Opinion of Advocate General of the Court of Justice of the EU in Western Sahara Campaign UK v Secretary of State for Environment, Food and Rural Affairs
OPINION OF ADVOCATE GENERAL
WATHELET
delivered on 10 January 2018 |1|
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
(Request for a preliminary ruling from
the High Court of Justice (England & Wales), Queen's Bench Division
(Administrative Court), United Kingdom)
(Reference for a preliminary ruling –
Partnership Agreement between the European Community and the Kingdom of
Morocco in the fisheries sector – Protocol setting out the fishing
opportunities provided for by the agreement – Acts approving the
conclusion of the agreement and of the protocol – Regulations
allocating among the Member States the fishing opportunities set out by
the protocol – Validity in the light of Article 3 TEU and of
international law – Application to Western Sahara and the waters
adjacent thereto)
Table of contents
I. Introduction
1. The
present request for a preliminary ruling concerns the validity of the
Fisheries Partnership Agreement between the European Community and the
Kingdom of Morocco |2|
('the Fisheries Agreement'), of the Protocol between the European Union
and the Kingdom of Morocco setting out the fishing opportunities and
financial contribution provided for in the Fisheries Agreement |3|
('the 2013 Protocol'), and of Council Regulation (EU) No 1270/2013
of 15 November 2013 on the allocation of fishing opportunities
under the 2013 Protocol, |4|
in that they establish and implement the exploitation by the European
Union and the Kingdom of Morocco of the biological maritime resources of
Western Sahara.
2. This
is the first request for a preliminary ruling on the validity of the
international agreements concluded by the Union and their acts of
conclusion. In that sense, it raises new questions of law concerning the
Court's jurisdiction to rule on the validity of international
agreements concluded by the Union, the conditions which individuals must
satisfy in order to rely on the rules of international law in the
context of the examination of the validity of those international
agreements and also the interpretation of those rules. Those questions
are of fundamental importance as regards judicial review of the external
actions of the Union and the process of decolonisation of Western
Sahara which has been under way since the 1960s.
3. Admittedly,
a number of the answers to those questions will have political
ramifications. However, as the International Court of Justice has held,
'the fact that a legal question also has political aspects, "as, in the
nature of things, is the case with so many questions which arise in
international life", does not suffice to deprive it of its character as a
"legal question" and to "deprive the Court of a competence expressly
conferred on it by its Statute ...". Whatever its political aspects, the
Court cannot refuse to admit the legal character of a question which
invites it to discharge an essentially judicial task ...'. |5|
II. Legal context
A. The Fisheries Agreement
4. The
Fisheries Agreement follows on from a series of fisheries agreements
concluded after 1987 between the Union and the Kingdom of Morocco. Its
conclusion was approved on behalf of the Community by Regulation
No 764/2006. Pursuant to Article 17 of that regulation, it
entered into force on 28 February 2007. |6|
5. In
the words of its preamble and Articles 1 and 3, the Fisheries
Agreement establishes a partnership designed to contribute to the
effective implementation of the fisheries policy of the Kingdom of
Morocco and, more broadly, to the sustainable preservation and
exploitation of living sea resources, by means of rules on economic,
financial, technical and scientific cooperation between the parties, the
conditions governing access by fishing vessels flying the flag of a
Member State of the Union to Moroccan fishing zones, the arrangements
for policing fishing activities in those zones, and cooperation between
undertakings in the fisheries sector.
6. Article 2, entitled 'Definitions', provides as follows:
'For the purposes of this Agreement, the Protocol and the Annex:
(a) "Moroccan
fishing zone" means the waters falling within the sovereignty or
jurisdiction of the Kingdom of Morocco;
...'
7. Article 5,
entitled 'Access by Community vessels to fisheries in Moroccan fishing
zones', provides:
'1. Morocco
undertakes to authorise [Union] vessels to engage in fishing activities
in accordance with this Agreement, including the Protocol and Annex
thereto.
...
4. The
[Union] undertakes to take all the appropriate steps required to ensure
that its vessels comply with this Agreement and the legislation
governing fisheries in the waters over which Morocco has jurisdiction,
in accordance with the United Nations Convention on the Law of the Sea.'
'1. The
[Union] shall grant Morocco a financial contribution in accordance with
the terms and conditions laid down in the Protocol and Annexes. This
contribution shall be composed of two related elements, namely:
(a) a
financial contribution for access by Community vessels to Moroccan
fishing zones, without prejudice to the fees due by Community vessels
for the licence fee;
(b) [Union]
financial support for introducing a national fisheries policy based on
responsible fishing and on the sustainable exploitation of fisheries
resources in Moroccan waters.
2. The
component of the financial contribution referred to in point (b) of
paragraph 1 shall be determined by mutual agreement and in
accordance with the Protocol in the light of objectives identified by
the two parties to be achieved in the context of the sectoral fisheries
policy in Morocco and an annual and multiannual programme for its
implementation.'
9. Article 11, entitled 'Area of application', provides as follows:
'This Agreement shall apply, on the one hand,
to the territories in which the [FEU] Treaty ... applies, under the
conditions laid down in that Treaty and, on the other, to the territory
of Morocco and to the waters under Moroccan jurisdiction.'
10. Article 13,
entitled 'Settlement of disputes', provides that 'the contracting
parties shall consult each other on any dispute concerning the
interpretation or application of this Agreement'.
11. According
to Article 16, 'the Protocol and the Annex and appendices thereto
shall form an integral part of this Agreement'. That protocol and the
Annex and the Appendices thereto had been concluded for a period of four
years. |7| They are therefore no longer in force, but have been replaced by the 2013 Protocol and the Annex and Appendices thereto.
B. The 2013 Protocol
12. On
18 November 2013, the Union and the Kingdom of Morocco signed the
2013 Protocol, which sets out the fishing opportunities and financial
contribution set out in the Fisheries Agreement. It entered into force
on 15 July 2014. |8|
13. Article 1 of that protocol, entitled 'General principles', provides as follows:
'This Protocol, together with its Annex and
Appendices, form an integral part of the [Fisheries Agreement] ... which
forms part of the [Association] Agreement ...
The Protocol is implemented in accordance with ...
Article 2 of the same Agreement concerning the respect for
democratic principles and fundamental human rights.'
14. Article 2,
entitled 'Period of application, duration and fishing opportunities',
provides:
'From the application of this Protocol and for a
period of four years, the fishing opportunities granted under
Article 5 of the Fisheries Agreement shall be those stated in the
table attached hereto.
The first subparagraph above shall apply subject to the provisions of Articles 4 and 5 of this Protocol.
...'
15. In the words of Article 3, entitled 'Financial contribution':
'1. The
estimated total annual value of the Protocol is
EUR 40 000 000 for the period referred to in
Article 2, distributed as follows:
(a) EUR
30 000 000 by way of the financial contribution referred to
in Article 7 of the Fisheries Agreement, allocated as follows:
(i) EUR 16 000 000 as a financial contribution for access to the resource;
(ii) EUR 14 000 000 as support for the fisheries sector in Morocco;
(b) EUR
10 000 000 corresponding to the estimated amount of fees owed
by shipowners under the fishing licences granted under Article 6
of the Fisheries Agreement and in accordance with the provisions of
Chapter I, Sections D and E, of the Annex to this Protocol.
...
4. The
financial contribution referred to in paragraph 1(a) shall be paid
to the Treasurer-General of the Kingdom of Morocco into an account
opened with the Public Treasury of the Kingdom of Morocco, the
references of which shall be communicated by the Moroccan authorities.
5. Subject
to the provisions of Article 6 of this Protocol, the Moroccan
authorities shall have full discretion regarding the use to which this
financial contribution is put.'
16. Article 6,
entitled 'Support for sectoral fisheries policy in Morocco', provides
as follows:
'1. The
financial contribution referred to in Article 3(1)(a)(ii) of this
Protocol will help to develop and implement Morocco's sectoral fisheries
policy as part of the "Halieutis" strategy for developing the fisheries
sector.
2. The
contribution shall be allocated and managed by Morocco on the basis of
the setting up by the two parties, by mutual agreement within the Joint
Committee, of the objectives to be met and of the relevant annual and
multiannual programme, in accordance with the "Halieutis" strategy and
based on an estimation of the anticipated impact of the projects to be
carried out.
...
6. Depending
on the nature of the projects and the duration of their implementation,
Morocco shall submit a report to the Joint Committee on the
implementation of projects that have been completed with sectoral
support as provided for by this Protocol; the report shall include
information on any social and economic consequences, particularly the
impact on employment, investment and any other quantifiable
repercussions of the measures taken, together with their geographical
distribution. This information is to be prepared on the basis of
indicators to be defined in greater detail by the Joint Committee.
7. Morocco
shall also submit, prior to the expiry of this Protocol, a final report
on the implementation of the sectoral support provided for by this
Protocol, including the elements referred to in the paragraphs above.
8. The two
parties shall, if necessary, continue to monitor the implementation of
the sectoral support beyond the expiry of this Protocol or, as the case
may be, in the event of its suspension in accordance with the provisions
of this Protocol.
...'
C. Regulation No 764/2006
17. In the
words of recital 1, 'the [Union] and the Kingdom of Morocco have
negotiated and initialled a Fisheries Partnership Agreement providing
[EU] fishermen with fishing opportunities in the waters falling within
the sovereignty or jurisdiction of the Kingdom of Morocco'.
18. According
to Article 1, 'the [Fisheries Agreement] is hereby approved on
behalf of the [Union]'.
D. Decision 2013/785
19. In
accordance with recital 2, 'the Union has negotiated with the Kingdom of
Morocco a new Protocol granting vessels of the Union fishing
opportunities in the waters falling within the sovereignty or
jurisdiction of the Kingdom of Morocco as regards fishing'.
20. In the words of Article 1, 'the [2013 Protocol] is approved on behalf of the Union'.
E. Regulation No 1270/2013
21. In
accordance with recital 2, 'the Union has negotiated with the Kingdom of
Morocco a new Protocol to the Partnership Agreement which grants
European Union vessels fishing opportunities in the waters falling
within the sovereignty or jurisdiction of the Kingdom of Morocco as
regards fishing. The new Protocol was initialled on 24 July 2013'.
22. Article 1(1)
allocates among the Member States the fishing opportunities established
under the 2013 Protocol. According to that allocation, the United
Kingdom of Great Britain and Northern Ireland is to receive a quota of
4 525 tonnes in the industrial pelagic fishing zone.
III. The dispute in the main proceedings and the questions referred for a preliminary ruling
23. Western
Sahara Campaign UK ('WSC') is an independent voluntary organisation
established in the United Kingdom whose aim is to support the
recognition of the right of the people of Western Sahara to
self-determination.
24. WSC has
brought two related claims against the Commissioners for Her Majesty's
Revenue and Customs, United Kingdom ('HMRC') and the Secretary of State
for Environment, Food and Rural Affairs, United Kingdom ('the Secretary
of State').
25. HMRC is the
defendant in the first action, whereby WSC disputes the preferential
tariff treatment of products originating in Western Sahara, certified as
products originating in the Kingdom of Morocco. The Secretary of State
is the defendant in the second action, whereby WSC disputes the
opportunity offered to the Secretary of State by the contested measures
to issue licences to fish in the waters adjacent to Western Sahara.
26. In those
actions, WSC disputes the legality of the Euro-Mediterranean Agreement
establishing an association between the European Communities and their
Member States, of the one part, and the Kingdom of Morocco, of the other
part, signed in Brussels on 26 February 1996 (OJ 2000 L 70,
p. 2, 'the Association Agreement') and the Fisheries Agreement in
so far as they apply to Western Sahara. In WSC's submission, those
agreements are invalid on the ground that they are contrary to the
general principles of EU law and to Article 3(5) TEU, under which
the Union is required to respect international law. In that connection,
WSC maintains that those agreements, concluded in the context of an
illegal occupation, infringe several rules of international law, in
particular the right of the people of Western Sahara to
self-determination, Article 73 of the Charter of the United
Nations, the principle of permanent sovereignty over natural resources
and the rules of international humanitarian law applicable to military
occupations.
27. HMRC and the Secretary of State contend that WSC does not have locus standi
to rely on the rules of international law in order to challenge the
validity of those agreements and that in any event its actions, which
seek to challenge before the Courts of England and Wales the policy of
the Kingdom of Morocco with respect to Western Sahara, are not
justiciable. As regards the substance, they maintain that there is
nothing in those agreements to substantiate the conclusion that the
Union has recognised or assisted in the infringement of binding rules of
international law. Furthermore, they submit that the fact that the
Kingdom of Morocco continues to occupy Western Sahara does not preclude
the conclusion with the Kingdom of Morocco of an agreement on the
exploitation of the natural resources of that territory and that in any
event the parties to those agreements recognise that that exploitation
must benefit the people of that territory.
28. In that
context, the High Court of Justice (England & Wales), Queen's Bench
Division (Administrative Court) ('the High Court' or 'the referring
court') considers that '[the institutions of the European Union are not]
always entitled to be indifferent to where the sovereign borders of a
[non-member State] end, particularly where there is an unlawful
occupation of territory of another [State]', |9|
without infringing the principles of the Charter of the United Nations
and the principles that bind the European Union, however wide the
discretion which they enjoy with respect to foreign affairs may be.
29. The
referring court is of the view that even though the Kingdom of Morocco
claims that Western Sahara is part of its sovereign territory, that
claim is not recognised by the international community generally or by
the Union in particular. On the contrary, the referring court considers
that the presence of the Kingdom of Morocco is an occupation, which it
even characterises as a 'continued occupation'. |10|
The question, therefore, is whether it is lawful for an organisation
such as the European Union, which respects the principles of the United
Nations Charter, to conclude with a third State an agreement relating to
a territory outside the recognised borders of that State.
30. In that
regard, the referring court considers that, even if the institutions of
the Union did not make a manifest error of assessment in concluding that
the continued occupation of the territory of Western Sahara by the
Kingdom of Morocco does not preclude, under international law, the
conclusion of any agreement for the exploitation of the natural
resources of the territory, the fundamental question is whether the
specific agreements concerned are contrary to certain principles of
international law and whether sufficient account has been taken of the
will of the population of Western Sahara and its recognised
representatives.
31. According
to that court, there is an arguable case of a manifest error of
assessment by the institutions of the Union in their application of
international law, in that those agreements were concluded without the
Kingdom of Morocco recognising its status as an administrating power or
complying with either the obligations arising under Article 73 of
the Charter of the United Nations or the obligation to support the
self-determination of the people of Western Sahara.
32. In those
circumstances, the High Court decided to stay proceedings and to refer
the following questions to the Court of Justice for a preliminary
ruling:
'(1)
In the [Association Agreement], do
the references to "Morocco" in Articles 9, 17 and 94 and Protocol 4
refer only to the sovereign territory of Morocco as recognised by the
United Nations and the European Union ... and therefore preclude products
originating in Western Sahara from being imported into the EU free of
customs duties pursuant to the Association Agreement?
(2) If
products originating in Western Sahara may be imported into the EU free
of customs duties pursuant to the Association Agreement, is the
Association Agreement valid, having regard to the requirement under
Article 3(5) [TEU] to contribute to the observance of any relevant
principle of international law and respect for the principles of the
United Nations Charter and the extent to which the Association Agreement
was concluded for the benefit of the Saharawi people, on their behalf,
in accordance with their wishes and/or in consultation with their
recognised representatives?
(3) Is
the [Fisheries Agreement] (as approved and implemented by Regulation
No 764/2006, Decision 2013/785 and Regulation No 1270/2013)
valid, having regard to the requirement under Article 3(5) [TEU] to
contribute to the observance of any relevant principle of international
law and respect for the principles of the United Nations Charter and
the extent to which the [Fisheries Agreement] was concluded for the
benefit of the Saharawi people, on their behalf, in accordance with
their wishes, and/or in consultation with their recognised
representatives?
(4) Is
the [applicant] entitled to challenge the validity of EU acts based on
alleged breach of international law by the EU, having regard, in
particular, to:
(a)
the fact that, although the
[applicant] has standing under national law to impugn the validity of
the EU acts, it does not assert any rights under EU law; and/or
(b)
the principle in Case of the
Monetary Gold Removed from Rome in 1943 (ICJ Reports 1954, p. 19)
that the International Court of Justice may not make findings that
impugn the conduct of, or affect the rights of, a State that is not
before the Court and has not consented to be bound by the decisions of
the Court?'
33. By order of
23 November 2016, the referring court joined the Confédération
marocaine de l'agriculture et du développement rural (Comader) as an
interested party in the proceedings pending before it.
IV. Procedure before the Court
34. The request
for a preliminary ruling was lodged at the Court Registry on
13 May 2016. The Spanish, French and Portuguese Governments and the
Council and the European Commission lodged written observations.
35. By letter
of 17 January 2017, the Court asked the referring court whether, in
the light of the judgment of 21 December 2016, Council v Front Polisario (C-104/16 P, EU:C:2016:973), it wished to maintain its first and second questions.
36. By letter
of 3 February 2017, the referring court withdrew its first and
second questions, as it considered that there was no longer any need to
answer them.
37. By letter
of 17 February 2017, the Court invited the parties to the main
proceedings and the interveners to comment before it on any impact that
the judgment of 21 December 2016, Council v Front Polisario
(C-104/16 P, EU:C:2016:973) might have on the answer to the third
question, and to answer a number of questions within three weeks, which
WSC, Comader, the Spanish and French Governments |11| and the Council and the Commission did.
38. A hearing
was held on 6 September 2017, at which WSC, Comader, the Spanish
and French Governments and the Council and the Commission submitted
their oral observations.
V. The third and fourth questions
39. By its
third question, the referring court asks the Court to rule on the
validity of the Fisheries Agreement, as approved by Regulation
No 764/2006 and implemented by the 2013 Protocol (approved by
Decision 2013/785) and Regulation No 1270/2013, having regard to
Article 3(5) TEU, which places the EU under an obligation to
'contribute ... to the strict observance ... of international law [and]
respect for the principles of the United Nations Charter' and, moreover,
to the extent to which that agreement was concluded for the benefit of
the Saharawi people, on their behalf, in accordance with their wishes
and/or in consultation with their recognised representatives.
40. By its
fourth question, the referring court asks the Court to rule on the
conditions on which international law may be relied on in the context of
the judicial review of the acts of the Union by a request for a
preliminary ruling on validity.
41. To my mind these questions are closely linked and should be examined together.
A. The jurisdiction of the Court
42. The third
question targets the Fisheries Agreement (as supplemented by the 2013
Protocol) and asks the Court to rule on the validity of that
international agreement concluded by the Union. However, it also refers
to the acts approving and implementing that agreement that were adopted
by the Council.
43. The Council
contends that the Court does not have jurisdiction to give a
preliminary ruling on the validity of the Fisheries Agreement, since, as
an international agreement, it is not an act of the institutions within
the meaning of subparagraph (b) of the first paragraph of
Article 267 TFEU. In the Council's submission, the validity of
an international agreement concluded by the Union can be examined only
before that agreement is concluded, by means of the opinion procedure
laid down in Article 218(11) TFEU. In the alternative, the
Council, supported by the Commission and the Spanish and French
Governments, maintains that the request for a preliminary ruling may be
considered to relate in reality to the validity of the acts approving
the conclusion of the Fisheries Agreement and the 2013 Protocol, namely
Regulation No 764/2006 and Decision 2013/785.
44. To my mind, that plea of lack of jurisdiction must be rejected, for the following reasons.
45. In the
words of subparagraph (b) of the first paragraph of Article 267
TFEU, the Court is to have jurisdiction to give preliminary rulings
concerning 'the validity and interpretation of acts of the institutions ...
of the Union'.
46. It is
settled case-law that, for the purposes of that provision, an
international agreement concluded by the Union constitutes, 'in so far
as concerns [the Union], an act of one of the institutions of the
[Union]' within the meaning of Article 267 TFEU. |12|
On that basis, the Court has often had occasion to interpret, by way of
a preliminary ruling, provisions of such agreements concluded by the
Union, |13| including, moreover, the Fisheries Agreement. |14|
47. Furthermore,
according to the Court, the review of validity in the preliminary
ruling procedure extends to all acts of the institutions 'without
exception', |15| as the FEU Treaty has 'established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete
system of legal remedies and procedures designed to ensure judicial
review of the legality of European Union acts, and has entrusted such
review to the Courts of the European Union'. |16|
48. That said,
the international agreements concluded by the Union are part of the
international legal order, since they are concluded with a third party,
and at the same time of the legal order of the Union.
49. Although in
the international legal order an international agreement may be
declared invalid only on one of the grounds exhaustively listed in
Articles 46 to 53 of the Vienna Convention on the Law of Treaties,
concluded in Vienna on 23 May 1969 |17|
('the Vienna Convention on the Law of Treaties'), it follows from
Article 218(11) TFEU that 'the provisions of ... an agreement
[entered into by the European Union] must ... be entirely compatible with
the [EU and FEU] Treaties and with the constitutional principles
stemming therefrom'. |18|
50. It is in
order to avoid as far as possible the legal and international political
complications that would result if an international treaty concluded by
the European Union were incompatible with the EU and FEU Treaties yet
remained valid in international law that the authors of the Treaties
created the preventive opinion procedure now laid down in
Article 218(11) TFEU.
51. In order to
found its jurisdiction to assess the compatibility of international
agreements in the opinion procedure, the Court has also relied on the
fact that that jurisdiction was in any event conferred on it by virtue
of Articles 258, 263 and 267 TFEU. It has held that 'the
question whether the conclusion of a given agreement is within the power
of the [Union] and whether, in a given case, such power has been
exercised in conformity with the provisions of the Treaty [was], in
principle a question which [might] be submitted to the Court of Justice,
either directly, under Article [258 TFEU] or Article [263 TFEU], or in
accordance with the preliminary procedure'. |19|
52. The Court
therefore has jurisdiction to examine 'all questions that are liable to
give rise to doubts as to the substantive or formal validity of the
[international] agreement with regard to the [EU and FEU]
Treaties'. |20|
53. In that
sense, in order to avoid the abovementioned complications, where the
Court has delivered a negative opinion on the compatibility of an
'envisaged' international agreement with the EU and FEU Treaties, that
agreement may not enter into force unless it has first been
amended. |21| In any event, the Court will be able to review ex post facto the substantive or formal compatibility |22|
of the agreement with the EU and FEU Treaties if an action for
annulment of the agreement is brought before it or if a reference is
made to it for a preliminary ruling on the validity of the agreement.
