R (Western Sahara Campaign UK) v HMRC Commissioners

• Jurisdiction: European Union
• Court: Court of Justice of the European Union
• Judge: Arabadjiev,Fernlund,Vajda,Prechal,Šváby,Wathelet,Toader,Silva de Lapuerta,Tizzano,Safjan,Ilešič,Lenaerts,Bay Larsen,Malenovský,Jarašiūnas,Berger
• Docket Number: (Case C-266/16)
• Date: 27 February 2018

Court of Justice of the European Union (Grand Chamber)

(Lenaerts, President; Tizzano, Vice-President; Silva de Lapuerta, Ilešič, Bay Larsen, Malenovský (Rapporteur), Fernlund and Vajda, Presidents of Chambers; Arabadjiev, Toader, Safjan, Šváby, Berger, Prechal and Jarašiūnas, Judges; Wathelet, Advocate General)

(Case C-266/16)

The Queen (on the application of Western Sahara Campaign UK)

and

Commissioners for Her Majesty's Revenue and Customs and Another 1

Human rights — Self-determination — Obligation erga omnes — Non-self-governing territories — Western Sahara — Whether inclusion of territory of Western Sahara and of waters adjacent thereto within scope of EU — Morocco Fisheries Partnership Agreement, 2006 constituting breach of right of people of Western Sahara to self-determination

Jurisdiction — European Court of Justice — Competence to review legality of international agreements concluded by European Union with third countries — EU — Morocco Fisheries Partnership Agreement, 2006 — Whether Monetary Gold principle applicable

Recognition — Obligation not to recognize an illegal situation resulting from a breach of right to self-determination and not to render aid or assistance in maintaining that situation — Whether European Union breaching this obligation by concluding EU — Morocco Fisheries Partnership Agreement, 2006, in as far as it applies to Western Sahara and waters adjacent thereto

Relationship of international law and municipal law — Treaties — Custom — Judicial review of international agreements concluded by European Union — Whether rules of international law can be invoked in judicial review — Conditions that must be met in order to invoke rules of international law in judicial review — Whether right to self-determination, principle of permanent sovereignty over natural resources and rules of international humanitarian law applicable to conclusion of international agreements concerning exploitation of natural resources of occupied territory can be invoked

Sea — Maritime zones — Territorial sea — Exclusive economic zone — Rights and jurisdiction of coastal State — Fisheries — Whether waters adjacent to territory of Western Sahara forming part of Moroccan fishing zone under EU — Morocco Fisheries Partnership Agreement, 2006

States — Sovereignty — Extent of sovereignty — Morocco — Western Sahara — International recognition of Western Sahara as a non-self-governing territory — Whether agreements concluded between Morocco and European Union applicable to Western Sahara

Territory — Non-self-governing territory — Western Sahara — UN Charter, 1945, Article 73 — Principle of permanent sovereignty over natural resources — Administering power — Rights and obligations of administering powers — Power to conclude international agreements applicable to non-self-governing territory — Whether Morocco administering power of Western Sahara

Treaties — Interpretation — Vienna Convention on the Law of Treaties, 1969, Article 31 — Whether binding on European Union — Subsequent agreement between parties — Special meaning given by parties to term of treaty

Treaties — Application — Scope — Principle that treaty not applicable to third parties — Agreements between European Union and Morocco — Whether applicable to Western Sahara — Whether Western Sahara a third party

War and armed conflict — Occupation — Existence of occupation — Powers of occupant — Treaty-making power in relation to occupied territory — Exploitation of natural resources of occupied territory — Hague Convention IV of 1907 — Articles 42, 43 and 55 of the Hague Regulations — Fourth Geneva Convention, Article 64(2) — Whether lex specialis in comparison to principle of permanent sovereignty over natural resources — Whether Morocco occupying power of Western Sahara — The law of the European Union

Summary:2The facts:—Western Sahara Campaign UK (“the claimant”) was an independent voluntary organization established in the United Kingdom whose aim was to support the recognition of the right of the people of Western Sahara to self-determination.

The claimant instituted proceedings against the Commissioners for Her Majesty's Revenue and Customs, challenging the validity of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, on the one part, and the Kingdom of Morocco, on the other part, 1996 (“the Association Agreement”).

