EU-Morocco Trade Relations, Western Sahara and International Law: The Saga Continues in C-266/16 Western Sahara Campaign UK
This February, the Court of Justice of the European Union delivered a judgment in which, one year after the C-104/16 P Council v Front Polisario judgment, once more the EU’s trade relations with Morocco took centre stage. Whereas in Front Polisario the Court was faced with the question of the validity of the EU-Morocco Association Agreement (AA) and Liberalisation Agreement (LA), this time the Court was tasked with determining the validity of the EU-Morocco Fisheries Partnership Agreement (FPA), the 2013 Protocol thereto and the EU implementing acts in the context of a preliminary ruling procedure requested by the British High Court. The national proceedings were brought by the voluntary organization Western Sahara Campaign UK, which sought to challenge certain British policies and practices implementing the aforementioned legal acts, as far as they pertained to goods originating in and fisheries policy related to Western Sahara. As in Front Polisario, the main issue was the application of these agreements to the territory of and products originating in Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but considered by Morocco to be an integral part of its sovereign territory (for background, see our Article on T-512/12 Front Polisario v Council).
Given that this is the first request for a preliminary reference concerning the validity of international agreements concluded by the EU and their acts of conclusion, it also raised some new procedural questions, especially concerning the Court’s jurisdiction. In this case, the Court readily accepted that it has jurisdiction to give preliminary rulings on the interpretation and validity of all EU acts, ‘without exception’. This is noteworthy in and of itself, as it firmly establishes the Court’s jurisdiction when it comes to reviewing the EU’s international agreements in light of international law, albeit indirectly in the context of ruling on the validity of the EU act approving the international agreement in question (Judgment paras 48-51). Such jurisdiction is in line with the Court’s recent case-law that provides for the Court’s comprehensive jurisdiction, especially in light of the Court’s finding that the Treaties have created a ‘complete system’ of judicial review entrusted to the Courts of the EU (Rosneft para 66).
Before we turn to the Court’s examination of the validity of the FPA and the 2013 Protocol, it is worth making some preliminary remarks. The issue of the applicability of the FPA and the 2013 Protocol to Western Sahara, as well as the validity of these agreements must be seen in the wider context of the status of Western Sahara: although Morocco considers Western Sahara to be an integral part of the Moroccan State, the international community considers it to be a non-self-governing territory to be decolonised in accordance with the right to self-determination. And even though Western Sahara has a distinct status as a matter of international law, saliently, both the Council and the Commission have explicitly stated that the FPA and its Protocol are indeed applicable to (the waters adjacent to) Western Sahara (Western Sahara Campaign UK, Opinion of AG Wathelet para 144). This is a small departure from the facts of Front Polisario, where the application of the LA to Western Sahara was tacitly accepted by the Council, described by AG Wathelet as ‘application without recognition’ (Front Polisario, Opinion of AG Wathelet para 67), and the Commission denied the de jure applicability of the AA and the LA to Western Sahara. One can only guess what motivated the Council and Commission to declare the FPA and 2013 Protocol applicable to Western Sahara, but it seems that they sought the Court’s confirmation of the legality of the agreements’ de facto and de jure application to Western Sahara. Perhaps unsurprisingly, considering that the Court declared that the AA between the EU and Morocco could not be interpreted as including Western Sahara within its territorial scope (for an analysis of Front Polisario and the Court’s argumentation, see here), the Court did not agree with the Council and Commission, for a number of reasons.
In a finding reminiscent of the Front Polisario case(s), the Court declared that the starting point for the question of validity of the FPA and the 2013 Protocol was the premise that these agreements are in fact applicable to the waters adjacent to the territory of Western Sahara. Consequently, before turning to the substance of the questions referred, the Court determined that it would first have to establish whether this premise is indeed correct. To that end, the Court started by addressing the territorial scope of the agreements in question, by examining the provisions on territorial scope in the FPA and the Protocol 2013. As it had done in Front Polisario, the Court relied on the customary rules of treaty interpretation reflected in the Vienna Convention on the Law of Treaties (VCLT) in order to interpret the agreements’ provisions on territorial scope. The main issue was whether phrases referring to ‘the territory of Morocco’ and ‘waters under Moroccan jurisdiction’ (Article 11 FPA), ‘fishing zones’ of Morocco (Article 5 FPA), and ‘waters falling within the sovereignty or jurisdiction’ of Morocco (Article 2(a) FPA) were to be understood as including the waters adjacent to Western Sahara.