54. It follows
from the foregoing that the Court has jurisdiction to review the act of
the Council approving the conclusion of an international
agreement, |23| which includes the review of the internal lawfulness of that decision in the light of the agreement in question. |24|
In that context, the Court may review the lawfulness of the act of the
Council (including the provisions of the international agreement the
conclusion of which it approves) with regard to the EU and FEU Treaties
and the constitutional principles stemming from those Treaties,
including respect for fundamental rights |25| and international law, |26| in accordance with Article 3(5) TEU.
55. The Court
therefore has 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 |27|
and to declare that agreement incompatible with the EU and FEU Treaties
and with the constitutional principles stemming from those Treaties.
56. In those
situations, the international agreement continues to bind the parties in
international law and it is for the EU institutions to eliminate the
incompatibilities between that agreement and the EU and FEU Treaties and
with the constitutional principles stemming from those Treaties. |28|
If the incompatibilities prove impossible to eliminate, the
institutions must denounce the agreement or withdraw from it, |29|
in accordance with the procedure laid down in Articles 56 and 65
to 68 of the Vienna Convention on the Law of Treaties |30|
and, in this instance, Article 14 of the Fisheries Agreement. In
that sense, an analogy may be drawn with Article 351 TFEU, which
envisages the same situation as regards the Treaties concluded by Member
States before their accession to the Union.
57. Last, it
should be made clear that the principle stated by the International
Court of Justice in the Case of the Monetary Gold removed from Rome in
1943 |31| and referred
to in the fourth question for a preliminary ruling, namely that that
court cannot exercise its jurisdiction to settle a dispute between two
States where, in order to do so, it must examine the conduct of a third
State which is not a party to the proceedings, |32|
is not, as the Council and the Commission maintain, relevant in this
case. That principle, which is to be found in the Statute of the
International Court of Justice, does not exist in the Statute of the
Court of Justice of the European Union and, in any event, could not
exist in EU law since 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.
58. In the
light of those considerations, the questions for a preliminary ruling
seek to establish:
- the
validity of Regulation No 764/2006, in that it approves the
Fisheries Agreement 'providing [EU] fishermen with fishing opportunities
in the waters falling within the sovereignty or jurisdiction of the
Kingdom of Morocco'; |33|
- the
validity of Decision 2013/785, in that it approves the 2013 Protocol
'granting vessels of the Union fishing opportunities in the waters
falling within the sovereignty or jurisdiction of the Kingdom of Morocco
as regards fishing' |34| and fixing the corresponding financial contribution;
- the
validity of Regulation No 1270/2013, in that it allocates among
the Member States the fishing opportunities established under the 2013
Protocol; and
- the
compatibility of the Fisheries Agreement and the 2013 Protocol with the
EU and FEU Treaties and with the constitutional principles stemming
from those Treaties, including, in particular, the protection of
fundamental rights and observance of international law which
Article 3(5) TEU imposes on the European Union's external action.
59. In what follows I shall refer to those acts together as 'the contested acts'.
B. Substance
1. Preliminary observations
60. Both for
the parties to the main proceedings and for the interveners before the
Court, the contested acts are applicable to the territory of Western
Sahara and to the adjacent waters. However, that situation is not clear
from the wording of the Fisheries Agreement and the 2013 Protocol.
Indeed, none of their provisions expressly refers to Western Sahara.
61. It is
therefore appropriate to examine first of all whether the contested acts
are applicable to Western Sahara, because, if they were not, their
validity could not be challenged by reference to the rules to which the
referring court and WSC refer. |35|
62. To my mind,
an interpretation of the Fisheries Agreement and the 2013 Protocol
consistent with the rules on the interpretation of treaties set out in
Article 31 of the Vienna Convention on the Law of Treaties leads to
the conclusion that they are indeed applicable to the territory of
Western Sahara and to the adjacent waters, for the following reasons.
63. According
to Article 31(1) of that convention, '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'. According to Article 31(2), 'the context ... shall
comprise, in addition to the text, including its preamble and annexes[,]
any agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty'. The context
therefore includes the 2006 Protocol, which is no longer in force but
the content of which was, in essence, as regards the scope of the
Fisheries Agreement, the same as that of the 2013 Protocol.
64. Article 31(3)
of that convention also requires that, together with the context, 'any
subsequent agreement between the parties regarding the interpretation of
the treaty or the application of its provisions' is to be taken into
account. Therefore, when interpreting the scope of the Fisheries
Agreement, it is necessary to take the relevant provisions of the 2013
Protocol into account.
65. In this
instance, in accordance with Article 11 thereof, the Fisheries
Agreement is to apply, so far as the Kingdom of Morocco is concerned,
'to the territory of Morocco and to the waters under Moroccan
jurisdiction'. Article 2(a) of that agreement defines the 'Moroccan
fishing zone' in which the fishing activities provided for in that
agreement take place as 'the waters falling within the sovereignty or
jurisdiction of the Kingdom of Morocco'. |36|
66. Those terms
are specified in Appendices 2 and 4 to the Annex to the 2013 Protocol.
At the Court's request, the Commission produced six charts showing the
extent of the fishing zones in accordance with the specifications set
out in those appendices:
67. As is
apparent from those charts, fishing zone No 3 (cat. 3: small-scale
fishing/south) extends south of parallel 30º40'00"N and beyond three
nautical miles; fishing zone No 4 (cat. 4: demersal fishing)
extends south of parallel 29ºN and beyond the 200 meters isobath for
trawlers and beyond 12 nautical miles for longliners; fishing zone
No 5 (cat. 5: tuna fishing) covers all of Morocco's Atlantic zone
beyond 3 nautical miles, apart from a protected area east of a line from
33º30'N/7º35'W to 35º48'N/6º20'W; and fishing zone No 6 (cat. 6:
industrial pelagic fishing) extends south of parallel 29ºN and beyond 15
nautical miles for freezer trawlers and beyond 8 nautical miles for RSW
trawlers. |37|
68. As regards
the latter fishing zone, it is apparent from the minutes of the third
Joint Committee of the Fisheries Agreement, which met in Brussels on 17
and 18 March 2008, that the Union and the Kingdom of Morocco agreed
that the activity in that zone could operate only south of parallel
26º07'N. In fact, Chapter III of the Annex to the 2013 Protocol and
Appendix 4 to that annex allow the Kingdom of Morocco to alter those
geographical coordinates unilaterally provided that any change is
notified to the Commission one month in advance.
69. The
southern edge of those fishing zones is not specified, either in the
Fisheries Agreement or in the 2013 Protocol. |38| Since the border between Western Sahara and the Kingdom of Morocco is at parallel 27º42'N (Pointe Stafford), |39|
only fishing zone No 6, by subsequent agreement between the Union
and the Kingdom of Morocco, explicitly covers the waters adjacent to
Western Sahara. However, it is apparent from the charts produced by the
Commission that fishing zones Nos 3 to 5 go as far as the maritime
border between the Islamic Republic of Mauritania and Western Sahara,
thus covering the waters adjacent to Western Sahara.
70. Furthermore,
the quantities of catch per fishing zone stated by the Commission at
the hearing confirm that the Fisheries Agreement and the 2013 Protocol
apply almost exclusively to the waters adjacent to Western
Sahara. |40| According
to the Commission's figures, catches in fishing zone No 6 alone
represent around 91.5% of total catches taken within the framework of
the Fisheries Agreement and the 2013 Protocol. That clearly shows that
the application of the Fisheries Agreement and the 2013 Protocol to the
waters adjacent to Western Sahara is precisely what the parties
envisaged from the outset.
71. As regards
the application of the Fisheries Agreement and the 2013 Protocol on
land, Article 3(1)(a)(ii) of the 2013 Protocol provides that a part
of the financial contribution paid by the Union to the Kingdom of
Morocco and equivalent to EUR 14 million is to be paid as support
for the fisheries sector in the Kingdom of Morocco, which, according to
the Council and the Commission, includes investments in infrastructure
on the territory of Western Sahara. In addition, Chapter X of the Annex
to the 2013 Protocol provides that a part of the catches must be landed
in Moroccan ports, which, according to the Council and the Commission,
includes the ports of Western Sahara. Last, the Fisheries Agreement and
the 2013 Protocol should, according to the Council and the Commission,
benefit the people of Western Sahara, which in itself constitutes an
application on land of that agreement and that protocol.
72. In the
second place, the assertion that the Fisheries Agreement is applicable
to Western Sahara and to the adjacent waters is supported by its
genesis. As the Commission observes, the origin of the Fisheries
Agreement lies in the fisheries agreements concluded with the Kingdom of
Morocco by the Kingdom of Spain before the latter acceded to the
Union, |41| which covered the waters adjacent to Western Sahara as waters under Moroccan jurisdiction. |42|
I would also observe that the fisheries agreements concluded between
the EU and the Kingdom of Morocco after 1988 have already given rise to a
number of cases relating to fishing in the waters adjacent to Western
Sahara. |43| In that
sense, I consider that, like their predecessors, the Fisheries Agreement
and the 2013 Protocol merely reprise and pursue the fishing activities
of the Kingdom of Spain that already existed in the waters adjacent to
Western Sahara before that Member State acceded to the European Union.
73. In the
third and last place, Article 31(4) of that convention gives
fundamental importance to the intentions of the parties when it states
that 'a special meaning shall be given to a term if it is established
that the parties so intended'. To my mind, it was the intention of the
European Union and the Kingdom of Morocco that the Fisheries Agreement
should apply to Western Sahara and to the adjacent waters as waters
under Moroccan sovereignty or jurisdiction. In 1976, the Kingdom of
Morocco annexed the part of Western Sahara north of a straight line from
the point at which the Atlantic coast intersects parallel 24ºN to the
point at which parallel 23ºN intersects meridian 13ºW, |44|
in accordance with the Convention on the line of the State border
established between the Islamic Republic of Mauritania and the Kingdom
of Morocco, concluded in Rabat on 14 April 1976. |45|
The annexation of Western Sahara by the Kingdom of Morocco was
supplemented in 1979 when the southern part of Western Sahara |46|
which that convention had granted to the Islamic Republic of
Mauritania, was joined to the Kingdom of Morocco. The Kingdom of Morocco
thus considers that Western Sahara comes under its sovereignty and
that, consequently, the waters adjacent to Western Sahara are covered by
the scope of the Fisheries Agreement and the 2013 Protocol.
74. As regards
the European Union, it is clear from the declarations made by a number
of Member States within the Council on the occasion of the approval of
the 2013 Protocol that both it and the Fisheries Agreement are
applicable to Western Sahara. |47|
It was for that reason, moreover, that, as the referring court and the
Commission explain, the European Parliament had initially blocked the
renegotiation of the protocol establishing the fishing opportunities and
the financial contribution provided for in the Fisheries Agreement. It
was also for that reason that the Kingdom of Denmark and the Kingdom of
Sweden voted against the approval of the conclusion of that protocol,
that the Kingdom of the Netherlands, |48|
the Republic of Finland and the United Kingdom abstained and that the
Federal Republic of Germany, Ireland and the Republic of Austria
expressed reservations. |49|
75. In that
context, contrary to the Association Agreement at issue in the judgment
of 21 December 2016, Council v Front Polisario
(C-104/16 P, EU:C:2016:973), the parties' intention seems to me to
be manifestly established: the Fisheries Agreement and the 2013 Protocol
are applicable to Western Sahara and to the waters adjacent thereto.
The Court must therefore examine whether that intention, implemented by
the contested acts, affects their legality under Article 3(5) TEU
and the rules of international law on which WSC relies.
2. The possibility of relying on the rules of international law in order to challenge the validity of the contested acts
(a) General principles
76. WSC's
arguments seek, in essence, to challenge the contested acts from two
aspects. In the first place, WSC maintains that the European Union
cannot lawfully conclude with the Kingdom of Morocco agreements
applicable to the territory of Western Sahara and the adjacent waters.
In the second place, even on the assumption that the European Union
could lawfully conclude such agreements, WSC maintains that the
contested acts are, as regards their content, invalid in the light of
Article 3(5) TEU and international law. For the purposes of its
argument, WSC relies on a number of rules of international law,
including, in particular, the right of peoples to self-determination,
Article 73 of the Charter of the United Nations, the principle of
permanent sovereignty over natural resources and international
humanitarian law in so far as those rules govern the conclusion of
international agreements applicable to occupied territories and the
exploitation of their natural resources. At the hearing, WSC made clear
that it was not challenging the validity of the contested acts in the
light of international law of the sea.
77. In that
context, on the basis of the principles stated in the judgment of
21 December 2011, Air Transport Association of America and Others
(C-366/10, EU:C:2011:864), the Secretary of State, Comader, the
Spanish, French and Portuguese Governments, the Council and the
Commission contend that WSC cannot rely on those rules of international
law.
78. It should
be borne in mind that, according to paragraphs 51 to 55 of the
judgment of 21 December 2011, Air Transport Association of America and Others
(C-366/10, EU:C:2011:864), the ability to rely on the rules of
international treaty law is 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.
79. In the
words of paragraphs 101 to 103 and 107 of the judgment of
21 December 2011, Air Transport Association of America and Others
(C-366/10, EU:C:2011:864), the possibility of relying on the rules of
customary international law is subject to the following conditions:
those rules must be capable of calling in question the competence of the
European Union to adopt the contested act and the act must be liable to
affect rights which the individual derives from EU law or to create
obligations under EU law in his regard.
80. To my mind,
if individuals must satisfy certain conditions in order to be able to
plead the rules of international law in the context of judicial review
of acts of the Union, the principles set out in that judgment are not
automatically capable of being transposed to the present case. In
effect, those principles relate to judicial review of unilateral acts of
purely internal secondary law (regulations, directives, etc.), |50| whereas, as the Commission observes, |51|
the present case raises the separate issue of the validity of an
international agreement concluded by the Union by means of the act
approving its conclusion (treaty secondary law). |52|
81. In that
regard, it should be borne in mind that the capacity of member of the
United Nations Organisation ('the United Nations') is restricted to
States. |53| Not being a
member of the United Nations, the European Union is not a party to the
Statute of the International Court of Justice, which members of the
United Nations are pursuant to Article 93 of the United Nations
Charter. In addition, Article 34 of the Statute of the
International Court of Justice states that only States may be parties in
cases before it.
82. It follows
that review of the external action of the European Union does not fall
within the jurisdiction of an international court or even of the
International Court of Justice. Consequently, even if its action
infringed a peremptory norm of international law within the meaning of
Article 53 of the Vienna Convention on the Law of Treaties or the
obligations 'erga omnes' of customary international law, |54| no international court would have jurisdiction to adjudicate on such an infringement.
83. However,
certain international agreements allow the EU to 'submit to the
decisions of a court which is created or designated by such agreements
as regards the interpretation and application of their provisions', an
option recognised by the Court's case-law. |55|
84. That does
not apply to the Fisheries Agreement, Article 13 of which, entitled
'Settlement of disputes', provides that 'the contracting parties shall
consult each other on any dispute concerning the interpretation or
application of this Agreement'. Since no independent and impartial
court, with jurisdiction to resolve any disputes arising under the
Fisheries Agreement, has been created, the settlement of such disputes
depends on the goodwill of the parties, and each of them can therefore
easily block such settlement. |56|
85. If the
Court of Justice is therefore, by default, the only court with
jurisdiction to review the external action of the Union and to ascertain
that that action contributes to 'the strict observance ... of international law [and] respect for the principles of the United Nations Charter', |57|
it is scarcely surprising that it has held that 'exercise of the powers
delegated to the [EU] institutions in international matters cannot
escape judicial review ... of [validity]'. |58|
86. In that
context, although individuals must satisfy certain conditions in order
to be able to rely on international law in order to challenge the
compatibility of an international agreement concluded by the European
Union with Article 3(5) TEU, those conditions cannot be such as to
render effective judicial review of the external action of the Union
impossible in practice.
87. However,
that would in my view be the case if the principles set out in the
situation referred to in the judgment of 21 December 2011, Air Transport Association of America and Others (C-366/10, EU:C:2011:864), were transposed as such to review of the validity of the contested acts.
88. In fact,
some of the rules of international law relied on in the present case are
both rules of customary law and rules of treaty law, since they have
been codified in a number of international treaties and conventions,
whereas other rules, such as the right to self-determination, are part
of general international law |59|
and, on that basis, do not come exclusively under international treaty
or customary law, the possibility of relying on which was addressed by
the Court in its judgment of 21 December 2011, Air Transport Association of America and Others (C-366/10, EU:C:2011:864).
89. Furthermore,
while it was with the objective of not automatically precluding the
possibility of relying on the rules of customary international law that
the Court imposed different conditions applicable to such rules from
those applicable to international treaty law, it would be contrary to
that same objective if, as the Secretary of State, the Spanish, French
and Portuguese Governments and the Council and the Commission propose,
the possibility of relying on the rules of general international law
were made subject to the conditions governing the possibility of relying
on the rules of customary international law, where they satisfy the
conditions that determine the possibility of relying on the rules of
international treaty law.
90. Such a
solution would automatically preclude the possibility for individuals to
rely on rules, however essential, of international law, such as the
peremptory norms of general international law or the obligations erga omnes of international law, for the following reasons.
91. First of
all, according to the first of the conditions governing the possibility
of relying on the rules of customary international law laid down by the
Court where the contested act is an act of purely internal unilateral
secondary law, the rules relied on must be capable of calling in
question the competence of the Union to adopt that act. I recall that in
the case that gave rise to the judgment of 21 December 2011, Air Transport Association of America and Others
(C-366/10, EU:C:2011:864), and in the cases that gave rise to the
judgments cited in paragraph 107 of that judgment, the competence
of the Union to adopt the contested act, which was claimed to produce
extraterritorial effects, was at issue.
92. In the present case, no one is challenging the competence |60|
of the Union to conclude the Fisheries Agreement and the 2013 Protocol
or to adopt Regulation No 764/2006, Decision 2013/785 and
Regulation No 1270/2013. On the contrary, WSC is challenging the
compatibility of the Fisheries Agreement and of the 2013 Protocol with
primary EU law and the internal lawfulness of Regulation
No 764/2006, Decision 2013/785 and Regulation No 1270/2013. It
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.
93. Next, the
application of the second condition governing the possibility of relying
on the rules of customary international law in the context of a case
such as that at issue is even more problematic. According to that
condition, the contested act must be liable to affect rights which the
individual derives from EU law or to create obligations under EU law
with regard to him. |61|
94. In the
present case, the contested acts confer rights and obligations only on
the European Union and the Kingdom of Morocco. I see no provision in
those acts that would create rights or obligations with regard to
individuals, other than, potentially (but I doubt it), the EU shipowners
whose vessels have a fishing licence issued under the Fisheries
Agreement. Therefore, even on the assumption that a category of
individuals might initiate a judicial review of the contested acts on
the basis of that condition, such a category would consist exclusively
of those who benefit from the Fisheries Agreement and therefore have no
interest in challenging it before the Court.
95. Last, why
should judicial review be limited 'to the question whether, in adopting
the act in question, the institutions of the European Union made
manifest errors of assessment concerning the conditions for applying
those principles', |62| when those principles have 'the same degree of precision as a provision of an international agreement' |63| because they have been codified?
96. To conclude
on this point, I consider that in the context of the judicial review of
the international agreements concluded by the European Union and of the
acts of the European Union approving or implementing such agreements,
the possibility of relying on the rules of international law must indeed
be subject to certain conditions, but independently of whether they
strictly belong to one or more sources of international law according to
the classification set out in Article 38(1) of the Statute of the
International Court of Justice. Those conditions are the ones set out in
paragraphs 53 to 55 of the judgment of 21 December 2011, Air Transport Association of America and Others
(C-366/10, EU:C:2011:864), namely that the Union must be bound by the
rule relied on, the content of which must be unconditional and
sufficiently precise and, last, the nature and the broad logic of which
do not preclude judicial review of the contested act.
97. It is by
reference to those principles that I shall examine the possibility of
relying on the rules of international law relied on by WSC that are
relevant in the present case.
(b) The
possibility of relying on the rules of international law applicable to
the conclusion of international agreements relating to the exploitation
of the natural resources in Western Sahara
98. By the
contested acts, the European Union concluded with the Kingdom of Morocco
and implemented an international agreement which provides for the
exploitation by the Union of the fish resources of Western Sahara. In
that context, I shall examine the possibility of relying on the rules of
international law that might call in question both the conclusion with
the Kingdom of Morocco of an international agreement applicable to
Western Sahara and the adjacent waters and the exploitation of its
natural resources. In doing so, I shall take into account the facts that
the Kingdom of Morocco regards itself as having sovereignty over
Western Sahara; that from the viewpoint of the EU institutions, the
Kingdom of Morocco is the de facto administering power of Western
Sahara; and that in the view of the referring court and WSC, the Kingdom
of Morocco is the occupying power of Western Sahara.
(1) The right to self-determination
(i) The right to self-determination forms part of 'human rights'
99. First of
all, I consider that the right to self-determination is not subject to
the conditions governing the possibility of relying on the rules of
international law because it forms part of human rights.
100. As the Court held in paragraphs 284 and 285 of the judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission
(C-402/05 P and C-415/05 P, EU:C:2008:461), respect for human
rights is a condition of the lawfulness of EU acts and measures
incompatible with respect for human rights are not acceptable in the EU
legal order. Thus, the obligations imposed by an international agreement
cannot have the effect of prejudicing the constitutional principles of
the EU and FEU Treaties, such as Article 3(5) TEU and
Article 21 TEU, which provide that the Union's external action is
to respect human rights. It is therefore incumbent on the Court to
ensure that human rights are respected in the context of the full system
of remedies established by the EU and FEU Treaties.
101. According to the Court's settled
case-law, 'fundamental rights form an integral part of the general
principles of law whose observance the Court ensures'. For that purpose,
the Court draws inspiration from the constitutional traditions common
to the Member States and from the guidelines supplied by
international instruments for the protection of human rights on which
the Member States have collaborated or to which they are signatories'. |64|
102. All the Member States (and the Kingdom
of Morocco) are parties to the International Covenant on Economic,
Social and Cultural Rights (ICESCR) |65| and the International Covenant on Civil and Political Rights (ICCPR), |66| signed in New York on 16 December 1966, of which the common Article 1 provides as follows:
'1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely
dispose of their natural wealth and resources without prejudice to any
obligations arising out of international economic cooperation, based
upon the principle of mutual benefit, and international law. In no case
may a people be deprived of its own means of subsistence.