The claimant also instituted proceedings against the Secretary of State for Environment, Food and Rural Affairs, challenging the validity of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco, 2006 (“the FPA”), the Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, 2013 (“the Protocol”), Council Regulation (EC) No 764/2006 approving the FPA on behalf of the EU, Decision 2013/785/EU approving the Protocol, and Regulation (EU) No 1270/2013 by virtue of which the Council allocated fishing opportunities to the Member States pursuant to the FPA and the Protocol.

The claimant contended that the Association Agreement, the FPA, the Protocol and the acts of EU secondary legislation which allocated fishing opportunities to the Member States were contrary to Article 3(5) of the Treaty on the European Union, 1992 (“the TEU”), by virtue of which the European Union was obliged to contribute to the strict observance of international law, and in particular the principles of the Charter of the United Nations, 1945 (“the UN Charter”), in its relations with the wider world, in so far as those various international agreements were applicable to the territory of Western Sahara and to the waters adjacent thereto.

The claimant alleged that the inclusion of the territory and waters of Western Sahara within the territorial scope of the contested acts was manifestly incompatible with international law and, more specifically, with the right to self-determination, Article 73 of the UN Charter, the principle of permanent sovereignty over natural resources, the provisions of the United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”), the rules of international humanitarian law applicable to military occupation, and the obligations incumbent on States and other subjects of international law to bring to an end serious breaches of a peremptory norm of international law, not to recognize an illegal situation resulting from such a breach, and not to provide assistance for the commission of an internationally wrongful act. Further, the claimant argued that the Association Agreement, the FPA and the Protocol were concluded neither on behalf of the people of Western Sahara nor in consultation with their representatives. Last, the claimant

contended that there was no evidence that the people of Western Sahara had derived any benefit from those international agreements concluded between the European Union and Morocco.

The English High Court stayed its proceedings on the matter and sought a preliminary ruling from the Court of Justice of the European Union (“the Court of Justice”) (see 181 ILR 263, above). While these proceedings were pending, the Court of Justice delivered its judgment in Polisario,3 ruling that the Association Agreement was not applicable to the territory of Western Sahara. Given this ruling, the English High Court limited the scope of the preliminary reference to the FPA, the Protocol and the European Union secondary legislation approving and implementing these agreements.

Opinion of the Advocate General

Held:—The FPA and the Protocol were incompatible with Article 3(5) of the TEU in that they applied to the territory of Western Sahara and to the waters adjacent thereto. Council Regulation (EC) No 764/2006, Council Decision 2013/785/EU and Council Regulation (EU) No 1270/2013 were thus invalid.

(1) The Court of Justice had jurisdiction to review the act of the Council approving the conclusion of an international agreement, which included the review of the internal lawfulness of that decision in the light of the agreement in question. In that context, the Court of Justice could review the lawfulness of the act of the Council (including the provisions of the international agreement the conclusion of which it approved) with regard to the TEU and the Treaty on the Functioning of the European Union, 2007 (“the TFEU”) and the constitutional principles stemming from those Treaties, including respect for fundamental rights and international law, in accordance with Article 3(5) of the TEU. Therefore, the Court of Justice had jurisdiction to annul (in case of an action for annulment) or to declare invalid (in case of a request for a preliminary ruling) the Council decision approving the conclusion of the international agreement at issue and to declare that agreement incompatible with the TEU and the TFEU (paras. 54–5).

(2) The international agreement continued to bind the parties in international law and it was for the European Union institutions to eliminate the incompatibilities between that agreement and the TEU and TFEU or, failing that, to denounce that agreement or withdraw from it (para. 56).

(3) The principle stated by the International Court of Justice (“the ICJ”) that that court could not exercise its jurisdiction to settle a dispute between two States where, in order to do so, it had to examine the conduct of a third State which was not a party to the proceedings,4 was not applicable in proceedings before the Court of Justice (para. 57).

(4) The FPA and the Protocol were applicable to Western Sahara and the waters adjacent thereto.

(a) The FPA and the Protocol had to be interpreted in accordance with the rules of interpretation laid down in Article 31 of the Vienna Convention on the Law of Treaties, 1969 (“the VCLT”)5 (paras. 63–4 and 73).

(b) The...