In Front Polisario, the distinct status of Western Sahara by virtue of the principle of self-determination was one of the main reasons (in addition to the rule on the relative effect of treaties, or pacta tertiis, Article 34 VCLT) the Court declared that the AA between the EU and Morocco should be interpreted as not applicable to Western Sahara. As a rule of international law applicable in the relations between the parties, the Court ruled that the principle of self-determination had to be taken into account when interpreting the territorial scope of the AA in accordance with the rule codified in Article 31(3)(c) VCLT, and that the application to Western Sahara was thus excluded (Front Polisario paras 88-92).
In interpreting the territorial scope of the FPA, the Court first relied on the structure of the EU-Morocco trade agreements, emphasising the overarching role of the AA. According to the Court, the AA frames the body of agreements between the EU and Morocco, including the FPA. Although the FPA does not explicitly refer to the AA, Article 1 of the 2013 Protocol (which, according to the Court, constitutes a ‘subsequent agreement’ in the sense of Article 31(3)(a) VCLT) establishes that both the 2013 Protocol and the FPA form part of the AA. Logically, then, the Court relied on the (limited) interpretation of ‘territory of Morocco’ of Article 94 AA in Front Polisario to similarly interpret the concept of ‘territory of Morocco’ in Article 11 FPA (Judgment paras 59-64).
Secondly, in interpreting the phrase ‘waters falling within the sovereignty or jurisdiction’, a phrase absent from the AA, the Court relied on the UN Convention on the Law of the Sea (UNCLOS) which is binding on the EU and is explicitly referred to in the preamble and in Article 5(4) of the FPA (Judgment para 58). Also here, the Court applied a limited interpretation of ‘territorial waters’ (Article 2(1) UNCLOS) and of ‘exclusive economic zone’ (Articles 55 and 56 UNCLOS) as only including waters adjacent to the territory of a State as internationally recognised, thereby excluding the waters adjacent to Western Sahara (Judgment paras 65-69).
Third and last, the Court considered whether the EU and Morocco had intended to give a special meaning to the territorial scope provisions of the FPA and the 2013 Protocol in the sense of Article 31(4) VCLT. When considering a special meaning of the expression ‘waters falling within the sovereignty’ of Morocco as including Western Saharan waters, the Court pointed out that agreeing to such a special meaning would be contrary to the EU’s obligations under international law, ie self-determination and the relative effect of treaties, stopping short of reprimanding the EU for potentially recognising Moroccan sovereignty over Western Sahara (Judgment paras 63, 71). Instead, the Court appeared to indirectly remind the EU of its duty not to recognise as lawful the situation resulting from Morocco’s breach of the right to self-determination of Western Sahara, by stating that the EU ‘could not properly support’ any intention of Morocco to include the waters of Western Sahara.
Interestingly, the Council and Commission had tried arguing that Morocco might be regarded a ‘de facto administrative power’, thus extending ‘waters falling within the jurisdiction of Morocco’ to Western Saharan waters. A problem with this ‘special meaning’ argument, pointed out by the Court, was that Morocco has categorically denied that it is an occupying or administrative power, consistent with its view that Western Sahara is an integral part of Morocco (Judgment paras 70-73).
The 2013 Protocol does not contain specific territorial scope provisions, but refers generally to ‘Moroccan fishing zones’. As the Court had already interpreted this phrase in the context of the FPA, it declared that the phrase must also be understood as excluding Western Saharan waters. An explicit notification by Morocco on the geographical coordinates of the fishing zone, as foreseen by the 2013 Protocol, and including Western Saharan waters, were conveniently set aside by the Court based on a technicality: after all, Morocco submitted this notification one day after the deadline, therefore – according to the Court – excluding them from the text of the Protocol (Judgment, para 81).
All in all, the Court upheld its earlier stance on the complex and politically sensitive issues relating to EU-Morocco trade relations and Western Sahara. Although the EU and Morocco probably would have preferred a different outcome as evidenced by their claims of applicability, the Court’s consistent exclusion of Western Sahara ensures the compatibility of the AA, the FPA and the 2013 Protocol with international law. Moreover, it allowed the Court to avoid having to address the question of the (il)legality of not only the EU’s, but also Morocco’s conduct in light of international law (see, eg, the rather critical Opinion of AG Wathelet, paras 143ff). With the legal questions relating to the applicability of the AA, the FPA and the 2013 Protocol settled by the Court’s judgments, the practical issues relating to the exclusion of Western Sahara and its products are ever-present. Matters such as product labelling, effective control of products, and preferential tariffs remain to be solved, particularly by the Commission.