3. The
States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realisation of the right of
self-determination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations'. |67|
103. Furthermore, Title VIII of the Helsinki
Final Act of 1975, entitled 'Equal rights and self-determination of
peoples', to which Article 21(2)(c) TEU refers and to which all
Member States are parties, enshrines the right to self-determination in
terms almost identical to those of Article 1 common to the ICESCR
and the ICCPR. That title provides as follows:
'The participating States will respect the
equal rights of peoples and their right to self-determination, acting at
all times in conformity with the purposes and principles of the Charter
of the United Nations and with the relevant norms of international law,
including those relating to territorial integrity of States.
By virtue of the principle of equal rights and
self-determination of peoples, all peoples always have the right, in
full freedom, to determine, when and as they wish, their internal and
external political status, without external interference, and to pursue
as they wish their political, economic, social and cultural development.
The participating States reaffirm the universal
significance of respect for and effective exercise of equal rights and
self-determination of peoples for the development of friendly relations
among themselves as among all States; they also recall the importance of
the elimination of any form of violation of this principle.'
104. The right to self-determination is
therefore a human right, which has been recognised as such by several
international authorities and instruments and also in academic
literature.|68| According to
the International Court of Justice, the beneficiaries of that right are
the peoples of non-self-governing territories and people subject to
alien subjugation,|69| domination and exploitation.|70|
(ii) The right to
self-determination as a principle of general international law, of
international treaty law and as an obligation erga omnes
105. In any event, as a rule of general international law |71| and an obligation erga omnes |72| which is codified in a number of international treaty instruments,|73|
the right to self-determination satisfies the criteria governing the
possibility of relying on it set out in point 96 of this Opinion,
namely that it is binding on the Union, that its content is
unconditional and sufficiently precise and that its nature and its broad
logic do not preclude judicial review of the contested acts.
- The European Union is bound by the right to self-determination
106. As the Court held in its judgment of 21 December 2016, Council v Front Polisario (C-104/16 P, EU:C:2016:973), the Union is bound by the right to self-determination, which is a legally enforceable right erga omnes and one of the essential principles of international law. |74|
On that basis, '[it] forms part of the rules of international law
applicable to relations between the European Union and the Kingdom of
Morocco'. |75|
107. The right to self-determination is enshrined in Article 1(2) of the United Nations Charter. |76|
Article 3(5) TEU, Article 21(1) TEU, Article 21(2)(b)
and (c) TEU and Articles 23 TEU and 205 TFEU require the European
Union to respect the principles of the United Nations Charter.
Declaration 13 concerning the common foreign and security policy,
annexed to the Final Act of the Intergovernmental Conference which
adopted the Treaty of Lisbon, signed in Lisbon on 13 December 2007,
states that 'the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations'. |77|
108. In addition, the right to
self-determination is among the principles of the Helsinki Final Act
referred to in Article 21(2)(c) TEU. |78|
109. Last, as is apparent from
Article 1 of the 2013 Protocol, its implementation is subject to
respect for democratic principles and fundamental human rights, which
includes respect for the right of peoples to self-determination.
- The
right to self-determination is a rule of international law which, from
the viewpoint of its content, is unconditional and sufficiently precise
110. As the Court held in paragraph 55 of the judgment of 21 December 2011, Air Transport Association of America and Others
(C-366/10, EU:C:2011:864), '[this] condition ... is satisfied where the
provision relied on contains a clear and precise obligation which is not
subject, in its implementation or effects, to the adoption of any
subsequent measure'.
111. As shown in paragraphs 90, 92 and 93 of the judgment of 21 December 2016, Council v Front Polisario
(C-104/16 P, EU:C:2016:973), where the Court applied that right to
Western Sahara and its people without expressing any doubt as regards
its content and/or its scope, the right to self-determination satisfies
that condition.
112. The fact that the International Court
of Justice held that the construction of a wall by Israel in the
territory of Transjordan constituted a violation of the right of the
Palestinian people to self-determination because it was tantamount to a
de facto annexation |79| shows that the right to self-determination is a right the content of which is sufficiently clear and precise to be applied.
113. Indeed, its content is sufficiently detailed in a number of instruments.
114. In that regard, the International Court
of Justice has established, in Article 1(2) of the United Nations
Charter, the existence of a 'right to independence for the peoples of
non-self-governing territories and peoples subject to alien subjugation,
domination and exploitation'. |80|
115. The content of that right is stated in detail in Article 1 common to the ICESCR and the ICCPR |81|
and the details of its implementation are set out in a number of United
Nations General Assembly resolutions, including Resolutions 1514 (XV),
1541 (XV) and 2625 (XXV), to which the International Court of Justice
has often referred. |82|
116. In that regard, Resolution 1514 (XV) states the following:
'1. The
subjection of peoples to alien subjugation, domination and exploitation
constitutes a denial of fundamental human rights, is contrary to the
Charter of the United Nations and is an impediment to the promotion of
world peace and cooperation.
2. All
peoples have the right to self-determination; by virtue of that right
they freely determine their political status and freely pursue their
economic, social and cultural development.
...
4. All armed
action or repressive measures of all kinds directed against dependent
peoples shall cease in order to enable them to exercise peacefully and
freely their right to complete independence, and the integrity of their
national territory shall be respected.
...'
117. Resolution 1541 (XV) establishes the
Principles which should guide the administering powers in the exercise
of their obligations under Article 73 of the United Nations
Charter. It should be noted that Principle VI provides that the right to
self-determination is considered to have been exercised when the
non-autonomous territory becomes a sovereign independent State or when
it associates freely with an independent State or when it is integrated
with an independent State.
118. As regards the integration of an
independent State, Principle IX(b) states that 'the integration should
be the result of the freely expressed wishes of the territory's peoples
acting with full knowledge of the change in their status, their wishes
having been expressed through informed and democratic processes,
impartially conducted and based on universal adult suffrage. The [United
Nations] could, when it deems it necessary, supervise these processes'.
119. Last, Resolution 2625 (XXV) contains
the 'Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of
the United Nations'. Under the heading 'The principle of equal rights
and self-determination of peoples', that resolution imposes on all
States 'the duty to promote, through joint and separate action,
realisation of the principle of equal rights and self-determination of
peoples, in accordance with the provisions of the Charter [of the United
Nations]'.
120. It also imposes on States 'the duty to
refrain from any forcible action which deprives peoples referred to
above in the elaboration of the present principle of their right to
self-determination and freedom and independence'.
121. As regards, more particularly, the
non-self-governing territories, such as Western Sahara, that resolution
states such a territory has 'a status separate and distinct from the
territory of the State administering it; and such separate and distinct
status under the [United Nations] Charter shall exist until the people
of the ... Non-Self-Governing Territory have exercised their right of
self-determination in accordance with the Charter, and particularly its
purposes and principles'. |83|
122. Last, in the general part, Resolution
2625 (XXV) declares that 'the principles of the Charter which are
embodied in this Declaration constitute basic principles of
international law, and [the General Assembly] consequently appeals to
all States to be guided by these principles in their international
conduct and to develop their mutual relations on the basis of the strict
observance of these principles'.
123. It follows from the foregoing that the
right to self-determination is not subjected, in its implementation or
in its effects, to the adoption of any subsequent measure.
124. In the present case, as the
International Court of Justice and this Court have held, the people of
Western Sahara enjoy the right to self-determination. |84|
- The nature and the broad logic of the right to self-determination do not preclude judicial review of the contested acts
125. In paragraph 89 of the judgment of 21 December 2016, Council v Front Polisario
(C-104/16 P, EU:C:2016:973), the Court held that 'the General
Court was obliged to take [the right to self-determination] into
account' in the context of the action for annulment of the Association
Agreement brought by Front Polisario. It follows that the nature and the
broad logic of that right do not preclude judicial review of the acts
of the Union.
126. In fact, Article 103 of the United
Nations Charter provides that 'in the event of a conflict between the
obligations of the Members of the United Nations under the present
Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail'.
127. In addition, according to the International Court of Justice, 'the right of peoples to self-determination has an erga omnes character'. |85|
That means that 'such obligations are by their very nature "the concern
of all States" and, "in view of the importance of the rights involved,
all States can be held to have a legal interest in their
protection"'. |86| In
that sense, the International Court of Justice has held that 'all States
are under an obligation not to recognise the illegal situation
resulting from the [breach of an obligation erga omnes]. They are
also under an obligation not to render aid or assistance in maintaining
the situation created by such [breach]. It is also for all States,
while respecting the United Nations Charter and international law, to
see to it that any impediment, resulting from the [breach], to the
exercise by the ... people [concerned, in this instance the Palestinian
people] of its right to self-determination is brought to an end'. |87|
128. Last, the right to self-determination
is frequently cited as a peremptory norm of international law,
infringement of which may render an international agreement invalid in
accordance with Article 53 of the Vienna Convention on the Law of
Treaties. |88| It should
be emphasised that, during the advisory opinion proceedings before the
International Court of Justice in the Western Sahara case, the Kingdom
of Spain recognised that the right to self-determination constituted in
itself a peremptory norm of international law, |89|
whereas the Kingdom of Morocco recognised that the principle of
decolonisation, of which self-determination is one form, is a peremptory
norm. |90|
129. It follows that, far from precluding
judicial review, the nature and the broad logic of the right to
self-determination require the Court to determine whether, by the
contested acts, the Union respected that right, did not recognise an
illegal situation resulting from a breach of that right and did not
render aid or assistance in maintaining such a situation. |91|
(2) The principle of permanent sovereignty over natural resources
130. The principle of permanent sovereignty
over natural resources guarantees the sovereign right of each State and
each people to the free disposition of the natural wealth and resources
of its territory in the interest of national development and of the
well-being of its people. |92| It is a principle of customary international law |93| which as such is binding on the Union.
131. As the Under-Secretary-General for
Legal Affairs of the United Nations, the Legal Counsel, Hans Corell,
observed in his letter of 29 January 2002 to the President of the
United Nations Security Council, '[the] exact legal scope and
implications [of the principle of permanent sovereignty over natural
resources] are still debatable'. |94|
132. In fact, his legal opinion is testimony
to that difficulty, since he uses different expressions to characterise
what the exploitation of natural resources for the benefit of the
people of the non-self-governing territory is. He speaks of exploitation
which is not carried out 'in disregard of the needs, interests and
benefits of the people [of the non-self-governing territory]' |95|
or of exploitation 'on ... behalf [of the peoples of the
non-self-governing territories] or in consultation with their
representatives' |96|
and concludes that exploitation cannot proceed 'in disregard of the
interests and wishes of the people of [the non-self-governing
territory]'. |97|
133. Thus, in spite of the variation in
terminology, it is certain that, at a minimum, the exploitation of
natural resources must be carried out for the benefit of the people of
the non-self-governing territory, which is sufficient to render that
criterion of the principle of permanent sovereignty over natural
resources sufficiently clear and precise.
134. It is also capable of forming the basis
for a judicial review of the contested acts. In fact, the Parliament
had initially blocked the adoption of the protocol eventually concluded
in 2013, as it considered that the protocol did not provide sufficient
safeguards to ensure that the fishery exploitation of the natural
resources of Western Sahara by European Union vessels would be done for
the benefit of the people of that territory. In addition, the Council
and the Commission accept that the criterion of benefit for the people
of Western Sahara is a condition of the lawfulness of the agreements
concluded between the European Union and the Kingdom of Morocco which
relate to Western Sahara.
(3) The rules of
international humanitarian law applicable to the conclusion of
international agreements concerning the exploitation of the natural
resources of the occupied territory
135. In the referring court's view, and in
the submissions of WSC and of HMRC and the Secretary of State, Morocco's
presence in Western Sahara constitutes an occupation. |98|
136. In that regard, I would observe that
the question whether the Kingdom of Morocco is or is not the occupying
power of Western Sahara and whether it concluded the Fisheries Agreement
and the 2013 Protocol in that capacity is a question of interpretation
of international law to which the conditions governing the possibility
of relying on international law in EU law do not apply.
137. However, if the Kingdom of Morocco is
the occupying power of Western Sahara (a question to which I shall
return below |99|), it
must be possible to rely on the rules of international humanitarian law,
codified in the regulations annexed to the Hague Convention of
18 October 1907 Respecting the Laws and Customs of War on Land
('the 1907 Hague Regulations') and the Geneva Convention of
12 August 1949 Relative to the Protection of Civilian Persons in
Time of War ('the Fourth Geneva Convention'), which concern the
conclusion of international agreements applicable to the occupied
territory (Article 43 of the 1907 Hague Regulations and the second
paragraph of Article 64 of the Fourth Geneva Convention) and the
exploitation of the natural resources of the occupied territory
(Article 55 of the 1907 Hague Regulations).
138. Indeed, those provisions thus satisfy
the criteria governing the possibility of relying on international law
set out in point 96 of this Opinion.
139. In the first place, the provisions of
the 1907 Hague Regulations and the Fourth Geneva Convention are
intransgressible principles of customary international law which can be
relied on erga omnes |100| and as such are binding on the European Union.
140. In the second place, their content is
sufficiently precise and unconditional in that the obligations which
they impose on the occupying powers are not subject, in their
implementation or their effects, to the adoption of any subsequent
measure.
141. In the third and last place, their
nature and their broad logic as intransgressible rules do not preclude
judicial review of the contested acts, and in particular of Regulation
No 764/2006, Decision 2013/785 and Regulation No 1270/2013 in
that they approve and implement an exploitation of the natural resources
of Western Sahara agreed between the European Union and the Kingdom of
Morocco. In fact, the European Union is under an obligation not to
recognise an illegal situation resulting from a breach of those
provisions and not to render aid or assistance in maintaining the
situation created by that breach. |101|
142. Having determined the rules of
international law that may be relied on, I shall now examine the
compatibility of the contested acts with those rules.
3. The
validity of Regulation No 764/2006, Decision 2013/785 and
Regulation No 1270/2013 and the compatibility of the Fisheries
Agreement and the 2013 Protocol with the rules of international law
referred to in Article 3(5) TEU that may be relied on
(a) Respect by
the contested acts of the right of the people of Western Sahara to
self-determination and of the obligation not to recognise an illegal
situation resulting from that right and not to render aid or assistance
in maintaining that situation
143. In its judgment of 21 December 2016, Council v Front Polisario
(C-104/16 P, EU:C:2016:973), the Court held that the Association
Agreement concluded between the European Union and the Kingdom of
Morocco, which, according to its wording, is to apply to 'the territory
of the Kingdom of Morocco', is not applicable to the territory of
Western Sahara since such application would be incompatible with the
right of the people of that territory to self-determination and also
with Articles 29 (territorial application of treaties) and 34
(principle of the relative effect of treaties, according to which
treaties must not harm or profit third parties without their consent) of
the Vienna Convention on the Law of Treaties. |102|
144. According to the Council and the
Commission, the present case must be distinguished from the case that
gave rise to the judgment of 21 December 2016, Council v Front Polisario
(C-104/16 P, EU:C:2016:973), in that, unlike the Association
Agreement, the Fisheries Agreement and the 2013 Protocol are applicable
to Western Sahara. According to their reading of that judgment, the
problem of the Association Agreement was that it was applied to Western
Sahara without being legally applicable there, because such application
would be incompatible with the right of the people of that territory to
self-determination and with Articles 29 (territorial application of
treaties) and 34 (principle of the relative effect of treaties,
according to which treaties must not harm or profit third parties
without their consent) of the Vienna Convention on the Law of Treaties.
It is on the basis of that argument that the solution envisaged by the
Council and the Commission in order to render the application of the
Association Agreement to Western Sahara consistent with the judgment of
21 December 2016, Council v Front Polisario
(C-104/16 P, EU:C:2016:973) would be to extend its scope by
agreement in the form of an exchange of letters between the European
Union and the Kingdom of Morocco so that Western Sahara would be
expressly covered.
145. I am not persuaded by that line of
argument. If the application to Western Sahara of an international
agreement concluded with the Kingdom of Morocco, the territorial scope
of which does not expressly include that territory, would be
incompatible with the right of the people of that territory to
self-determination, then an international agreement which, like the
Fisheries Agreement and the 2013 Protocol, is applicable to the
territory of Western Sahara and the adjacent waters |103| and authorises the exploitation by the European Union |104| of the fishery resources of Western Sahara would a fortiori also be incompatible with that right.
146. A fortiori, that argument seems to me
to be sufficient to establish a breach of the right of the people of
Western Sahara to self-determination. In the interest of completeness, I
would add that the contested acts do not respect the right of the
people of Western Sahara to self-determination in that they do not
correspond to either the free pursuit of its economic development or to the free disposal of its wealth and of its natural resources |105|
and that in any event, even if they did not in themselves breach the
right to self-determination, they would not respect the European Union's
obligation not to recognise an illegal situation resulting from the
breach of the right of the people of Western Sahara to
self-determination and not to render aid or assistance in maintaining
that situation. |106|
(1) The existence
of a free will of the people of Western Sahara to pursue by the
contested acts its economic development and to dispose of its wealth and
of its natural resources
147. The fact that no such will exists seems to be borne out by the following facts, |107| the substance of which was pleaded by WSC before the referring court and set out in its judgment. |108|
148. On 20 December 1966, the United
Nations General Assembly adopted Resolution 2229 (XXI) on the Question
of Ifni and Spanish Sahara, in which it 'reaffirm[ed] the inalienable
right of the peoples of ... Spanish Sahara to self-determination' and
invited the Kingdom of Spain, in its capacity as administering Power, to
determine at the earliest possible date 'the procedures for the holding
of a referendum under [United Nations] auspices with a view to enabling
the indigenous population of the Territory to exercise freely its right
to self-determination'.
149. On 20 August 1974, the Kingdom of
Spain informed the United Nations that it proposed to hold, under United
Nations auspices, a referendum in Western Sahara. |109|
150. In May 1975, in spite of the
difficulties encountered, the United Nations Visiting Mission to Western
Sahara 'was able to conclude, after its stay in the territory, that the
majority of the population within Spanish Sahara was manifestly in
favour of independence'. |110|
151. On 16 October 1975, the
International Court of Justice, following a request by the United
Nations General Assembly in the context of its work relating to the
decolonisation of Western Sahara, delivered an Advisory Opinion
according to which Western Sahara was not a territory belonging to no
one (terra nullius) at the time of colonisation by Spain and also
that although certain material showed the existence, at the time of
Spanish colonisation, of legal ties of allegiance between the Sultan of
Morocco and some of the tribes living in the territory of Western
Sahara, it did not establish any tie of territorial sovereignty between
the territory of Western Sahara and the Kingdom of Morocco. |111|
The Court therefore did not find legal ties of such a nature as might
affect the application of United Nations General Assembly Resolution
1514 (XV) as regards the decolonisation of Western Sahara and, in
particular, the application of the principle of self-determination
through the free and genuine expression of the will of the peoples of
the territory. |112|
152. In a speech delivered on the day of the
publication of the Advisory Opinion, 'the King of Morocco took the view
that "the whole world [had] recognised that [Western] Sahara belonged"
to the Kingdom of Morocco and that it only remained for the Kingdom "to
peacefully occupy that territory"'; he called, to that end, for the
organisation of a march in which 350 000 persons took part, called
'the Green March'. |113|
153. Upon application by the Kingdom of
Spain, the United Nations Security Council requested the United Nations
Secretary-General, K. Waldheim, to report on the results of his
consultations with the parties concerned, including in particular the
Kingdom of Morocco. |114|
154. The Kingdom of Morocco's argument,
described in that report, was that a referendum was unnecessary because
the International Court of Justice had recognised the historic links of
allegiance between the Sultan of Morocco and the tribes traditionally
living in the territory of Western Sahara and that, in any event, 'the
populations of the territory had already de facto exercised their right
to self-determination and had declared themselves in favour of returning
the territory to Morocco', the most recent evidence being 'the oath of
allegiance to the King of Morocco taken on behalf of the Saharawi tribes
by [Mr Khatri Ould Said a Ould El Jomaini], President of the
Yema'a[ |115|]' at a ceremony held on 4 November 1975 at the Palace of Agadir. |116|
155. Following the Kingdom of Spain's
protests against the Green March, the United Nations Security Council
adopted, on 6 November 1975, Resolution 380 (1975) on Western
Sahara, in which it 'deplore[d] the holding of the march' announced and
'call[ed] upon [the Kingdom of] Morocco immediately to withdraw from the
territory of Western Sahara all the participants in [that] march'. The
Kingdom of Morocco complied with that request a few days later.
156. During the crisis caused by the Green
March, the Kingdom of Spain, the Kingdom of Morocco and the Islamic
Republic of Mauritania took part in trilateral negotiations which led,
on 14 November 1975, to the Declaration of Principles on Western
Sahara by Spain, Morocco and Mauritania |117|
('the Madrid Agreement'). In the words of that agreement, 'Spain
[would] proceed forthwith to institute a temporary administration in the
Territory [of Western Sahara], in which Morocco and Mauritania [would]
participate in collaboration with the Yema'a and to which would be
transferred all the responsibilities and powers [which it possessed over
that territory as administering Power]', which was done.
157. The Madrid Agreement also provided that
'the termination of the Spanish presence in the Territory [would] be
completed by 28 February 1976 at the latest' and that 'the views of
the Saharan population, expressed through the Yema'a, [would] be
respected'.
