining the respect for international law, all the while maintaining good relations with its treaty partners. This has often led to the Court using principles of public international law, including treaty law, in a rather flexible and inventive manner. The Court’s approach in the Western Sahara cases has been to find that the agreements do not apply to the territory of Western Sahara. This approach keeps these economic agreements intact while appearing to maintain the EU’s commitment to international law. Such an approach is understandable, and prevents the more critical approach taken by Advocate General Wathelet. Yet as the EU seeks to negotiate new agreements with Morocco, these judgments can have the effect of tying the hands of the negotiators, who may find it difficult to satisfy the requirements set out by the Court in these cases. While I am critical of the way in which the Court approaches international law issues in these cases, the Court’s approach may have the effect of strengthening the international rule of law, by ensuring that future agreements that are to cover the territory of Western Sahara, are negotiated in a way that includes the representatives of the people of Western Sahara and respects their right to self-determination.

Western Sahara Campaign UK also further develops the rather limited case-law relating to Article 3(5) TEU. This provision provides a list of values and interests that the EU is committed to pursuing in its relations with the wider world, including ‘the strict observance and the development of international law’. But is this a justiciable provision, one that can be invoked by private parties to challenge EU acts? This obligation for the EU to respect international law when exercising its powers, both customary international law and international agreements, pre-dates this treaty article, and was confirmed in Poulsen Footnote ³² and in a number of subsequent cases.Footnote ³³ This case law and Article 3(5) TEU show that international law could potentially be used to invalidate an EU act; however, to date the Court has not done so. This raises questions about the conditions under which international law can be used as a benchmark to assess the validity of EU acts. Is any violation of international law binding on the Union capable of being invoked, or only serious violations, such as violations of jus cogens norms? In Air Transport Association of America and Others, a case involving a challenge to an EU directive based on its alleged contravention of principles of public international law, the Court set out certain conditions for assessing the compatibility of EU acts with international law. The Court reasoned that principles of customary international law could be invoked for such purposes where they may call into question the Union’s competence to adopt the act, and where the act is liable to affect individual rights derived from EU law.Footnote ³⁴ Such an approach recognises that many rules of international law apply between states, and may not always be invoked by individuals before domestic courts. The Advocate General in this case rejected this approach as too restrictive, noting that ‘[i]t would be absurd to limit review of the contested acts solely to the question of the competence of the Union and automatically to preclude substantive review of those acts by reference to the most fundamental norms of international law which are relied on in the present case’.Footnote ³⁵

Another question that was raised in the proceedings was whether the Monetary Gold principle was applicable in the proceedings. The principle derives from the Case of the Monetary Gold Removed from Rome Footnote ³⁶ in which the International Court of Justice decided that it would not exercise jurisdiction where the legal interests of a third state not party to the proceedings ‘would not only be affected by a decision, but would form the very subject-matter of the decision’.Footnote ³⁷ While the International Court of Justice has interpreted the principle a number of times, it has only applied it on one other occasion, in East Timor.Footnote ³⁸ Moreover, the principle has been applied almost exclusively in the context of International Court of Justice proceedings, and it is subject to debate whether such principle applies to international arbitration or other international courts.Footnote ³⁹ The principle would appear not to fit with the EU system, however. For one, the principle derives from the idea that the International Court of Justice, a court for the world community, could only exercise its jurisdiction with respect to a state with that state’s consent. While there is a possibility that the Monetary Gold principle could be applied by analogy to other areas of international law, such as arbitration involving the rights of a state not represented, it is difficult to see how it could be applied in the EU context. The Advocate General argued that the Monetary Gold principle could not be applied to the European Court of Justice because ‘it would automatically preclude the possibility of reviewing the compatibility with the EU and FEU Treaties of the international agreements concluded by the Union if the third State that signed the agreement with the Union was not a participant in the proceedings before it’.Footnote ⁴⁰ In this regard, it should be recalled that the European Court of Justice is not an international court in the same way as the International Court of Justice, but closer to a domestic court of one of the parties to the agreements.