158. It subsequently became apparent that
that agreement was accompanied by a series of agreements between those
three countries, formally called 'acts of conversations', designed to
regulate certain economic aspects of the transfer of the administration
of Western Sahara, including, in particular, fishing rights in the
waters adjacent to that territory. |118|
The existence of those agreements and the fact that they related to
fishing were confirmed by the Minister for Foreign Affairs of the
Kingdom of Spain, Mr Oreja Aguirre, during the parliamentary debate
on the ratification of the 1977 Fisheries Agreement between the Kingdom
of Spain and the Kingdom of Morocco. |119| According to that minister, those agreements amounted to 'guidelines [or] directives'. |120|
159. The existence of an agreement on
fishing rights in the waters adjacent to Western Sahara, and the fact
that its existence was not notified to the United Nations
Secretary-General, are also confirmed by the diplomatic cables of the
Secretary of State of the United States of America. |121|
160. On 28 November 1975, 67 members of
the Yema'a, including its Vice-President, meeting at El Guelta Zemmur
(Western Sahara), unanimously declared that as the Yema'a was not
democratically elected by the people of Western Sahara it could not
decide on its self-determination. They unanimously decided that the
Yema'a should be definitively dissolved. |122|
161. On 10 December 1975, the United
Nations General Assembly passed two resolutions on the Question of
Western Sahara, the content of which is not identical, |123|
because there was no consensus on how the Madrid Agreement was to be
understood. Thus, Resolution 3458 A (XXX) makes no reference to that
agreement and refers to the Kingdom of Spain 'as the administering
Power' of Western Sahara, |124| whereas Resolution 3458 B (XXX) 'takes note' |125|
of that agreement and does not refer to an administering Power but to
the 'parties to the Madrid Agreement of 14 November 1975' |126| and to 'the interim administration'. |127|
162. It should be noted, however, that among the 144 State participants in the 2435th
plenary session of the General Assembly, 88 voted for Resolution 3458 A
(XXX), none against, 41 abstained and 15 did not vote. The present
Member States of the European Union voted for that resolution, with the
exception of the Portuguese Republic and the Kingdom of Spain, which
abstained, and the Republic of Malta, which did not vote. The Kingdom of
Morocco also did not vote.
163. More heavily contested, Resolution 3458
B (XXX) was approved by only 56 States, whereas 42 States voted
against, 34 abstained and 12 did not vote. Only 11 of the present Member
States of the European Union voted for that resolution, |128| 10 voted against, |129| 6 abstained |130| and one did not vote. |131| The Kingdom of Morocco voted for.
164. In spite of their discrepancies, both
resolutions 'reaffirm the inalienable right of the people of [Western]
Sahara to self-determination', |132|
in accordance with United Nations General Assembly Resolution 1514
(XV), and agree that that right must be exercised freely. |133|
165. In addition, Resolution 3458 A (XXX)
provides that the right to self-determination must be exercised 'under
United Nations supervision' and 'requests the Secretary-General, in
consultation with the Government of Spain, as the administering Power, ...
to make the necessary arrangements for the supervision of the act of
self-determination'. |134|
166. Likewise, Resolution 3458 B (XXX)
provides for the exercise by the people of Western Sahara of its right
to self-determination 'through free consultations organised with the
assistance of a representative of the [United Nations] appointed by the
Secretary-General'. |135|
167. At the end of 1975, the Kingdom of
Spain began to withdraw its administration from Western Sahara. While
the Spanish troops were withdrawing, the Moroccan and Mauritanian forces
were entering the territory of Western Sahara. In some places there was
armed confrontation between their forces and the forces of the Front
populaire pour la libération de la saguia-el-hamra et du rio de oro
(Front Polisario). |136|
168. At a press conference in February 1976,
Mr Olof Rydbeck, Swedish Ambassador to the United Nations and
Special Envoy of the United Nations Secretary-General for Western
Sahara, stated that 'the military situation [in Western Sahara] as it
[stood] [made] a meaningful consultation of the Saharans very difficult
if not impossible'. |137|
169. By its memorandum of 25 February
1976 to the United Nations Secretary-General, the Kingdom of Spain
informed the Secretary-General that it had decided to put an end to its
presence in Western Sahara on the following day (26 February 1976)
and that a meeting of the Yema'a had been convoked for that day during
which the Spanish Governor, acting in his capacity as a member of the
interim administration, would inform the Yema'a of that decision. |138|
170. On 26 February 1976, the Kingdom
of Spain definitively terminated its presence on the territory of
Western Sahara and by its letter of the same date to the United Nations
Secretary-General declared that it was 'absolved of all international
responsibility for the administration [of Western Sahara] by ceasing to
participate in the interim administration put in place there' |139|
and asserted that 'the decolonisation of Western Sahara will be
achieved when the Saharawi population will have been able to make its
views known in a proper manner'. |140|
171. On the same day, in spite of the
dissolution decided on by 67 of its members, the Yema'a approved 'the
reintegration [of Western Sahara] in Morocco and Mauritania' and 'thus
expressed the unanimous opinion of the Saharawi populations and all the
tribes of which it is the emanation and the authentic and legitimate
representative'. |141|
From the Kingdom of Morocco's viewpoint, that decision gives concrete
form to the provision of the Madrid Agreement that 'the opinion of the
Saharawi population, expressed through the Yema'a, will be respected'.
172. As regards that meeting of the Yema'a,
neither the Kingdom of Spain nor the United Nations recognised it as the
exercise of the right of the people of Western Sahara to
self-determination, in accordance with United Nations General Assembly
Resolutions 3458 A and B (XXX). |142|
173. According to the memorandum dated
25 February 1975 which the Kingdom of Spain sent to the United
Nations Secretary-General, 'that sitting [will] not take the place of
the consultation with the population as provided for in the Madrid
Agreements of 14 November 1975 and in General Assembly Resolution
3458 B (XXX), unless the necessary conditions are fulfilled, including,
in particular, the presence of a representative of [the United Nations]
appointed by [the Secretary-General] in accordance with paragraph 4
of the abovementioned resolution'. |143|
174. In his reply to the Kingdom of Spain's
memorandum of 25 February 1975, the United Nations
Secretary-General referred to paragraphs 7 and 8 of Resolution 3458
A (XXX) and to paragraph 4 of Resolution 3458 B (XXX) and
concluded as follows:
'It is evident from the paragraphs cited above
that neither the Government of Spain, as the administering Power, nor
the interim administration, of which Spain is a member, has taken the
necessary steps to ensure the exercise of the right to
self-determination by the populations of Western Sahara. Accordingly,
even if time had permitted and the necessary clarifications had been
furnished regarding the meeting of the Yema'a of which you informed me
yesterday your Government was not aware, the presence at that meeting of
a representative of the United Nations appointed by me would not, by
itself, constitute fulfilment of the General Assembly resolutions
referred to above'. |144|
175. On 14 April 1976, the Kingdom of
Morocco concluded with the Islamic Republic of Mauritania a treaty on
the partition of the territory of Western Sahara |145| and formally annexed the provinces attributed to it by that treaty. |146|
176. In the meantime, an armed conflict had
broken out in that region between the Kingdom of Morocco, the Islamic
Republic of Mauritania and the Front Polisario.
177. In May 1979, the Islamic Republic of
Mauritania informed the United Nations Secretary-General that it was
prepared to apply the provisions of United Nations General Assembly
Resolutions 3458 A (XXX) and 3458 B (XXX) and to study the ways and
means of arriving at the exercise of the right to self-determination in
Western Sahara. |147|
However, 'since July 1978, the Moroccan Government [had] repeatedly
stated that it would not give up any of "its recovered Saharan
provinces", nor would it agree to a mini-State under the Front
[Polisario] in Mauritania's sector of Western Sahara'. |148|
178. On 10 August 1979, the Islamic
Republic of Mauritania concluded a peace agreement with the Front
Polisario, under which it renounced all territorial claims to Western
Sahara. |149| The Kingdom of Morocco immediately took control of the territory evacuated by the Mauritanian forces |150| and proceeded to annex it. |151|
179. On 21 November 1979, the United
Nations General Assembly adopted Resolution 34/37 on the question of
Western Sahara, in which it 'reaffirm[ed] the inalienable right of the
people of Western Sahara to self-determination and independence, in
accordance with the Charter of the United Nations ... and the objectives
of [its] Resolution 1514 (XV)', 'deeply deplore[d] the aggravation of
the situation resulting from the continued occupation of Western Sahara
by Morocco', 'urge[d] Morocco to join in the peace process and to
terminate the occupation of the Territory of Western Sahara' and
'recommend[ed] to that end that the [Front Polisario], the
representative of the people of Western Sahara, should participate fully
in any search for a just, lasting and definitive political solution of
the question of Western Sahara, in accordance with the resolutions and
declarations of the United Nations'. |152|
180. The armed conflict between the Kingdom
of Morocco and the Front Polisario continued until, on 30 August
1988, the parties accepted in principle proposals for settlement put
forward, in particular, by the United Nations Secretary-General and
providing, in particular, for the proclamation of a ceasefire and the
organisation of a referendum on self-determination under United Nations
supervision. |153|
181. Since that period no progress towards
allowing the people of Western Sahara to exercise its right to
self-determination has been recorded. As the United Nations
Secretary-General observed in his last report on Western Sahara, 'the
fundamental difficulty [in seeking a solution] is that each party has a
different vision and reading of the history and documents relating to
the conflict. Morocco insists that Western Sahara is already part of
Morocco, that the sole basis for negotiations is its initiative for
autonomy under Moroccan sovereignty and that Algeria must be a party to
those negotiations. [The Front] Polisario insists that, since the
General Assembly identifies Western Sahara as a Non-Self-Governing
Territory, its autochthonous population must decide its future in a
referendum with independence as an option, that all proposals and ideas
the parties put forward should be on the table and that the only parties
to the negotiation are [the Front] Polisario and Morocco'. |154|
182. It follows from all of the above facts
that, instead of being able to exercise its right to self-determination
along the lines stated by the International Court of Justice in its
Advisory Opinion on Western Sahara, |155|
the people of Western Sahara have thus far been deprived of the
opportunity even to exercise that right on the conditions set out in
United Nations General Assembly Resolutions 1514 (XV), 1541 (XV), 2625
(XXV) and 3458 A and B (XXX), by a series of measures culminating in the
partition of the territory of Western Sahara in 1976 and its annexation
in 1976 and 1979. The fact that some of those measures are imputable to
several States does not detract from the existence and gravity of the
breach of that people's right to self-determination.
183. Furthermore, whereas those resolutions
provide that the right to self-determination entails a free choice
between three options, |156| including independence, |157|
association with another independent State and integration within an
independent State, and also the organisation of a referendum |158|
(instead of consultation of the Yema'a), the Kingdom of Morocco
proceeded to integrate Western Sahara in its territory by partition and
annexation, without consulting the people of Western Sahara and without
United Nations supervision.
184. In that sense, the taking of an oath of
allegiance to the King of Morocco pronounced on behalf of the Saharawi
tribes by the President of the Yema'a on 4 November 1975 and the
meeting of the Yema'a on 26 February 1976, which were not
recognised by the United Nations and the Kingdom of Spain as
administering Power of Western Sahara and member of the interim
administration of Western Sahara, do not constitute the consultation of
the people of Western Sahara on self-determination required by United
Nations General Assembly Resolutions 1514 (XV), 1541 (XV), 2625 (XXV)
and 3458 A and B (XXX).
185. It follows from the foregoing that
Western Sahara was integrated within the Kingdom of Morocco without the
people of that territory having freely expressed its will in that
respect. As the Fisheries Agreement and the 2013 Protocol were concluded
by the Kingdom of Morocco on the basis of the unilateral integration of
Western Sahara into its territory and the assertion of its sovereignty
over that territory, it is clear that the people of Western Sahara have
not freely disposed of its natural resources, as required by
Article 1 common to the ICESCR and the ICCPR, paragraph 2 of
United Nations General Assembly Resolution 1514 (XV) and Title VII of
the Helsinki Final Act of 1975.
186. The fisheries exploitation of the
waters adjacent to Western Sahara established and implemented by the
contested acts therefore does not respect the right of the people of
that territory to self-determination. |159|
(2) The
obligation not to recognise an illegal situation resulting from a breach
of the right of the people of Western Sahara to self-determination and
not to render aid or assistance in maintaining that situation
187. Even if the Court held that the
contested acts did not in themselves breach the right of the people of
Western Sahara to self-determination and that the breach of that right
is not imputable to the Union, but solely to the Kingdom of Morocco, the
fact would remain that the contested acts would not respect the Union's
obligation not to recognise an illegal situation resulting from the
breach of the right of the people of Western Sahara to
self-determination and not to render aid or assistance in maintaining
that situation. |160|
188. As is clear from their wording, the
Fisheries Agreement and the 2013 Protocol cover Western Sahara and the
waters adjacent thereto as an agreement exclusively applicable to the
territory recognised as the sovereign territory of the Kingdom of Morocco by the international community.
189. It should be emphasised, in that
regard, that, as the Permanent Court of International Justice has held,
'the right of entering into international engagements is an attribute of
State sovereignty' |161| over the territory to which those engagements relate.
190. That also applies to international
agreements relating to the sea. According to the settled case-law of the
International Court of Justice, 'maritime rights derive from the
coastal State's sovereignty over the land, a principle which can be
summarised as "the land dominates the sea" ... It is thus the terrestrial
territorial situation that must be taken as starting point for the
determination of the maritime rights of a coastal State'. |162|
191. However, according to the International
Court of Justice, 'it is well established that "the title of a State to
... the exclusive economic zone is based on the principle that the land
dominates the sea through the projection of the coasts or the coastal
fronts" ... As the Court stated ... "the land is the legal source of the
power which a State may exercise over the territorial extensions to
seaward" ...'. |163|
192. If the land therefore dominates the
sea, there is no doubt that, as Comader maintains, when the Kingdom of
Morocco concluded the Fisheries Agreement it considered that it had
sovereignty over Western Sahara with the rights and obligations over the
waters adjacent to that territory that international law confers on the
coastal State. |164| In fact, as King Mohammed VI declared on the occasion of the 39th
anniversary of the Green March, 'I say no to the attempt to alter the
nature of this regional conflict by presenting it as a case of
decolonisation. Morocco has never been an occupying power or an
administering power in its Sahara. Rather, it exercises the attributes
of its sovereignty over its land'. |165|
193. For that reason, the Council's and the
Commission's argument that, in referring to the 'waters coming under the
sovereignty or the jurisdiction of the Kingdom of Morocco', the
contested acts contain no recognition of the Kingdom of Morocco's claim
to sovereignty over the territory of Western Sahara and of the
sovereignty or jurisdiction which that State claims to exercise over the
waters adjacent to that territory, must be rejected.
194. In the first place, the negotiation and
conclusion with the Kingdom of Morocco of an international agreement
applicable to Western Sahara and to the waters adjacent thereto
constitutes in itself de jure recognition of the integration |166|
of Western Sahara in the Kingdom of Morocco by the annexation effected
in 1976 and 1979, which means recognition of its sovereignty over the
territory, the inland waters and the territorial sea of Western Sahara
and of the sovereign rights and jurisdiction which international law
confers on the coastal State over the maritime zones beyond the
territorial sea.
195. I recall that, in the East Timor case,
between the Portuguese Republic (as the administering power expelled
from East Timor by the Republic of Indonesia) and the Commonwealth of
Australia (as a third country which had concluded with the Republic of
Indonesia an international agreement applicable to East Timor), the
Commonwealth of Australia had considered that '[the start of the
negotiations for the conclusion of the 1989 Treaty concerning the Timor
Gap] signif[ied] de jurerecognition by Australia of the Indonesian incorporation of East Timor'. |167|
196. The fact that a fisheries agreement
applicable to a territory and its maritime zones is apt to constitute
proof of recognition of sovereignty is demonstrated by the actual
history of Western Sahara. I recall in that regard that the Kingdom of
Morocco had adduced as proof of its sovereignty over Western Sahara the
international agreements which it had concluded with several States,
including in particular trade and fisheries agreements concluded with
the Kingdom of Spain since 1767. |168|
197. As the International Court of Justice
has held, the annexation of a territory whose people benefit from the
right to self-determination while that people have not yet exercised
that right constitutes a breach of the obligation to respect that
right. |169|
Consequently, a third party breaches its obligation not to recognise an
illegal situation resulting from a breach of that right when it de jure recognises, by concluding an international agreement, the annexation of such a territory.
198. In the second place, the words 'waters
coming under the sovereignty or the jurisdiction of the Kingdom of
Morocco' do not suffice to preclude de jure recognition of the sovereignty of the Kingdom of Morocco over Western Sahara, for two main reasons.
199. The first reason is that the Fisheries
Agreement and the 2013 Protocol do not apply solely to the waters
adjacent to Western Sahara, but also to its territory. |170|
In that sense, the use of the words 'waters coming under the
sovereignty or the jurisdiction of the Kingdom of Morocco' cannot
preclude de jure recognition of the sovereignty of the Kingdom of
Morocco over the territory of Western Sahara and therefore breach of
the right of the people of that territory to self-determination.
200. The second reason relates to the
application of the Fisheries Agreement and of the 2013 Protocol to the
waters adjacent to Western Sahara. Contrary to the Commission's
contention, the expression 'waters under Moroccan jurisdiction, |171|
taken from the fisheries agreements concluded between the Kingdom of
Spain and the Kingdom of Morocco before the accession of the Kingdom of
Spain to the European Union, does not allow the waters adjacent to
Western Sahara to be identified without recognition of the sovereign rights and the jurisdiction which the Kingdom of Morocco claims to exercise over those waters as coastal State. |172|
Like the principle that the land dominates the sea, recognition of
sovereignty over the land entails recognition of sovereign rights over
the sea and vice versa.
201. In that regard, it should be emphasised
that the fisheries agreements concluded by the Kingdom of Spain and the
Kingdom of Morocco date from before the ratification of the United
Nations Convention on the Law of the Sea, concluded at Montego Bay on
10 December 1982 |173| ('the UNCLOS'), by the European Union, |174|
its Member States and the Kingdom of Morocco, whereas the Fisheries
Agreement at issue in the present case was signed and ratified on the
basis of that convention, which 'shall prevail, as between States
Parties, over the Geneva Conventions on the Law of the Sea of
29 April 1958'. |175|
202. The Convention on Fishing and
Conservation of the Living Resources of the High Seas, done at Geneva on
29 April 1958, did not establish the right for States to establish
an exclusive economic zone (EEZ), but Article 2 of that latter
convention provided that no State could subject the high seas to its
sovereignty and that freedom of the high seas entailed freedom of
fishing. In addition, according to Article 6 of that convention,
ships on the high seas were to be subject to the exclusive jurisdiction
of the State of their flag.
203. Not only does the legal context in which the words 'waters under Moroccan jurisdiction' ('aguas bajo jurisdicción marroquí')
had a meaning no longer exist between the Union and the Kingdom of
Morocco, but it has been replaced by the UNCLOS. The phrase 'waters
coming under the sovereignty or the jurisdiction of the Kingdom of
Morocco' must therefore be assessed in the light of the legal regime
established by the UNCLOS, which established in international law the
concept of the EEZ, which already existed in the practice of States.
204. That reading of the Fisheries Agreement
in the light of the UNCLOS is confirmed both by recital 2 of the
Fisheries Agreement |176|
and by Article 5(4) of that agreement, which refers to the
Moroccan legislation 'governing fisheries in the waters over which
Morocco has jurisdiction, in accordance with [the UNCLOS]'.
205. According to the UNCLOS, the internal
waters of a State and its territorial sea are the waters under its
sovereignty, |177| whereas the EEZ comes under 'the jurisdiction' of the coastal State. |178|
In that sense, the first part of the phrase used in the contested acts,
'waters falling within the sovereignty or jurisdiction of the Kingdom
of Morocco', refers to the internal waters and the territorial sea of
the Kingdom of Morocco (waters coming under its sovereignty), whereas
the second part refers to its EEZ (waters coming within its
jurisdiction).
206. However, as the Commission acknowledges
in paragraph 14 of its replies to the written questions put by the
Court, unlike the EEZ established by the Saharawi Arab Democratic
Republic (an entity not recognised by the European Union and its Member
States), the present Moroccan EEZ, established in 1981 even before the
ratification of the UNCLOS by the Kingdom of Morocco, does not cover the
waters adjacent to Western Sahara which are covered by fishing zones
Nos 3 to 6 of the Fisheries Agreement, |179|
which is why the Governing Council of the Kingdom of Morocco also
adopted, on 6 July 2017, draft Law No 38-17 amending and
supplementing Law No 1-18 establishing an exclusive economic zone
of 200 nautical miles along the coasts of Morocco and Western
Sahara. |180|
207. In those circumstances, fisheries 'in
the waters over which Morocco has jurisdiction, in accordance with [the
UNCLOS]]' |181| should stop at the parallel 27º42'N, which serves as both the external limit of the present Moroccan EEZ |182| and the border between the Kingdom of Morocco and Western Sahara. |183| However, fishing zones Nos 3 to 6 essentially cover the waters south of that border which are adjacent to Western Sahara.
208. As the Commission acknowledges, fishing in an EEZ is a sovereign right of the coastal State. |184|
Consequently, in concluding the Fisheries Agreement covering the waters
constituting the EEZ of Western Sahara, the European Union recognises de jure that the Kingdom of Morocco exercises a sovereign right in those waters.
209. Last, contrary to the Commission's
submission, the terms 'waters under the jurisdiction' and 'waters
falling within the sovereignty and the jurisdiction' are not peculiar to
the contested acts, which would indicate that they referred to the
specific situation of Western Sahara. On the contrary, they are standard
terms used to describe the scope of the fisheries agreements concluded
by the Union |185|
and, in that sense, they refer to the internal waters and the
territorial sea of the third country (waters falling within its
sovereignty) as well as to its EEZ (waters falling within its
jurisdiction).
210. Consequently, contrary to the Council's
and the Commission's contention, the use of the expression 'waters
falling within the sovereignty or jurisdiction of the Kingdom of
Morocco' constitutes recognition of the exercise by the Kingdom of
Morocco of sovereign rights over Western Sahara and the waters adjacent
thereto. That recognition will be even clearer upon the entry into force
of draft Law No 38-17, whereby the Kingdom of Morocco will
establish an EEZ on the waters adjacent to Western Sahara.
211. In addition, by the contested acts, the
Union rendered aid and assistance in maintaining the illegal situation
resulting from the breach of the right of the people of Western Sahara
to self-determination. That aid takes the form of economic advantages
(in particular the financial contribution) which the Fisheries Agreement
and the 2013 Protocol confer on the Kingdom of Morocco. |186|
212. Since the assertion of Moroccan
sovereignty over Western Sahara is the result of a breach of the right
of the people of that territory to self-determination, for the reasons
which I have stated in points 147 to 186 of this Opinion, the
European Union has failed to fulfil its obligation not to recognise the
illegal situation resulting from the breach of the right of the people
of Western Sahara to self-determination by the Kingdom of Morocco and
also not to render aid or assistance in maintaining that
situation. |187| For
that reason, in so far as they apply to the territory of Western Sahara
and to the waters adjacent thereto, the Fisheries Agreement and the 2013
Protocol are incompatible with Article 3(5) TEU, the first
subparagraph of Article 21(1) TEU, Article 21(2)(b) and (c)
TEU and Articles 23 TEU and 205 TFEU, which impose on the European
Union the obligation that its external action is to protect human rights
and strictly respect international law.
213. Regulation No 764/2006, Decision
2013/785 and Regulation No 1270/2013 are therefore contrary to
Article 3(5) TEU, the first subparagraph of Article 21(1) TEU,
Article 21(2)(b) and (c) TEU and Articles 23 TEU and 205 TFEU
in that they approve and implement the application of the Fisheries
Agreement and of the 2013 Protocol in the territory of Western Sahara
and the waters adjacent thereto.
(3) Would the
international agreements applicable to Western Sahara have been
concluded with the Kingdom of Morocco on a basis other than its
assertion of sovereignty over that territory?
214. The preceding analysis is based on the
Kingdom of Morocco's assertion of its sovereignty over Western Sahara
that enabled it to conclude the Fisheries Agreement and the 2013
Protocol with the European Union.
215. However, as Comader said at the
hearing, whatever the Kingdom of Morocco's view of that question, the
latter accepts that the European Union and its Member States may have a
different view.
216. I shall therefore consider whether the
conclusion of the Fisheries Agreement and the 2013 protocol might be
justified on the basis of another capacity that the Kingdom of Morocco
might have with respect to Western Sahara, which would give it what the
Commission called at the hearing 'treaty-making power' binding on the
non-autonomous territory of Western Sahara.
217. In that regard, the French Government,
the Commission and the Council maintain that the Kingdom of Morocco is
the 'de facto administering power' of Western Sahara, which permits the
conclusion of the international agreements applicable to Western Sahara
and the adjacent waters without any breach of the right of its people to
self-determination.
218. On the other hand, WSC maintains that, as the occupying power of Western Sahara, |188| the Kingdom of Morocco cannot conclude any international agreement applicable to Western Sahara and the adjacent waters.
219. The Spanish and Portuguese Governments
have not taken a position on that issue, the Spanish Government merely
stating that the Kingdom of Morocco is not the occupying power of
Western Sahara, but without stating in what capacity it might then
conclude international agreements applicable to that territory and the
adjacent waters.
220. The question of the existence in
international law of a legal basis that would allow the Union to
conclude international agreements applicable to Western Sahara and the
adjacent waters with the Kingdom of Morocco is a question of
interpretation of international law to which the conditions governing
the possibility of relying on international law are not applicable.
(i) The Kingdom of Morocco as de facto administering power of Western Sahara
221. In my view, the theory put forward by
the French Government, the Council and the Commission that the Kingdom
of Morocco is the 'de facto administering power' of Western Sahara must
be rejected. It should be emphasised that neither the Spanish Government
nor the Portuguese Government has used those words.
222. It follows from Article 73 of the
United Nations Charter that the expression 'administering power' means
'Members of the United Nations which have or assume responsibilities for
the administration of [non-self-governing] territories'. The Kingdom of
Morocco did not have responsibility for the administration of Western
Sahara when it acceded to the United Nations in 1956 and has never
assumed such responsibility, since it considers itself to have
sovereignty over that territory. |189|
223. Furthermore, the concept of 'de facto
administering power' does not exist in international law and was used
for the first time by the Commission in the answer given on its behalf
by the High Representative of the European Union for Foreign Affairs and
Security Policy, Vice-President of the Commission, Baroness Catherine
Ashton, to the parliamentary questions having the references
E-001004/11, P-001023/11 and E-002315/11. |190|
224. In fact, the Council and the Commission
have been unable to give a single other example in which that
expression has been used to describe the relationship between a State
and a non-self-governing territory. It should be pointed out in that
regard that in the contemporary and very similar case of the annexation
of East Timor by the Republic of Indonesia, the expression 'de facto
administering power' was not used to describe the status of the Republic
of Indonesia in its relationship with East Timor. On the contrary, the
International Court of Justice described the military intervention of
the Republic of Indonesia in East Timor as an occupation. |191|
225. Nor can the fact that, by the Madrid
Agreement, the Kingdom of Morocco became a member of the interim
administration of Western Sahara confer on it the status of
administrative power able to conclude international agreements
applicable to Western Sahara without breaching the right of the people
of that territory to self-determination. First, the legitimacy of the
Madrid Agreement is strongly contested, |192|
which is confirmed by the fact that Resolution 3458 B (XXX), which
takes note of that agreement, was approved by only 56 States, while a
number of Member States of the European Union voted against or
abstained. |193|
Second, as is apparent from paragraph 4 of Resolution 3458 B (XXX),
the United Nations General Assembly took note of the Madrid Agreement
and the existence of the interim administration only in so far as that
administration was supposed to take all necessary steps to ensure that
the people of Western Sahara would be able to exercise their right to
self-determination. In that sense, even the States that voted for that
resolution, including in particular the United States, do not recognise
that the Kingdom of Morocco has the status of administering power, but
recognise that the Kingdom of Morocco has placed Western Sahara under
its 'administrative control'. |194|
In that context, the conclusion of the international agreements, and
especially the agreements for the exploitation of the natural resources
of Western Sahara like the Fisheries Agreement, goes much further than
even the broadest interpretation that might be placed on the mandate
entrusted to the interim administration of Western Sahara, of which the
Kingdom of Morocco was a member.
226. In any event, only the United Nations
General Assembly has the power to recognise a territory as
non-self-governing and, accordingly, to identify its administering
power. |195|
227. The two examples given by the Commission, relating to the Cocos (Keeling) Islands and Western New Guinea, |196|
confirm that privileged role of the United Nations General Assembly. In
the case of the Cocos (Keeling) Islands, the United Kingdom had
withdrawn those islands from the colony of Singapore and placed them
under the authority of the Commonwealth of Australia. |197|
Although the United Nations General Assembly had not given prior
authorisation for that transfer, the Commonwealth of Australia continued
the United Kingdom's practice of transmitting to the United Nations the
information provided for in Article 73(e) of the United Nations
Charter from 1957 |198|
and the General Assembly subsequently approved that transfer by showing
the Commonwealth of Australia as the administering power of the Cocos
(Keeling) Islands in its list of non-self-governing territories. |199|
228. As regards Western New Guinea, whose
administering power was the Kingdom of the Netherlands, contrary to the
Commission's contention, the transfer of that territory by the Kingdom
of the Netherlands to the United Nations Temporary Executive Authority,
and by that authority to the Republic of Indonesia, was done by
international treaty which entered into force only after it had been approved by the United Nations General Assembly. |200|
229. In the present case, although Western
Sahara was recognised in 1960 by the United Nations General Assembly as a
non-self-governing territory, |201| the General Assembly has never recognised that the Kingdom of Morocco has the status of administering power (de jure or de facto)
and even continues, to the present time, to show the Kingdom of Spain
as administering power in its list of non-self-governing territories and
administering powers. |202|
230. That conclusion is reinforced by the
letter of 29 January 2002 to the President of the Security Council
from the Under-Secretary-General for Legal Affairs, the Legal Counsel,
Hans Corell, in which it was stated that 'the Madrid Agreement did not
transfer sovereignty over the Territory, nor did it confer on any of the
signatories the status of an administering Power, a status which Spain
alone could not have unilaterally transferred'. |203|
Furthermore, although the writer noted that '[since 1976] Morocco has
administered the Territory of Western Sahara alone', which is an
indisputable fact, he added that 'Morocco, however, is not listed as the
administering Power of the Territory in the United Nations list of
Non-Self-Governing Territories, and has, therefore, not transmitted
information on the Territory in accordance with Article 73(e) of
the Charter of the United Nations'. |204|
231. For the remainder, the Under-Secretary-General for Legal Affairs analysed by analogy
the legality of the decisions taken by the Moroccan authorities
consisting in the offering and signing of contracts with foreign
companies for the exploration of mineral resources in Western Sahara, on
the basis of the principles applicable to the powers and
responsibilities of an administering Power in matters of mineral
resource activities in non-self-governing territories. |205|
He based that analogy with the legal regime applicable to administering
Powers on the idea that, as Western Sahara is a non-self-governing
territory and as that regime exists for the benefit of its people, the
Kingdom of Morocco should at a minimum have the same obligations as an
administering Power.
232. However, that letter cannot serve as a
basis for the existence, in international law, of the concept of 'de
facto administering power', in particular with respect to the question
of the conclusion of international agreements which, unlike the
signature of contracts with private companies, is 'an attribute of ...
sovereignty'. |206|
233. Last, it should be noted that the
ability of the administering power to conclude international agreements
applicable to the non-self-governing territory and concerning essential
elements of the right of peoples, including the right to
self-determination and the principle of permanent sovereignty over
natural resources, is restricted from the time when 'the activity [of a
national liberation movement] had an international impact'. |207|
Consequently, even if the Kingdom of Morocco were recognised as having
the status of administering power, its ability to conclude international
agreements applicable to Western Sahara would have been
'restricted'. |208|
(ii) The Kingdom of Morocco as occupying power of Western Sahara
234. The referring court and WSC maintain
that the Kingdom of Morocco is in occupation of Western Sahara. Unlike
the referring court, however, WSC maintains that, as occupying power,
the Kingdom of Morocco cannot in any case conclude an international
agreement with the European Union that would be applicable in Western
Sahara and the adjacent waters.
235. As regards the EU institutions, there
is a significant difference between the positions adopted by the Council
and the Commission. The Council categorically denies that the rules of
international law on military occupations are applicable to Western
Sahara, whereas the Commission does not preclude the applicability of
those rules and maintains that the legal regimes applicable to
administering powers and to occupying powers are not mutually exclusive.
236. I do not support WSC's argument, since,
in certain circumstances, an occupying power can conclude international
agreements applicable to the occupied territory. Is that the case here?
- The applicability of international humanitarian law to Western Sahara
237. The provisions of international
humanitarian law (or law relating to armed conflicts) relevant for the
analysis which follows are Articles 42 and 43 of the 1907 Hague
Regulations, Articles 2 and 64 of the Fourth Geneva Convention and
Article 1(4) of the First Protocol additional of 8 June 1977
to the Geneva Conventions of 12 August 1949 relating to the
protection of victims of international armed conflicts |209| ('Additional Protocol I'). |210|
238. It should be noted at the outset that,
as the International Court of Justice has held, '[the fundamental rules
of international humanitarian law, including the 1907 Hague Regulations]
are to be observed by all States whether or not they have ratified the
conventions that contain them, because they constitute intransgressible
principles of international customary law' |211| and 'incorporate obligations which are essentially of an erga omnes character'. |212|
239. In fact, in the words of Article 1
of the Fourth Geneva Convention, a provision common to the four Geneva
Conventions, 'the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances'. |213|
240. According to the International Court of
Justice, 'it follows from that provision that every State party to that
Convention, whether or not it is a party to a specific conflict, is
under an obligation to ensure that the requirements of the instruments
in question are complied with'. |214|
241. In that sense, in accordance with
Article 3(5) TEU, acting in strict compliance with international
law, the Union is under an obligation not to recognise an illegal
situation resulting from a breach of those rules and not to render aid
or assistance in maintaining that situation. |215|
242. The Fourth Geneva Convention is
applicable where two conditions are fulfilled, namely where an armed
conflict exists (whether or not a state of war has been recognised) and
where that conflict has arisen between two contracting parties. |216|
According to the International Court of Justice, 'the object of the
second paragraph of Article 2 is not to restrict the scope of
application of the Convention, as defined by the first paragraph, by
excluding therefrom territories not falling under the sovereignty of one
of the contracting parties. It is directed simply to making it clear
that, even if occupation effected during the conflict met no armed
resistance, the Convention is still applicable'. |217|
243. Furthermore, Article 1(4) of
Additional Protocol I extends the application of the four 1949 Geneva
Conventions to 'armed conflicts in which peoples are fighting against
colonial domination and alien occupation ... in the exercise of their
right of self-determination'. |218|
That is the case of the people of Western Sahara, who have not yet
exercised that right and are in a procedure of decolonisation. |219|
244. It follows from the foregoing that the
armed conflict that took place in Western Sahara between 1976 and 1988
is an international armed conflict and that the 1907 Hague Regulations
are therefore applicable to Western Sahara.
- The existence of a military occupation in Western Sahara
245. In that context, it is appropriate to
examine whether the Kingdom of Morocco's presence in Western Sahara is
an occupation within the meaning of Article 42 of the 1907 Hague
Regulations that the Union cannot recognise or to which it cannot render
aid or assistance. According to that provision, 'territory is
considered occupied when it is actually placed under the authority of
the hostile army'.
246. In that regard, it should first of all be stated that the existence of a state of occupation is a question of fact. |220| The referring court, HMRC and the Secretary of State maintain that Western Sahara is under Moroccan occupation, |221| which is confirmed by United Nations General Assembly Resolution 34/37, |222| to which the Court referred in paragraphs 35 and 105 of its judgment of 21 December 2016, Council v Front Polisario (C-104/16 P, EU:C:2016:973).
247. Furthermore, the existence of a Moroccan occupation in Western Sahara is widely recognised, |223| even by Hans Corell, |224|
who, as United Nations Under-Secretary-General for Legal Affairs and
Legal Counsel, had delivered the legal consultation on the legality of
the decision taken by the Moroccan authorities to enter into contracts
with foreign companies for the exploration of mineral resources in
Western Sahara. |225|
248. Last, according to the International
Court of Justice, in order to know whether 'a State, the military forces
of which are present on the territory of another State as a result of
an intervention, is an "occupying Power" in the meaning of the term as
understood in the jus in bello, [it is necessary to examine]
whether there is sufficient evidence to demonstrate that the ... authority
[of the hostile army] was in fact established and exercised by the
intervening State in the areas in question'. |226|
249. That is clearly the case for the
greater part of Western Sahara, which extends to the west from the sand
wall built and controlled by the Moroccan army and which has been under
the authority of the Kingdom of Morocco since its annexation in two
stages (in 1976 and in 1979 |227|). It has been administered in a structured manner |228|
by the Kingdom of Morocco since that time, without the consent of the
people of Western Sahara, which has not yet exercised its right to
self-determination. |229|
250. It should further be noted that the
existence of an occupation is not limited to the continental territory,
but also extends to the internal waters and to the territorial
sea. |230| As an EEZ
does not come under the sovereignty of the coastal State, an occupation
does not extend to that zone but the occupying power of the coastal
territory, in this instance the Kingdom of Morocco, may exercise in that
zone the jurisdiction which the law of the sea confers on the coastal
territory. |231|
- The
capacity of the occupying power to conclude international agreements
applicable to the occupied territory and the conditions of legality to
which the conclusion of such agreements is subject
251. As regards the capacity of an occupying
power to conclude international agreements applicable to the occupied
territory, it should be noted that it follows from Article 43 of
the 1907 Hague Regulations |232| and from the second subparagraph of Article 64 of the Fourth Geneva Convention |233|
that the occupying power may promulgate laws in order to ensure the
public life and the orderly government of the occupied territory. |234|
As the Commission observes, that legal power which the occupying power
enjoys in that occupied territory includes the capacity to conclude
international agreements applicable to that territory. |235|
In that regard, it should be noted that the International Court of
Justice has not excluded outright the possibility that third parties
will conclude international agreements applicable to a
non-self-governing territory solely with the administering power which
is no longer carrying out its mission because of the military
intervention. |236|
252. However, in concluding an international
agreement applicable to the occupied territory, the occupying power
must act in its capacity as occupying power and not as having
sovereignty over the occupied territory, |237| because the annexation of an occupied territory is strictly forbidden. |238|
253. In that sense, for example, the Swiss Confederation concluded with the Coalition Provisional Authority |239| acting expressly on behalf of the Republic of Iraq an agreement on the export risks guarantee, |240|
being of the view that 'an occupying State has the legal power in the
State which it occupies (Article 43 of the 1907 Hague Regulations)
[which] means in particular that the occupying power may promulgate laws
or conclude international agreements on behalf of the occupied
State'. |241| That practice was supported by United Nations Security Council Resolutions 1483 (2003) of 23 May 2003 |242| and 1511 (2003) of 16 October 2003. |243|
254. It is clear from its wording that that
framework agreement was not concluded with the occupying powers of the
Republic of Iraq but with the Coalition Provisional Authority, which,
'in application of the laws and customs of war ... [had] temporarily the
force of governmental authority in Iraq'. |244|
There was thus no question of recognition by the Swiss Confederation of
an illegal situation resulting from a breach of the intransgressible
rules of international customary laws which incorporate obligations erga omnes.
255. In this instance, the wording of the
Fisheries Agreement and the 2013 Protocol does not expressly state that
those instruments were concluded with the Kingdom of Morocco in its
capacity as occupying power of Western Sahara. On the contrary, to all
appearances, the Kingdom of Morocco concluded those agreements as the
sovereign of Western Sahara. Consequently, contrary to the Commission's
assertion in paragraph 139 of its observations, Article 43 of
the 1907 Hague Regulations and Article 64(2) of the Fourth Geneva
Convention do not authorise the conclusion of the Fisheries Agreement
and of the 2013 Protocol in the form and manner in which they were
concluded, even if the Kingdom of Morocco were to be considered to be
the occupying power of Western Sahara.
(b) Compliance by
the contested acts with the principle of permanent sovereignty over
natural resources and with the rules of international humanitarian law
applicable to the exploitation of natural resources of the occupied
territory
(1) The principle of permanent sovereignty over natural resources
256. Western Sahara is a non-self-governing
territory in the course of being decolonised. On that basis, the
exploitation of its natural wealth comes under Article 73 of the
United Nations Charter and the customary principle of permanent
sovereignty over natural resources. |245|
In addition, the UNCLOS provides in Resolution III annexed to the Final
Act of the Third United Nations Conference on the Law of the Sea that
'in the case of a territory whose people have not attained full
independence or other self-governing status recognised by the United
Nations, or a territory under colonial domination, provisions concerning
rights and interests under the [UNCLOS] shall be implemented for the
benefit of the people of the territory with a view to promoting their
well-being and development'.
257. In that context, the exploitation of
the natural resources of a non-self-governing territory, including the
fishing of the waters adjacent to that territory, must benefit its
people. |246|
(2) Article 55 of the 1907 Hague Regulations
258. As the occupying power of Western Sahara, |247|
the Kingdom of Morocco is bound by Article 55 of the 1907 Hague
Regulations, which concerns the exploitation of the public property of
the occupied country. According to that article, 'the occupying State
shall be regarded only as administrator and usufructuary of public
buildings, real estate, forests, and agricultural estates belonging to
the hostile State, and situated in the occupied country. It must
safeguard the capital of these properties, and administer them in
accordance with the rules of usufruct'.
259. Like the Commission, I consider that
Article 55 of the 1907 Hague Regulations may also be applied to the
exploitation of the fisheries stocks of maritime zones situated
alongside the coasts of the occupied territory.
260. Usufruct is the right to use assets (jus utendi) belonging to others and to receive the proceeds of those assets (jus fruendi), without altering their substance. |248|
That means that the occupying power cannot dispose of the public assets
of the occupied country but that it may exploit them, receive and sell
the proceeds of those assets and use the profits generated by the
disposal of the proceeds of that exploitation, but that that
exploitation may not exhaust, abandon or destroy the economic value of
the assets in question or go beyond what is necessary or
habitual. |249|
261. The wording of Article 55 places
no specific limits on the purposes of the disposal of the proceeds of
exploitation of the public property. |250|
However, it has been held that 'Articles 53, 55, and 56 [of the
1907 Hague Regulations], dealing with public property, make it clear
that under the rules of war the economy of an occupied country can only
be required to bear the expenses of the occupation, and these should not
be greater than the economy of the country can reasonably be expected
to bear'. |251|
262. In addition, an exploitation of public
property in order to satisfy the needs of the people of the occupied
territory is permitted under Article 55 of the 1907 Hague
Regulations, a fortiori in the context of a prolonged occupation. |252|
263. Thus, during the occupation of Iraq,
the United States of America, the United Kingdom and the members of the
coalition immediately accepted that 'Iraq's oil [would be] protected and
used for the benefit of the Iraqi people' |253|
and, in accordance with paragraph 20 of United Nations Security
Council Resolution 1483 (2003), established the Development Fund for
Iraq |254| in order to
pay into that fund all the proceeds of the export sales of petroleum,
petroleum products and natural gas from Iraq until an internationally
recognised, representative government of Iraq was properly constituted.
(3) Compliance by
the contested acts with the principle of permanent sovereignty over
natural resources and with Article 55 of the 1907 Hague Regulations
264. It should be observed, first of all,
that international humanitarian law, including Article 55 of the
1907 Hague Regulations, constitutes a lex specialis by comparison
with the other rules of international law, including human rights,
which may also be applicable to the same factual context. |255|
265. Admittedly, the International Court of
Justice has held, as regards the principle of permanent sovereignty over
natural resources, that 'there is nothing ... which suggests that [that
principle is] applicable to the specific situation of looting, pillage
and exploitation of certain natural resources by members of the army of a
State militarily intervening in another State'. |256|
266. However, the present case does not
concern looting or pillage and exploitation of natural resources by
individual members of the army, but an official and systematic policy of
exploitation of the fisheries resources |257| put in place jointly by the Kingdom of Morocco and the European Union.
267. In that sense, certain situations may
come exclusively within international humanitarian law; or exclusively
within the law applicable to the exploitation of the natural resources
of non-self-governing territories; while other situations may come at
the same time within both of those branches of international law. |258|
268. As the Commission observes in
paragraph 43 of its answers to the written questions put by the
Court, the legal regimes applicable to non-self-governing territories
and to occupied territories are not mutually exclusive. Furthermore, as
regards the present case, the principle of permanent sovereignty over
natural resources and Article 55 of the 1907 Hague Regulations
converge on one point, namely that the exploitation of the natural
resources of Western Sahara (as a non-self-governing territory and an
occupied territory) cannot be carried out for the economic benefit of
the Kingdom of Morocco (other than the costs of occupation in so far as
Western Sahara may reasonably provide for them) but must be carried out
for the benefit of the people of Western Sahara.
269. In that regard, it should be borne in
mind that both the Council and the Commission are agreed that the
exploitation of the fishing zones alongside the coasts of Western Sahara
must benefit the people of that territory, while considering that the
provisions of the Fisheries Agreement and of the 2013 Protocol are apt
to ensure that that is indeed the case.
270. I do not agree with that argument, for the following reasons.
271. It should be noted that the Fisheries Agreement provides for the sustainable exploitation of the fisheries stocks |259|
and in that sense does not lead to the exhaustion of that resource. On
that basis, the Fisheries Agreement seems at first sight to be
consistent with the usufruct rules referred to in Article 55 of the
1907 Hague Regulations |260|
and with the principle of permanent sovereignty over natural resources.
In fact, an exploitation of the waters adjacent to Western Sahara that
exhausted the fisheries stocks could not be considered to be for the
benefit of the people of that territory.
272. However, it is apparent from Article 2 of Regulation No 764/2006, fishing zone datasheets Nos 3 to 6 |261| and the information provided by the Commission at the hearing |262|
that most of the exploitation provided for in the Fisheries Agreement
and the 2013 Protocol relates exclusively to the waters adjacent to
Western Sahara. In fact, the catches taken in fishing zone No 6
alone (which covers only the waters adjacent to Western Sahara)
represent around 91.5% of the total catches in the context of the
fisheries exploitation established by the Fisheries Agreement and the
2013 Protocol.
273. If, therefore, the Fisheries Agreement
applies almost exclusively to Western Sahara and the waters adjacent
thereto, it follows that the financial contribution paid to the Kingdom
of Morocco pursuant to Article 7 of the Fisheries Agreement should
also, as the Council and the Commission accept, benefit almost
exclusively the people of Western Sahara (unless it is used to cover the
costs of occupation in so far as that territory may reasonably provide
for them). |263|
274. However, Article 3(1) of the 2013
Protocol provides that the annual financial contribution of EUR 40
million is to be divided into two parts, one of EUR 30 million paid
under Article 7 of the Fisheries Agreement (EUR 16 million as a
financial contribution for access to the resource and EUR 14
million as support for the fisheries sector in Morocco) and one of
EUR 10 million corresponding to the estimated amount of fees owed
by shipowners under the fishing licences granted under Article 6 of
the Fisheries Agreement.
275. In accordance with Article 3(4) of
the 2013 Protocol, that contribution is to be paid to the
Treasurer-General of the Kingdom of Morocco into an account opened with
the Public Treasury of the Kingdom of Morocco (whereas in the case of
the occupation of Iraq the proceeds of the sales of oil were paid to the
Development Fund for Iraq).
276. As regards the use to which it is put,
Article 3(5) and Article 6(1) of the 2013 Protocol provide
that the Moroccan authorities are to have full discretion
regarding the annual financial contribution of EUR 40 million, but
for the EUR 14 million (support for the sectoral fisheries policy
in Morocco), they establish a mechanism for the monitoring and control
by the EU, within a joint committee, of its use by the Moroccan
authorities.
277. In accordance with Article 5(6) of
the 2013 Protocol, that mechanism permits only the general monitoring
of the 'social and economic consequences [of the Fisheries Agreement],
particularly the impact on employment, investment and any other
quantifiable repercussions of the measures taken, together with their
geographical distribution'.
278. According to the Commission, that
monitoring mechanism enabled it to ensure that for the period of
validity of the 2013 Protocol (2014 to 2018), EUR 54 million was or
will be used for the construction of new-generation markets, premises
for fishers and managed landing sites for aquaculture products, and that
around 80% of the projects funded by that aid are located in Western
Sahara.
279. To my mind, it follows from those
factors that neither the Fisheries Agreement nor the 2013 Protocol
contains the necessary legal safeguards for the fisheries exploitation
to satisfy the requirements of the criterion which requires that that
exploitation is for the benefit of the people of Western Sahara.
280. In the first place, the 2013 Protocol
does not contain any commitment on the part of the Kingdom of Morocco to
use the financial contribution paid by the Union for the benefit of the
people of Western Sahara in proportion to the quantities of the catches
taken in the waters adjacent to Western Sahara. On the contrary,
whereas 91.5% of the catches are taken solely in fishing zone No 6
(which covers only the waters adjacent to Western Sahara), only 35% of
the financial contribution (EUR 14 million out of EUR 40 million)
come within the monitoring mechanism established by Article 6 of
the 2013 Protocol.
281. In the second place, there is no
evidence that the EUR 14 million is actually used for the benefit
of the people of Western Sahara. On the contrary, the information
supplied by the Commission shows that of the EUR 160 million
payable over a period of 4 years (2014 to 2018), only EUR 54
million (or 33.75%) was used for the development of the projects, 80% of
which are in Western Sahara.
282. In the third place, the fact that 80%
of the projects that benefit from that EUR 54 million are in
Western Sahara does not in itself mean anything. What matters is the
proportion of that sum of EUR 54 million that is used to fund
projects in Western Sahara, but the Commission has not provided that
information.
283. Last, it should be observed that
Article 49, paragraph 6 of the Fourth Geneva Convention
prohibits the occupying power from 'transfer[ring] parts of its own
civilian population into the territory it occupies'. |264|
However, there is no provision in the Fisheries Agreement or the 2013
Protocol that would require the Kingdom of Morocco to use the part of
the financial contribution corresponding to the fisheries exploitation
of the fishing zones alongside the coasts of Western Sahara in a way
that would benefit, in particular, the 'Saharans originating in the
Territory' |265| or the 'Saharan populations originating in the Territory'. |266|
284. For example, the datasheet for fishing
zone No 6 (industrial pelagic fishing) establishes a requirement to
embark between 2 and 16 'Moroccan seamen' depending on the tonnage of
the Union vessel, |267| although that fishing zone relates exclusively to the waters adjacent to Western Sahara.
285. Consequently, I consider that the
provisions of the Fisheries Agreement and the 2013 Protocol provide no
safeguard that the fisheries exploitation of the waters adjacent to
Western Sahara is done for the benefit of the people of that territory.
In that sense, the contested acts do not comply with either the
principle of permanent sovereignty over natural resources |268|
or Article 55 of the 1907 Hague Regulations, or with the European
Union's obligation not to recognise an illegal situation resulting from a
breach of those provisions and not to render aid or assistance in
maintaining that situation.
286. It follows from the foregoing that, in
that they apply to the territory of Western Sahara and the waters
adjacent thereto, the Fisheries Agreement and the 2013 Protocol are
incompatible with Article 3(5) TEU, the first subparagraph of
Article 21(1) TEU, Article 21(2)(b) and (c) TEU and
Articles 23 TEU and 205 TFEU, which impose on the European Union a
requirement that its external action strictly observe international law.
287. Regulation No 764/2006, Decision
2013/785 and Regulation No 1270/2013 are contrary to
Article 3(5) TEU, the first subparagraph of Article 21(1) TEU,
Article 21(2)(b) and (c) TEU and Articles 23 TEU and 205 TFEU
in that they approve and implement the Fisheries Agreement and the 2013
Protocol in the territory of Western Sahara and the waters adjacent
thereto.
(c) The limitations on the obligation not to recognise an illegal situation
288. In that regard, at the hearing both
Comader and the Commission maintained that the obligation not to
recognise an illegal situation resulting from a breach of rules erga omnes
of international law and of the obligation not to render aid or
assistance in maintaining that situation cannot lead to a prohibition on
concluding international agreements promoting the economic development
of the people of Western Sahara, since such a prohibition would
ultimately operate to the detriment of the people of Western Sahara.
289. They thus rely on paragraph 125 of the Advisory Opinion on Namibia, |269|
where the International Court of Justice had held that 'the
non-recognition of South Africa's administration of the Territory should
not result in depriving the people of Namibia of any advantages derived
from international cooperation'. |270|
290. To my mind, that limitation of the obligation not to recognise illegal situations has no impact in the present case.
291. In the first place, the Commission has
already attempted to use paragraph 125 of the Advisory Opinion on
Namibia to justify the acceptance by the United Kingdom customs
authorities of movement certificates for agricultural products
originating in occupied Cypriot territory which had been issued by the
so-called 'Turkish Republic of Northern Cyprus', an entity not
recognised by the European Union and its Member States. |271|
However, the Court rejected that approach and held that no analogy
could be drawn between the situation in Namibia and the military
occupation that still exists in Northern Cyprus. |272| In my view the same applies in the present situation.
292. In the second place, the limitation of
the obligation not to recognise an illegal situation established by the
International Court of Justice in paragraph 125 of its Advisory
Opinion on Namibia in order not to deprive the people of Namibia of any
advantages derived from international cooperation could not justify the
conclusion of international trade agreements. The conclusion of such
agreements was covered by the obligation not to recognise illegal
situations. |273|
Furthermore, the examples of the advantages from which the people of
Namibia should be able to continue to benefit do not by any means
include international trade agreements. In fact, the examples given by
the International Court of Justice refer to the registration of births,
marriages and deaths, 'the effects of which can be ignored only to the
detriment of the inhabitants of the Territory'. |274|
4. Summary
293. It follows from the foregoing that the
contested acts, which are applicable to the territory of Western Sahara
and the waters adjacent thereto in that they come within the sovereignty
or jurisdiction of the Kingdom of Morocco, breach the European Union's
obligation to respect the right to self-determination of the people of
that territory and its obligation not to recognise an illegal situation
resulting from a breach of that right and not to render aid or
assistance in maintaining that situation. Furthermore, as regards the
exploitation of natural resources of Western Sahara, the contested acts
do not put in place the necessary safeguards in order to ensure that
that exploitation is carried out for the benefit of the people of that
territory.
VI. The Council's request to limit in time the effects of the declaration of invalidity
294. The Council has asked the Court to
'temporarily limit the effects of the declaration of invalidity [of
Regulation No 764/2006, Decision 2013/785 and Regulation
No 1270/2013], so as to enable the Union to take such steps as may
be required in accordance with its obligations under international
law'. |275|
295. Without stating more detailed reasons
for its request, the Council thereby asks that the effects of the
contested acts be maintained for a limited period, as was done, for
example, in the judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C-402/05 P and C-415/05 P, EU:C:2008:461). |276| It should be pointed out, however, that the 2013 Protocol, which forms part of the Fisheries Agreement |277| and is indispensable for its implementation, will expire on 14 July 2018. |278|
As the period between delivery of the judgment in 2018 and the expiry
of that protocol will be particularly short, I am not convinced that it
would make sense for the effects of the contested acts to be maintained.
In any event, the reasons why the effects of the contested act were
maintained for a period of three months in the case that gave rise to
the judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C-402/05 P and C-415/05 P, EU:C:2008:461) |279| are not present in this case.
VII. Conclusion
296. In the light of the foregoing
considerations, I propose that the Court should first of all answer the
fourth question, and then the third question, referred by the High Court
of Justice (England & Wales), Queen's Bench Division
(Administrative Court), United Kingdom, as follows:
(1) (a) In
the context of the judicial review of international agreements
concluded by the European Union and the European Union acts approving or
implementing such agreements, the possibility of relying on the rules
of international law is subject to the following conditions,
independently of whether those rules belong to one or to several sources
of international law: the Union must be bound by the rule relied on,
its content must be unconditional and sufficiently precise and, last,
its nature and its broad logic must not preclude judicial review of the
contested act.
(b) The
principle stated by the International Court of Justice in the Case of
the Monetary Gold Removed from Rome in 1943 that the International Court
of Justice may not exercise its jurisdiction with respect to a State
that is not before the Court without that State's consent is not
applicable to judicial review of international agreements concluded by
the European Union and of acts of the European Union which approve or
implement such agreements.
(2) (a) The
Fisheries Partnership Agreement between the European Community and the
Kingdom of Morocco and the Protocol between the European Union and the
Kingdom of Morocco setting out the fishing opportunities and financial
contribution provided for in that agreement are incompatible with
Article 3(5) TEU, the first subparagraph of Article 21(1) TEU,
Article 21(2)(b) and (c) TEU and Articles 23 TEU and 205 TFEU
in that they apply to the territory of Western Sahara and to the waters
adjacent thereto.
(b) Council
Regulation (EC) No 764/2006 of 22 May 2006 on the conclusion
of the Fisheries Partnership Agreement between the European Community
and the Kingdom of Morocco, Council Decision 2013/785/EU of
16 December 2013 on the conclusion, on behalf of the European
Union, of 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 and Council Regulation (EU)
No 1270/2013 of 15 November 2013 on the allocation of fishing
opportunities under 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 are invalid.
2. OJ
2006 L 141, p. 4. The conclusion of that agreement was
approved by Council Regulation (EC) No 764/2006 of 22 May 2006
on the conclusion of the Fisheries Partnership Agreement between the
European Community and the Kingdom of Morocco (OJ 2006 L 141,
p. 1). [Back]
3. OJ
2013 L 328, p. 2. The conclusion of that protocol was
approved by Council Decision 2013/785/EU of 16 December 2013 on the
conclusion, on behalf of the European Union, of 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 (OJ 2013 L 349, p. 1). [Back]
5. Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, (ICJ Reports 2004, p. 136,
paragraph 41). [Back]
7. See
Article 1(1) of the Protocol setting out the fishing opportunities
and financial contribution provided for in the Fisheries Partnership
Agreement between the European Community and the Kingdom of Morocco (OJ
2006 L 141, p. 9). [Back]
9. See judgment of 19 October 2015 in Western Sahara Campaign UK, R (on the application of) v HM Revenue and Customs
[2015] EWHC 2898 (Admin), paragraph 39. This is the judgment of
the referring court on which it based its request for a preliminary
ruling. [Back]
10. See judgment of 19 October 2015 in Western Sahara Campaign UK, R (on the application of) v HM Revenue and Customs [2015] EWHC 2898 (Admin), paragraphs 40, 43, 48 and 49. [Back]
11. The French Government was granted a one-week extension of the deadline. [Back]
12. Judgment of 30 April 1974, Haegeman (181/73, EU:C:1974:41, paragraph 4). See also, to that effect, judgments of 30 September 1987, Demirel (12/86, EU:C:1987:400, paragraph 7); of 15 June 1999, Andersson and Wåkerås-Andersson (C-321/97, EU:C:1999:307, paragraph 26); and of 25 February 2010, Brita (C-386/08, EU:C:2010:91, paragraph 39). [Back]
13. More recently, see judgment of 28 March 2017, Rosneft (C-72/15, EU:C:2017:236, paragraphs 108 to 117). [Back]
14. See judgment of 9 October 2014, Ahlström and Others (C-565/13, EU:C:2014:2273). [Back]
15. See judgment of 13 December 1989, Grimaldi (C-322/88, EU:C:1989:646, paragraph 8). See also, to that effect, judgments of 11 May 2006, Friesland Coberco Dairy Foods (C-11/05, EU:C:2006:312, paragraph 36), and of 13 June 2017, Florescu and Others (C-258/14, EU:C:2017:448, paragraph 30). [Back]
16. Judgment of 28 March 2017, Rosneft (C-72/15, EU:C:2017:236, paragraph 66 and the case-law cited). Emphasis added. [Back]
17.United Nations Treaty Series, Vol. 1155, p. 331. [Back]
18. See Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017 (EU:C:2017:592, paragraph 67). [Back]
19. Opinion 1/75 (OECD Understanding on a Local Cost Standard) of 11 November 1975 (EU:C:1975:145). [Back]
20. Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017 (EU:C:2017:592, paragraph 70). [Back]
21. See judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C-402/05 P and C-415/05 P, EU:C:2008:461, paragraph 309) and Article 218(11) TFEU. [Back]
22. I
say 'compatibility' and not 'validity' in order to avoid confusion with
the grounds on which a treaty may be declared invalid, which are
exhaustively listed in Articles 46 to 53 of the Vienna Convention
on the Law of Treaties. [Back]
23. See judgment of 9 August 1994, France v Commission
(C-327/91, EU:C:1994:305, paragraphs 13 to 17), where the Court
held that the action for annulment brought by the French Republic should
be directed against the act whereby the Commission had authorised the
conclusion of the international agreement in question rather than
against the agreement itself. [Back]
24. See, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C-402/05 P and C-415/05 P, EU:C:2008:461, paragraph 289), which refers to the judgment of 10 March 1998, Germany v Council (C-122/95, EU:C:1998:94). [Back]
25. See judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C-402/05 P and C-415/05 P, EU:C:2008:461, paragraphs 283, 284, 289, 304, 308, 316 and 326). [Back]
26. See Article 3(5) TEU and judgment of 21 December 2011, Air Transport Association of America and Others (C-366/10, EU:C:2011:864, paragraph 101 and the case-law cited). [Back]
27. See
Etienne, J., 'L'accord de pêche CE-Maroc: quels remèdes juridictionnels
européens à quelle illicéité internationale?', Revue belge de droit international, 2010, pp. 77 to 107, especially pp. 104 and 105. [Back]
28. See, to that effect, judgment of 22 December 2008, Régie Networks (C-333/07, EU:C:2008:764, paragraph 124 and the case-law cited). [Back]
29. See, to that effect, judgments of 14 September 1999, Commission v Belgium (C-170/98, EU:C:1999:411, paragraph 42), and of 4 July 2000, Commission v Portugal (C-84/98, EU:C:2000:359, paragraph 40). [Back]
30. This
procedure provides for the notification of an instrument designed to
declare the Treaty invalid or the decision to withdraw from the Treaty.
If an objection is raised by the other party and the parties are unable
to reach a solution, it is provided that the dispute will be referred to
the International Court of Justice or to an ad hoc arbitral tribunal.
The same applies for the Vienna Convention on the Law of Treaties
between States and International Organisations or between International
Organisations, concluded in Vienna on 21 March 1986, which,
however, has not yet entered into force (see Articles 65 to 68 of
that convention). As international organisations cannot bring a matter
before the International Court of Justice, that convention provides that
the matter may be brought before the Court by means of the advisory
opinion procedure laid down in Article 96 of the Charter of the
United Nations. If the United Nations General Assembly or Security
Council does not grant the request to initiate that procedure, the
dispute may be submitted to arbitration. [Back]
32. As
the International Court of Justice has observed, 'one of the
fundamental principles of its Statute is that it cannot decide a dispute
between States without the consent of those States to its jurisdiction'
(East Timor (Portugal v. Australia), judgment (ICJ Reports 1995,
p. 90, paragraph 26 and the case-law cited)). [Back]
33. See recital 1 and Article 1 of Regulation No 764/2006. [Back]
34. See recital 2 and Article 1 of Decision 2013/785. [Back]
35. See, to that effect, judgment of 21 December 2016, Council v Front Polisario (C-104/16 P, EU:C:2016:973). [Back]
36. See also recital 1 of Regulation No 764/2006. [Back]
37. See Appendix 2 to the Annex to the 2013 Protocol. [Back]
38. See Appendix 4 to the Annex to the 2013 Protocol. [Back]
39. See
Bennafla, K., 'Illusion cartographique au Nord, barrière de sable à
l'Est: les frontières mouvantes du Sahara occidental', L'Espace politique, 2013, paragraph 212, available on the website at http://espacepolitique.revues.org/2644. [Back]
40. According
to the Commission, the catches taken are apportioned among the six
fishing zones established by the Fisheries Agreement and the 2013
Protocol as follows: 1 138 tonnes in fishing zone No 1; 406
tonnes in fishing zone No 2; 191 tonnes in fishing zone No 3;
5 035 tonnes in fishing zone No 4; 234 tonnes in fishing zone
No 5; and 75 686 tonnes in fishing zone No 6. Although
all the tonnage fished does not have the same value, it is clear that
the Fisheries Agreement and the 2013 Protocol apply almost exclusively
to the waters adjacent to Western Sahara. [Back]
41. The
existence of a direct link between the Fisheries Agreement at issue in
the main proceedings and the fisheries agreements concluded between the
Kingdom of Spain and the Kingdom of Morocco is confirmed by the Act
concerning the conditions of accession of the Kingdom of Spain and the
Portuguese Republic and the adjustments to the Treaties (OJ 1985
L 302, p. 23), 'Articles 167(3) and 354(3) of [which], in
so far as they refer to fishing activities, therefore require the
Council to continue the fishing activities in which Spain and Portugal
were engaged on the basis of fisheries agreements concluded by them
before their accession to the [Union]' (judgment of 8 March 1995, HANSA-Fisch v Commission, T-493/93, EU:T:1995:47, paragraph 37). [Back]
42. See
the Agreement on cooperation in sea fisheries between the Government of
the Kingdom of Spain and the Government of the Kingdom of Morocco,
signed in Rabat on 17 February 1977 (which has never entered into
force), and the Protocol on the Transitional Agreement on sea fisheries,
signed in Rabat on 29 June 1979 (BOE No 253 of
22 October 1979, p. 24551), which refer to the fishing zone
south of Cap Noun (which is situated at parallel 29ºN, corresponding to
the base line for fishing zones No 4 and No 6 of the Fisheries
Agreement) and describe that zone as waters under Moroccan jurisdiction
('aguas bajo jurisdicción marroquí'). See also Agreement of
1 August 1983 on cooperation on sea fisheries between the Kingdom
of Spain and the Kingdom of Morocco (BOE No 243 of 11 October
1983, p. 27588), Article 1 of which refers to the waters under
Moroccan jurisdiction ('aguas bajo jurisdicción marroquí').
Annex II to that agreement also distinguishes two fishing zones, one to
the north and one to the south of Cap Noun. The fishing zone to the
south covers the waters adjacent to Western Sahara. [Back]
43. See judgment of 21 December 2016, Council v Front Polisario (C-104/16 P, EU:C:2016:973, paragraph 17). See also order of 30 April 1999, Pescados Congelados Jogamar v Commission
(T-311/97, EU:T:1999:89, paragraph 6), concerning a fishing vessel
belonging to a Spanish shipowner that was intercepted by a Moroccan
patrol boat and diverted to the port of El Aaiun in Western Sahara. [Back]
44. See
dahir for Law No 1-76-468 of 6 August 1976 amending dahir
No 1-59-351 of 2 December 1959 on the administrative division
of the Kingdom, Bulletin officiel du Royaume du Maroc, No 3328, p. 914. [Back]
45. See
Convention on the line of the State border established between the
Islamic Republic of Mauritania and the Kingdom of Morocco, signed in
Rabat on 14 April 1976, Annuaire de l'Afrique du Nord, 1976,
Vol. 15, pp. 848 and 849, and dahir No 1-76-380 of
16 April 1976 ratifying and publishing that convention, Bulletin officiel du Royaume du Maroc, No 3311-bis, p. 499. [Back]
46. See
dahir No 2-79-430 of 14 August 1979 amending and
supplementing Articles 1 and 2 of dahir No 1-59-351 of
2 December 1959 establishing the administrative division of the
Kingdom, Bulletin officiel du Royaume du Maroc, No 3485, p. 489. [Back]
48. According to the Kingdom of the Netherlands, 'the [2013] Protocol does not explicitly refer to ... Western Sahara, but allows for its application
to maritime areas adjacent to ... Western Sahara that are not under the
sovereignty or jurisdiction of [the Kingdom of] Morocco'. See Statement
by the Kingdom of the Netherlands in Council document 15723/13 ADD 1 of
14 November 2013, available on the Council's website at
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2015723%202013%20ADD%201.
Emphasis added. [Back]
50. See paragraphs 48, 74, 84 and 102 of the judgment of 21 December 2011, Air Transport Association of America and Others
(C-366/10, EU:C:2011:864), where the Court refers to the 'legality',
the 'invalid[ity]' or the 'validity of an act of the European Union, such as Directive 2008/101'. Emphasis added. [Back]
51. See paragraphs 23 and 24 of its answers to the written questions put by the Court. [Back]
52. See,
to that effect, the distinction drawn between the review of the
validity of international agreements concluded by the Union (including
in the light of international law, to which Article 3(5) TEU
refers) and review of the validity of the internal acts of the Union in
the light of international law in Lenaerts, K., Maselis, I., and
Gutman, K., EU Procedural Law, Oxford University Press, Oxford, 2014, §§ 10.05 and 10.08. [Back]
53. See Articles 3 to 6 of the Charter of the United Nations. [Back]
54. For the concept of obligations erga omnes,
see the Advisory Opinion of 9 July 2004 on the Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory (ICJ
Reports 2004, p. 136, paragraph 155). That concept was also
recognised by the Court in paragraph 88 of the judgment of
21 December 2016, Council v Front Polisario (C-104/16 P, EU:C:2016:973). [Back]
55. Opinion 2/15 (EU-Singapore Free Trade Agreement) of 16 May 2017 (EU:C:2017:376, paragraph 298 and the case-law cited). [Back]
56. See, to that effect, order of 30 April 1999, Pescados Congelados Jogamar v Commission
(T-311/97, EU:T:1999:89, paragraph 12): 'By letter of 29 July
1997, and at a meeting which took place on the same day between
Mr Gallimore, Chargé d'Affaires at the Delegation, and
Mr Rhanmi, Secretary-General with the Moroccan Fisheries Ministry,
the [EU] authorities requested an extraordinary session of the Joint
Committee set up under Article 10 of the [1996 EU-Morocco
Fisheries] Agreement. That request was repeated on several occasions, but consistently refused, since the Moroccan authorities took the view that the Agreement had not been infringed'. Emphasis added. [Back]
57. Article 3(5)
TEU. Emphasis added. See also the first subparagraph of
Article 21(1) TEU, Article 21(2)(b) and (c) TEU and
Articles 23 TEU and 205 TFEU. The Court has held that,
far from being programmatic, those provisions require, inter alia,
compliance with human rights and international law on the part 'of all
actions of the European Union, including those in the area of the CFSP'
(see judgment of 14 June 2016, Parliament v Council, C-263/14, EU:C:2016:435, paragraph 47). [Back]
58. Judgment of 9 August 1994, France v Commission (C-327/91, EU:C:1994:305, paragraph 16). [Back]
59. See
Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo, Advisory Opinion (ICJ Reports 2010,
p. 403, paragraph 79). [Back]
60. For
a more flexible reading of that condition, but one that is not really
supported by the wording of paragraph 107 of that judgment, see
Lenaerts, K., 'Direct applicability and direct effect of international
law in the EU legal order', published in Govaere, I., Lannon, E., van
Elsuwege, P., and Adam, S., (eds), The European Union in the World:Essays in Honour of Marc Maresceau, Brill, Leiden, 2013, pp. 45 to 64, especially p. 61. [Back]
61. The
criterion seems to be very similar to that of the standing and interest
in bringing an action, which, in the context of a reference for a
preliminary ruling, should in my view be assessed only by reference to
national law. [Back]
62. Judgment of 21 December 2011, Air Transport Association of America and Others (C-366/10, EU:C:2011:864, paragraph 110). [Back]
63. Judgment of 21 December 2011, Air Transport Association of America and Others (C-366/10, EU:C:2011:864), paragraph 110). [Back]
64. Judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission
(C-402/05 P and C-415/05 P, EU:C:2008:461, paragraph 283
and the case-law cited). Emphasis added. The fact that the Charter of
Fundamental Rights of the European Union became mandatory in 2009 does
not preclude the relevance of the reference to the international
instruments binding on all Member States. [Back]
65.United Nations Treaty Series, Vol. 993, p. 3. [Back]
66.United Nations Treaty Series, Vol. 999, p. 171. [Back]
68. See
paragraph 1 of the Declaration on the Granting of Independence to
Colonial Countries and Peoples, adopted by United Nations General
Assembly Resolution 1514 (XV) of 20 December 1960; Opinion
No 2 of the Arbitration Commission of the European Peace Conference
on Yugoslavia (composed of Robert Badinter, President of the Conseil
constitutionnel (Constitutional Council of France), Roman Herzog,
President of the Bundesverfassungsgericht (Federal Constitutional Court
of Germany), Aldo Corasaniti, President of the Corte costituzionale
(Constitutional Court of Italy), Francisco Tomás y Valiente, President
of the Tribunal Constitucional (Constitutional Court of Spain) and
Ms Irène Pétry (President of the Cour d'arbitrage (Arbitration
Court, Belgium)), 1993, International Law Reports, Vol. 92,
pp. 168 and 169, paragraphs 2 and 3; Gros-Espiell, H., 'Le
droit à l'autodétermination – Application des résolutions de
l'ONU', 1980, E/CN.4/Sub.2/405/Rev. 1., paragraph 57;
Doehring, K., 'Self-Determination', published in Simma, B. (ed.), The Charter of the United Nations:A Commentary, 2nd
ed., Oxford University Press, Oxford, 2002, Vol. 1, pp. 48
to 53; Dobelle, J.-F., 'Article 1, paragraphe 2', published in
Cot, J.-P., Pellet, A., and Forteau, M., La Charte des Nations unies:commentaire article par article, 3rd ed., Economica, Paris, 2005, pp. 337 to 356, especially pp. 340 to 341; Dinstein, Y., The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, p. 51; Saxer, U., Die international Steuerung der Selbstbestimmung und der Staatssentstehung,
Springer, Heidelberg, 2010, pp. 238 to 249; Oeter, S.,
'Self-Determination', published in Simma, B., Khan, D.-E., Nolte,
G., and Paulus, A. (eds), The Charter of the United Nations:A Commentary, 3rd
ed., Oxford University Press, Oxford, 2012, Vol. I, pp. 313
to 333, especially p. 322; Crawford, J., 'Third Party Obligations
with respect to Israeli Settlements in the Occupied Palestinian
Territories', legal opinion of 24 January 2012, paragraph 26,
available on the website at
https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf. [Back]
69. Footnote not relevant to the English translation. [Back]
70. See
Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo, Advisory Opinion (ICJ Reports 2010,
p. 403, paragraph 79 and the case-law cited). [Back]
71. See
Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo, Advisory Opinion (ICJ Reports 2010,
p. 403, paragraph 79). [Back]
72. See
East Timor (Portugal v. Australia), judgment (ICJ Reports 1995,
p. 90, paragraph 29, and Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion (ICJ Reports 2004, p. 136, paragraphs 88 and 156). [Back]
73. See,
for example, Article 1(2) of the Charter of the United Nations and
Article 1 common to the ICESCR and the ICCPR. [Back]
76. 'The
Purposes of the United Nations are: ... to develop friendly relations
among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; ...' Emphasis added. [Back]
77. Emphasis
added. The use of the participle 'bound' is significant, since the
Union is not a party to the Charter of the United Nations. [Back]
78. See Title VIII, entitled 'Equal rights and self-determination of peoples'. [Back]
79. See
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraphs 121 and 122). [Back]
80. See
Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo, Advisory Opinion (ICJ Reports 2010,
p. 403, paragraph 79 and the case-law cited). [Back]
81. See
points 102 to 103 of this Opinion and also Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion (ICJ Reports 2004, p. 136, paragraph 88). [Back]
82. See
Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion (ICJ Reports 1971, p. 16,
paragraph 52); Western Sahara, Advisory Opinion (ICJ Reports 1975,
p. 12, paragraphs 55 to 58); and Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion (ICJ Reports 2004, p. 136, paragraph 88). See also, to
that effect, Oeter, S., 'Self-Determination,' published in Simma, B.,
Khan, D.-E., Nolte, G., and Paulus, A. (eds), The Charter of the United Nations:A Commentary, 3rd
ed., Oxford University Press, Oxford, 2012, Vol. I, pp. 313
to 333, especially pp. 320 and 321; and Dobelle, J.-F.,
'Article 1, paragraphe 2', published in Cot, J.-P., Pellet,
A., and Forteau, M., La Charte des Nations unies:commentaire article par article, 3rd ed., Economica, Paris, 2005, pp. 337 to 356. [Back]
83. See also, to that effect, judgment of 21 December 2016, Council v Front Polisario (C-104/16 P, EU:C:2016:973, paragraphs 90 to 92). [Back]
84. See
Western Sahara, Advisory Opinion (ICJ Reports 1975, p. 12) and
judgment of 21 December 2016, Council v Front Polisario (C-104/16 P, EU:C:2016:973). [Back]
85. See
East Timor (Portugal v. Australia), judgment (ICJ Reports 1995,
p. 90, paragraph 29), and Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion (ICJ Reports 2004, p. 136, paragraphs 88 and 156). [Back]
86. Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraph 155). See also, to that effect, Barcelona Traction, Light
and Power Company, Limited, Second Phase, judgment (ICJ Reports 1970,
p. 32, paragraph 33). [Back]
87. Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraph 159). To my mind that 'non-recognition' obligation is in
itself a principle of international law that satisfies the criteria
applicable to the possibility of relying on particular rules set out in
point 96 of this Opinion. [Back]
88. See
judgment of 25 June 1985 No 1981 de la Corte suprema di
cassazione (Court of Cassation, Italy) in the Case of Yasser Arafat, Rivista di Diritto Internazionale,
1986, pp. 885 to 889; order of 26 October 2004 of the
Bundesverfassungsgericht (Federal Constitutional Court, Germany), 2 BvR
955/00, 1038/01, paragraph 97; Separate Opinion of Vice-President
Ammoun, Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion (ICJ Reports 1971, p. 16,
pp. 77 and 78); International Law Commission, 'Draft articles on
the Law of Treaties with comments', Yearbook of the International Law Commission,
1966, Vol. II, p. 248 [p. 270 in the French version];
International Law Commission, 'Draft articles on responsibility of
States for internationally wrong acts with commentary', Yearbook of the International Law Commission,
2001, Vol. II, Part Two, p. 85 [p. 91 in the French version];
point 3.2 of the Written Statement of the Kingdom of the
Netherlands, Accordance with International Law of the Unilateral
Declaration of Independence in respect of Kosovo, Advisory Opinion (ICJ
Reports 2010, p. 403); Cassese, A., Self-Determination of Peoples:ALegal Reappraisal, Cambridge University Press, Cambridge, 2005, pp. 133 and 136; Raič, D., Statehood and the Law of Self-Determination,
Kluwer Law International, Alphen an den Rijn, 2012, pp. 218 and
219; Oeter, S., 'Self-Determination', published in Simma, B., Khan,
D.-E., Nolte, G., and Paulus, A. (eds), The Charter of the United Nations:A Commentary, 3rd ed., Oxford University Press, Oxford, 2012, Vol. I, pp. 313 to 333, p. 316. [Back]
89. See ICJ Pleadings, Western Sahara, Vol. I, p. 207, paragraph 344. [Back]
90. See
ICJ Pleadings, Western Sahara, Vol. V, p. 179. The Kingdom of
Morocco stressed the integrity of its territory as a basis for claiming
the territory of Western Sahara, but the International Court of Justice
rejected its argument and held that the people of Western Sahara fully
enjoyed their right to self-determination. [Back]
91. The
case-law of the International Court of Justice cited in point 127
of this Opinion also refers to the obligation imposed on States to
ensure that impediments to the exercise of the right of a people to
self-determination are removed. There is no need to refer to that
case-law here. [Back]
92. See United Nations General Assembly Resolution 1803 (XVII). [Back]
93. See
Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), judgment (ICJ Reports 2005, p. 168,
paragraph 244). [Back]
98. See
paragraphs 27, 44.1 and 47.4 of the request for a preliminary
ruling and paragraphs 40, 43, 48 and 49 of the judgment of
19 October 2015 in the case of Western Sahara Campaign UK, R (on the application of) v HM Revenue and Customs [2015] EWHC 2898 (Admin). [Back]
104. See, to that effect, judgment of 9 October 2014, Ahlström and Others (C-565/13, EU:C:2014:2273, paragraph 33). [Back]
105. See
Article 1, common to the ICESCR and the ICCPR, paragraph 2 of
United Nations General Assembly Resolution 1514 (XV) and Title VII of
the Helsinki Final Act of 1975. [Back]
106. See
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraph 159). [Back]
107. For
a full account of the facts, see 'Report of the Special Committee on
the Situation with regard to the Implementation of the Declaration on
the Granting of Independence to Colonial Countries and Peoples'
(A/31/23/Rev.1), Official Documents of the General Assembly,
1977, Vol. II, pp. 203 to 225; 'Report of the Special
Committee on the Situation with regard to the Implementation of the
Declaration on the Granting of Independence to Colonial Countries and
Peoples' (A/31/23/Rev.1), Official Documents of the General Assembly, 1980, Vol. II, pp. 105 to 117. [Back]
108. See paragraphs 12 to 18 of the judgment of 19 October 2015 in Western Sahara Campaign UK, R (on the application of) v HM Revenue and Customs [2015] EWHC 2898 (Admin). [Back]
109. The
idea of a referendum was not enthusiastically received by the Kingdom
of Morocco. In a private discussion with Mr Kissinger, the
Secretary of State of the United States of America, the King of Morocco,
Hassan II, told him: 'I told [the Spanish Minister for Foreign Affairs]
that I agree that Spain remains, but I do not agree in [Western] Sahara
becoming independent. I prefer the Spanish presence to
self-determination for 30 000 people'. Mr Kissinger replied:
'[The Algerian President] asked me yesterday what I thought about that
and I said self-determination for 30-40 000 persons who do not even
know where they live?' See Memorandum of Conversation (Rabat, 15
October, 1.15 p.m.), published in Burton, M.F., Foreign Relations of the United States, 1969-1976,
United States Government Printing Office, Washington, 2014,
Vol. E-9, Part 1 (Documents on North Africa, 1973-1976),
pp. 258 to 261, especially p. 258. [Back]
110. See
Report of 10 October 1975 of the United Nations Visiting Mission
to Spanish Sahara, published in the 'Report of the Special Committee on
the Situation with regard to the Implementation of the Declaration on
the Granting of Independence to Colonial Countries and Peoples'
(A/10023/Rev.1), Official documents of the General Assembly, 1977, Vol. III, pp. 12 to 133, paragraph 229. [Back]
111. See Western Sahara, Advisory Opinion (ICJ Reports 1975, p. 12, paragraph 162). [Back]
112. See Western Sahara, Advisory Opinion (ICJ Reports 1975, p. 12, paragraph 162). [Back]
113. See paragraph 30 of the judgment of 21 December 2016, Council v Front Polisario (C-104/16 P, EU:C:2016:973). [Back]
114. See United Nations Security Council Resolution 379 (1975) of 2 November 1975. [Back]
115. Established
in 1967 by the Spanish administration, the Yema'a was an advisory body
composed of 103 members, including the mayors of large towns, 40 tribal
chiefs (sheiks), 40 representatives of family groups and 16
representatives of professional groups. See Report of 10 October
1975 of the United Nations Visiting Mission to Spanish Sahara, published
in the 'Report of the Special Committee on the Situation with regard to
the Implementation of the Declaration on the Granting of Independence
to Colonial Countries and Peoples' (A/10023/Rev.1), Official Documents of the General Assembly, 1977, Vol. III, pp. 12 to 133, paragraphs 126 to 142. [Back]
116. See
report of 8 November 1975 by the Secretary-General in application
of Resolution 379 (1975) on the situation concerning Western Sahara
(S/11874), paragraph 17. See also record of the 1954th Meeting of the Security Council on 6 November 1975 (S/PV.1854), paragraphs 47 and 48. [Back]
117.United Nations Treaty Series,Vol. 988, p. 259. [Back]
118. Under
the terms of these agreements, the Spanish, Moroccan and Mauritanian
delegations agreed to recognise fishing rights in the waters adjacent to
Western Sahara in favour of 800 Spanish vessels for a period of 20
years on the same conditions as those existing on 14 November 1975.
See Cortes, Diario de sesiones del Congreso de los diputados, 1978,
No 15, p. 498 (speech by Mr Manuel Marín González, a
Partido Socialista Obrero Español deputy, subsequently Vice-President
and Acting President of the European Commission). See also, to that
effect, Dessaints, J., 'Chronique politique Maroc', Annuaire de l'Afrique du Nord, 1975, Vol. 14, pp. 457 to 476, especially p. 463; Alemany Torres, F., 'Acuerdo de pesca con Marruecos', El País, 8 February 1978. [Back]
119. See
Cortes, Diario de sesiones del Congreso de los diputados, 1978,
No 15, pp. 522 and 546. [Back]
120. See Cortes, Diario de sesiones del Congreso de los diputados, 1978, No 15, p. 546. [Back]
121. See
cable 1975MADRID08029 of 15 November 1975 from Ambassador
W. Stabler to Secretary of State H. Kissinger ('[Minister]
Herrera [Esteban] also stated that "framework agreements" had been
worked out with Morocco and Mauritania on other related issues: ... and
fishing rights'); cable 1975STATE276309 of 21 November 1975 from
Secretary of State H. Kissinger to the Permanent Mission of the
United States of America to the United Nations ('[according to the
Moroccan Ambassador, Mr Abdelhadi Boutaleb, a] copy of agreement to
be deposited by signatories with [United Nations] Secretary-General
K. Waldheim but version to be left with UNSYG will not [repeat] not
include subsidiary agreements providing for fishing rights for Spain in
[Western] Saharan waters and 35[%] Spanish participation in phosphate
mines'). The diplomatic cables are available on the website at
https://wikileaks.org/. [Back]
122. See
'Document historique d'El Guelta (Sahara occidental) signé le
28 November 1975 par 67 membres de l'Assemblée générale sahraouie, 3
membres sahraouis des Cortes (Parliament espagnol), les représentants
des autres membres de la [Yema'a] et par plus de 60 Chioukhs et notables
des tribus sahraouies', (historic document of El Guelta (Western
Sahara) signed on 28 November 1975 by 67 members of the Saharan
General Assembly, 3 Saharan members of the Cortes (Spanish Parliament),
the representatives of other members of the Yema'a and more than 60
sheikhs and notables of the Saharan tribes) annexed to the letter of
9 December 1975, sent to the United Nations Secretary-General by
the Permanent Representative of Algeria to the United Nations (S/11902). [Back]
123. See Resolutions 3458 A and B (XXX) of 10 December 1975. [Back]
128. The then nine Member States plus the Kingdom of Spain and the Republic of Malta. [Back]
129. The
Republic of Bulgaria, the Republic of Cyprus, the Republic of Poland,
the Czech Republic and the Slovak Republic, which at the time composed
Czechoslovakia, and the Slovenian Republic and the Republic of Croatia
(as Federal States of Yugoslavia) and Estonia, the Republic of Latvia
and the Republic of Lithuania (as Federal States of the USSR). [Back]
130. The
Hellenic Republic, Hungary, the Republic of Austria, the Portuguese
Republic, Finland and the Kingdom of Sweden. [Back]
136. See
'Report of the Special Committee on the Situation with regard to the
Implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples' (A/31/23/Rev.1), Official Documents of the General Assembly, 1977, Vol. II, pp. 203 to 225, paragraph 44; Dessaints, J., 'Chronique politique Maroc', Annuaire de l'Afrique du Nord,1975, Vol. 14, pp. 457 to 476, especially p. 464. [Back]
137. See Keesing's Record of World Events, 13 February 1976, p. 27746. [Back]
138. 'Report
of the Special Committee on the Situation with regard to the
Implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples' (A/31/23/Rev.1), Official Documents of the General Assembly, 1977, Vol. II, pp. 203 to 225, paragraph 45. [Back]
139. That
is not wholly accurate. The Kingdom of Spain continues to administer
the air space of Western Sahara, which is part of the 'OCE' of the
Canary Isles Flight Information Region (FIR). See maps published on the
website of Enaire
(http://www.enaire.es/csee/ccurl/130/603/fir_canarias.swf). [Back]
140. Letter
dated 26 February 1976, addressed to the Secretary-General by the
Permanent Representative of Spain to the United Nations (S/11997). [Back]
141. The motion of 27 February 1976 voted by the Yema'a, Annuaire de l'Afrique du Nord,
1976, Vol. 15, pp. 847 and 848. By his message to the United
Nations Secretary-General, Mr Khatri Ould Said a Ould El Jomaini,
President of the Yema'a, informed him that 'the Saharan Yema'a, meeting
in special session today, Thursday 26 February 1976, in El Aaiun,
has unanimously approved the reintegration of the Territory of the
Sahara with Morocco and Mauritania, in conformity with the historical
realities and with the links which have always united the Saharan
population to these two countries'. See 'Report of the Special Committee
on the Situation with regard to the Implementation of the Declaration
on the Granting of Independence to Colonial Countries and Peoples'
(A/31/23/Rev.1), Official Documents of the General Assembly, 1977, Vol. II, pp. 203 to 225, paragraph 51. [Back]
142. According
to the United States Secretary of State, Mr Cyrus Vance, 'Waldheim
told me that ... King Hassan considers that the problem has been resolved
and that the self-determination criterion has been satisfied by
consultation of the [Saharawi] Assembly, However, neither Spain nor
Algeria accepts it, pointing out that [King] Hassan has consulted only a
rump assembly consisting of Moroccan stooges'. See telegram from
Secretary of State Vance to the United States Embassy in Morocco, dated
20 May 1977, published in Burton, M.F., Foreign Relations of the United States, 1977-1980,
United States Government Printing Office, Washington, 2017,
Vol. XVII, Part 3 (Documents on North Africa), pp. 507 and
508, especially p. 508. [Back]
143. The
same question was again asked in the Spanish Parliament in the debate
on the ratification of the 1977 Fisheries Agreement between the Kingdom
of Spain and the Kingdom of Morocco, during which the Minister for
Foreign Affairs of the Kingdom of Spain, Mr Oreja Aguirre, stated
that Spain did not recognise the sovereignty of the Kingdom of Morocco
over Western Sahara and that the process of decolonisation of Western
Sahara would not be complete until the time when the original people of
that territory exercised its right to self-determination in accordance
with United Nations General Assembly Resolution 1514 (XV). See Cortes,
Diario de sesiones del Congreso de los diputados, 1978, No 15,
pp. 522 and 523. See also, to that effect, 'Contestación del
Gobierno a la pregunta formulada por don Gregorio López Raimundo, del
Grupo Parlamentario Mixto, sobre política española hacia el Sáhara', Boletín Oficial de las Cortes Generales, Series D, 23 September 1983, pp. 223 and 224. [Back]
144. 'Report
of the Special Committee on the Situation with regard to the
Implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples' (A/31/23/Rev.1), Official Documents of the General Assembly, 1977, Vol. II, pp. 203 to 225, paragraph 46. [Back]
145. See
Convention relative au tracé de la frontière d'État établie entre la
République islamique de Mauritanie et le Royaume du Maroc, signed at
Rabat on 14 April 1976, Annuaire de l'Afrique du Nord, 1976, Vol. 15, pp. 848 and 849. [Back]
146. See
point 73 of this Opinion and the documents cited. On 14 April
1976, the Kingdom of Morocco and the Islamic Republic of Mauritania
signed the Cooperation Agreement for the development of the recovered
Saharan territories (Annuaire de l'Afrique du Nord, 1976,
Vol. 15, pp. 849 and 850), which provided for participation by
the Islamic Republic of Mauritania in the capital of the Société Fos
Bucraâ (which exploited the phosphates of Western Sahara) and
cooperation in the fishing sector. [Back]
147. See
letter dated 23 May 1979, addressed by the Acting Chargé
d'Affaires of the Permanent Mission of Mauritania to the United Nations
to the United Nations Secretary-General (A/34/276). [Back]
148. 'Report
of the Special Committee on the Situation with regard to the
Implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples' (A/34/23/Rev.1), Official Documents of the General Assembly,
1977, Vol. II, pp. 105 to 117, paragraph 32. According
to this report, 'King Hassan II stated that "any peace solution must not
... lead to the insertion of a foreign State between Morocco and
Mauritania"' (paragraph 32). [Back]
149. See
Mauritano-Sahraoui Agreement, signed at Algiers on 10 August 1979,
annexed to the letter dated 18 August 1979 from the Permanent
Representative of Mauritania to the United Nations to the United Nations
Secretary-General (A/34/427). [Back]
150. See Hodges, T., 'The Western Sahara', Chicago Review Press, Chicago, 1984, p. 12. [Back]
151. See point 73 of this Opinion and the documents cited. [Back]
152. Eighty-five
States voted for, 6 against, 41 abstained and 20 did not vote. The
current Member States of the European Union voted for or abstained. See
also, to that effect, paragraph 3 of United Nations General
Assembly Resolution 35/19 (88 States voted for, 8 against, 43 abstained
and 15 did not vote). [Back]
153. See
United Nations Security Council Resolution 621 (1988) of
20 September 1988 and United Nations General Assembly Resolution
43/33 of 22 November 1988. [Back]
154. Report
of 10 April 2017 of the United Nations Secretary-General on the
situation concerning Western Sahara (S/2017/307), paragraph 82. [Back]
155. I
note with interest that, after leaving office, the Netherlands
Ambassador, Mr Peter van Walsum, United Nations Special Envoy for
Western Sahara (2005-2008) acknowledged that 'on the basis of the
International Court of Justice's advisory opinion, [Front] Polisario has
the stronger case under international law'. See van Walsum, P.,
'The question of Western Sahara', 16 December 2012, and 'The
question of Western Sahara (II)', 7 February 2013, published on his
website at
http://www.petervanwalsum.com/the-question-of-western-sahara/. [Back]
156. See Principle VI of United Nations General Assembly Resolution 1541 (XV). [Back]
157. See
paragraphs 3 and 4 of United Nations General Assembly Resolution
1514 (XV); Bedjaoui, M., 'Article 73', published in Cot, J.-P.,
Pellet, A., and Forteau, M., La Charte des Nations unies:commentaire article par article, 3rd
ed., Economica, Paris, 2005, pp. 1751 to 1767, especially
p. 1761; Fastenrath, U., 'Chapter XI Declaration Regarding
Non-self-governing Territories', published in Simma, B., Khan, D.-E.,
Nolte, G., and Paulus, A. (eds), The Charter of the United Nations:A Commentary, 3rd ed., Oxford University Press, Oxford, 2012, Vol. II, pp. 1829 to 1839, especially pp. 1834 and 1835. [Back]
158. See
United Nations Security Council Resolution 2351 (2017), which
'recall[s] and reaffirm[s] all its previous resolutions on Western
Sahara' and 'decides to extend the mandate of the [United Nations
Mission for the Referendum in Western Sahara] (Minurso)'. See also, to
that effect, United Nations General Assembly Resolution 2229 (XXI) of
20 December 1966, paragraphs 4 and 5; United Nations Security
Council Resolution 621 (1988) of 20 September 1988,
paragraph 2; and United Nations General Assembly Resolution 43/33
of 22 November 1988. [Back]
160. See
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraph 159). [Back]
161. Case
of SS Wimbledon (United Kingdom and Others v. Germany), judgment of
17 August 1923 (PCIJ Series A, No 1, p. 25). [Back]
162. Maritime
Delimitation and Territorial Questions between Qatar and Bahrain,
Merits, judgment (ICJ Reports 2001, p. 40, paragraph 185). See
also, to that effect, North Sea Continental Shelf, judgment (ICJ
Reports 1969, p. 3, paragraph 96); Aegean Sea Continental
Shelf, judgment (ICJ Reports 1978, p. 3, paragraph 86);
Maritime Delimitation in the Black Sea (Romania v. Ukraine), judgment
(ICJ Reports 2009, p. 61, paragraph 77); and Territorial and
Maritime Dispute (Nicaragua v. Colombia), judgment (ICJ Reports 2012,
p. 624, paragraph 140). [Back]
163. Territorial
and Maritime Dispute (Nicaragua v. Colombia), judgment (ICJ Reports
2012, p. 624, paragraph 140 and the case-law cited). [Back]
164. See, to that effect, point 73 of this Opinion and the Moroccan legislation cited. [Back]
166. In
the meaning which that expression has in the context of the exercise of
the right of self-determination. See Principles VI, VIII and IX of the
Principles which should guide United Nations Member States in
determining whether or not an obligation exists to transmit the
information called for under Article 73(e) of the Charter of the
United Nations, approved by United Nations General Assembly Resolution
1541 (XV) (see points 117 and 118 of this Opinion). [Back]
167. See
East Timor (Portugal v. Australia), judgment (ICJ Reports 1995,
p. 90, paragraph 17) (emphasis added). See also
paragraph 69 of the defence of the Commonwealth of Australia lodged
in that case. The International Court of Justice did not adjudicate on
the merits of that case, being of the view that the absence from the
dispute of the Republic of Indonesia did not allow it to exercise its
jurisdiction. [Back]
168. See
Western Sahara, Advisory Opinion (ICJ Reports 1975, p. 12,
paragraphs 108 to 127 and, in particular, paragraphs 109, 110,
113 and 121). [Back]
169. See
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraphs 121 and 122). [Back]
171. Article 11 of the Fisheries Agreement. [Back]
172. See
Cortes, Diario de sesiones del Congreso de los diputados, 1978,
No 15, pp. 523, 546 and 547 (speech by Mr Oreja Aguirre,
Minister for Foreign Affairs) on the Agreement on cooperation with the
sea fisheries sector between the Government of the Kingdom of Morocco
and the Government of the Kingdom of Spain, signed at Rabat on
17 February 1977, and 'Contestación del Gobierno a la pregunta
formulada por don Gregorio López Raimundo, del Grupo Parlamentario
Mixto, sobre política española hacia el Sáhara', Boletín Oficial de las Cortes Generales,
Series D, 23 September 1983, p. 224, on all the fisheries
agreements concluded up to that time between the Kingdom of Spain and
the Kingdom of Morocco. [Back]
173.United Nations Treaty Series, Vol. 1834, p. 3. [Back]
174. See Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L 179, p. 1). [Back]
175. See
Article 311(1) of the UNCLOS. The Geneva Conventions on the
Law of the Sea are the Convention on the Territorial Sea and the
Contiguous Sea, done at Geneva on 29 April 1958 (United Nations Treaty Series, Vol. 516, p. 205), the Convention on the High Seas, done at Geneva on 29 April 1958 (United Nations Treaty Series,
Vol. 450, p. 11), the Convention on Fishing and Conservation
of the Living Resources of the High Seas, done at Geneva on
29 April 1958 (United Nations Treaty Series, Vol. 559, p. 258) and the Convention on the Continental Shelf, done at Geneva on 29 April 1958 (United Nations Treaty Series,Vol. 499, p. 311). [Back]
176. 'Having regard to the United Nations Convention on the Law of the Sea.' [Back]
177. See
Article 2(1) of the UNCLOS, which states that 'the sovereignty of a
coastal State extends, beyond its land territory and internal waters
and, in the case of an archipelagic State, its archipelagic waters, to
an adjacent belt of sea, described as the territorial sea'. [Back]
178. See
Article 55 of the UNCLOS, which states that 'the [EEZ] is an area
beyond and adjacent to the territorial sea, subject to the specific
legal regime established in [Articles 55 to 75 of that Convention],
under which the rights and jurisdiction of the coastal State and
the rights and freedoms of other States are governed by the relevant
provisions of this Convention'. Emphasis added. [Back]
179. See
Articles 8 and 9 of dahir No 1-81-179 of 8 April 1981
promulgating Law No 1-81 establishing an exclusive economic zone of
200 nautical miles along the Moroccan coasts, Bulletin officiel du Royaume du Maroc,
No 3575, p. 232, and Article 4 of Decree
No 2-75-311 of 21 July 1975 determining the closing lines of
bays on the Moroccan coasts and the geographic coordinates of the limit
of the Moroccan territorial waters and the exclusive fishing zone, Bulletin officiel du Royaume du Maroc,
No 3276, p. 996. According to those provisions, the Moroccan
EEZ does not extend south of Cape Juby/Pointe Stafford, which
corresponds to the border between the Kingdom of Morocco and Western
Sahara. [Back]
180. See 'Domaine maritime: Le Conseil de gouvernement adopte deux projets de lois', Huffington Post Maroc,
7 July 2017, and available on the website at
http://www.huffpostmaghreb.com/2017/07/07/loi-domaine-maritime-_n_17422798.html.
According to the Minister for Foreign Affairs and International
Cooperation of the Kingdom of Morocco, the creation of an EEZ along the
coasts of Western Sahara was necessary in order to 'cement the legal
supervision of Morocco over those waters and to bar the route to all
allegations challenging Morocco's sovereignty over that area'. [Back]
181. See Article 5(4) of the Fisheries Agreement. [Back]
183. In
that sense, I do not understand why the European Union pays the Kingdom
of Morocco several million euros per year by way of financial
contribution in order to be able to fish in the waters adjacent to
Western Sahara over which the Kingdom of Morocco has not established a
maritime zone, or of course an EEZ, when the instruments which it has
deposited with the United Nations in accordance with Article 75(2)
of the UNCLOS do not include the waters adjacent to Western Sahara in
the Moroccan maritime zones. [Back]
184. See Article 56(1)(a) of the UNCLOS ('in the [EEZ], the coastal State has ... sovereign
rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the
waters superjacent to the seabed and of the seabed and its subsoil ...').
Emphasis added. [Back]
185. See,
for example, Article 5(4) of the Fisheries Partnership Agreement
between the European Community and the Republic of the Seychelles (OJ
2006 L 290, p. 2); Article 2(a) and Article 11 of
the Fisheries Partnership Agreement between the European Community and
the Islamic Republic of Mauritania (OJ 2006 L 343, p. 4);
Article 2(a) and Article 11 of the Fisheries Partnership
Agreement between the European Community and the Republic of
Guinea-Bissau for the period 16 June 2007 to 15 June 2011 (OJ
2007 L 342, p. 5); Article 2(c) of the Fisheries
Partnership Agreement between the Republic of Côte d'Ivoire and the
European Community (OJ 2008 L 48, p. 41); and
Article 1(f) of the Sustainable Fisheries Partnership Agreement
between the European Union and the Republic of Senegal (OJ 2014
L 304, p. 3). [Back]
186. See
Article 7 of the Fisheries Agreement and Article 3(1), (4)
and (5) and Article 6 of the 2013 Protocol. Those provisions do not
ensure that the financial contribution benefits the people of Western
Sahara in proportion to the quantities of catches taken in the waters
adjacent to Western Sahara. See points 271 to 285 of this Opinion. [Back]
187. See
Milano, E., 'The New Fisheries Partnership Agreement between the EC and
Morocco: Fishing too South?', Anuario español de derecho internacional,
2006, Vol. 22, pp. 413 to 457, especially pp. 442 to
447, and Dawidowicz, M., 'Trading Fish or Human Rights in Western
Sahara? Self-Determination, Non-Recognition and the EC-Morocco Fisheries
Agreement', published in French, D. (ed.), Statehood, Self-Determination and Minorities: Reconciling Tradition and Modernity in International Law, Cambridge University Press, Cambridge, 2013, pp. 250 to 276. [Back]
188. The
referring court shares that assessment. So do HMRC and the Secretary of
State. See paragraphs 27 and 44.1, 47.4 of the decision making the
request for a preliminary ruling and paragraphs 40, 43, 48 and 49
of the judgment of 19 October 2015 in Western Sahara Campaign UK, R (on the application of) v HM Revenue and Customs
[2015] EWHC 2898 (Admin). The Commission does not rule out the
possibility that the Kingdom of Morocco might be regarded as an
occupying power in Western Sahara. See paragraph 43 of its answers
to the written questions put by the Court. [Back]
189. See
point 192 of this Opinion. See Milano, E., 'The New Fisheries
Partnership Agreement between the EC and Morocco: Fishing too South?', Anuario español de derecho internacional, 2006, Vol. 22, pp. 413 to 457, especially p. 430. [Back]
190. OJ
2011 C 286 E, p. 1. In the words of that answer, 'according
to the United Nations position on the subject, which the EU adheres to,
Western Sahara is considered a "non-self-governing territory" and
Morocco its de facto administering power'. [Back]
191. See
East Timor (Portugal v. Australia), judgment (ICJ Reports 1995,
p. 90, paragraph 13). In that case, the Portuguese Republic
had maintained that, in spite of the occupation of East Timor by the
Republic of Indonesia, the Commonwealth of Australia could conclude an
international treaty applicable to East Timor only with the Portuguese
Republic, given its status as administering power of that territory. It
is therefore scarcely surprising that, in its written observations
lodged in the present case, the Portuguese Government did not adopt a
position on the validity of the contested measures and merely said that
their validity could not be determined by reference to Article 3(5)
TEU and that the rules of international law invoked by WSC were not
capable of being invoked. Nor did the Portuguese Government answer the
questions put to it by the Court, or participate in the hearing. [Back]
192. See judgment of 19 October 2015 in Western Sahara Campaign UK, R (on the application of) v HM Revenue and Customs
[2015] EWHC 2898 (Admin), paragraph 40, and United Nations General
Assembly Resolution 3458 A (XXX), which does not mention that agreement
and refers to the Kingdom of Spain as the administering power. See
also, to that effect, Brownlie, I., African Boundaries:a Legal and Diplomatic Encyclopaedia,
C. Hurst & Company, London,1979, pp. 149 to 158,
according to which 'in 1976 Spain transferred the territory of Spanish
Sahara to Morocco and Mauritania and a partition was arranged ... Since
the legitimacy of the partition arrangement is in question and lacks a
legal basis, the frontiers of Western Sahara merit examination'.
According to the same author, 'until the political situation evolves
further, it is unsafe to accept the fait accompli (if that is
what it is) arranged by Spain, Morocco and Mauritania. Non-recognition
of the outcome by other States has a basis in International Law'. See,
last, Soroeta Liceras, J., 'La posición de la Unión Europea en el
conflicto del Sahara Occidental, una muestra palpable (más) de la
primacía de sus intereses económicos y políticos sobre la promoción de
la democracia y de los derechos humanos', Revista de Derecho Comunitario Europeo,
2009, Vol. 34, pp. 823 to 864, at p. 832, and
Saul, B. 'The Status of Western Sahara as Occupied Territory
under International Humanitarian Law and the Exploitation of Natural
Resources', Sydney Law School Legal Studies Research Paper, No 15/81 (September 2015), p. 18. [Back]
193. See
point 163 of this Opinion. Conversely, Resolution 3458 A (XXX),
which did not recognise the Madrid Agreement, was approved by 88 States,
without any vote against it, the current Member States of the European
Union voting in favour of that resolution, with the exception of the
Kingdom of Spain and the Portuguese Republic, which abstained, and the
Republic of Malta, which did not vote. [Back]
194. See, for example, Burton, M.F., Foreign Relations of the United States, 1977-1980,
United States Government Printing Office, Washington, 2017,
Vol. XVII, Part 3 (Documents on North Africa), pp. 90, 371,
372 and 575. [Back]
195. See
Bedjaoui, M., 'Article 73', published in Cot, J.-P., Pellet,
A., and Forteau, M., La Charte des Nations unies: commentaire article par article, 3rd ed.,
Economica, Paris, 2005, pp. 1751 to 1767, especially p. 1763;
Fastenrath, U., 'Chapter XI Declaration Regarding Non-self-governing
Territories', published in Simma, B., Khan, D.-E., Nolte, G., and
Paulus, A. (eds), The Charter of the United Nations:A Commentary, 3rd ed.,
Oxford University Press, Oxford, 2012, Vol. II, pp. 1829 to
1839, especially p. 1836. See also, to that effect,
paragraph 3 of United Nations General Assembly Resolution 742
(VIII) of 27 November 1953. [Back]
196. See paragraph 57 of the Commission's answers to the written questions put by the Court. [Back]
197. See
the Cocos Islands Act 1955 and the Cocos Islands Order in Council 1955,
SI 1955/1642. See, to that effect, Kerr, A., A Federation in These Seas, Attorney General's Department of the Commonwealth of Australia, 2009, pp. 271 to 273 and 308 to 310; Spagnolo, B., The Continuity of Legal Systems in Theory and Practice, Hart Publishing, Oxford, 2015, p. 62. [Back]
198. See Repertory of Practice of United Nations Organs, supplement No 2 (1955-1959), Vol. 3, paragraph 6. [Back]
199. See Repertory of Practice of United Nations Organs,
supplement No 3 (1959-1966), Vol. 3, paragraph 215. See
also, to that effect, United Nations General Assembly Resolution 39/30,
which refers to the Commonwealth of Australia as the administering
power. [Back]
200. See
Articles I and XXVII of the Agreement between the Republic of Indonesia
and the Kingdom of the Netherlands concerning West New Guinea (West
Irian), signed at the headquarters of the United Nations, New York, on
15 August 1962, United Nations Treaty Series, Vol. 437, p. 274. See also, to that effect, United Nations General Assembly Resolution 1752 (XVII). [Back]
201. See Repertory of Practice of United Nations Organs, supplement No 3 (1959-1966), Vol. 3, paragraphs 52 to 55. [Back]
202. See
Report of 3 February 2017 of the United Nations Secretary-General
on information from Non-Self-Governing Territories transmitted under
Article 73(e) of the Charter of the United Nations (A72/62). [Back]
206. Case
of SS Wimbledon (United Kingdom and Others v. Germany), judgment of
17 August 1923 (PCIJ Series A, No 1, p. 25). [Back]
207. See
Case concerning the delimitation of maritime boundary between
Guinea-Bissau and Senegal, decision of 31 July 1989, Reports of International Arbitral Awards,
Vol. XX, pp. 119 to 213, paragraphs 51 and 52. The
validity of that decision was confirmed by the International Court of
Justice (see Arbitral Award of 31 July 1989, judgment (ICJ Reports
1991, p. 53)). According to the arbitral tribunal, the activities
of the national liberation movement 'have an impact at international
level from the time when they constitute an unusual event in the
institutional life of the territorial State that forces it to take
exceptional measures, that is to say when, in order to control or
attempt to control events, it finds it necessary to have recourse to
means which are not those generally used in order to deal with
occasional disruptions'. The fact that an armed conflict broke out
between Front Polisario and the Moroccan or Mauritanian armies means
that that criterion is satisfied. [Back]
208. See
Case concerning the delimitation of maritime boundary between
Guinea-Bissau and Senegal, decision of 31 July 1989, Reports of International Arbitral Awards, Vol. XX, pp. 119 to 213, paragraph 52. [Back]
209.United Nations Treaty Series, Vol. 1125, p. 3. [Back]
210. In
any event, these provisions satisfy the criteria governing the
possibility of relying on rules of international law set out in
point 96 of this Opinion, for the same reasons as those stated in
point 139 of this Opinion. [Back]
211. Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion (ICJ Reports
1996, p. 226, paragraph 79). See also, to that effect,
judgment of 1 October 1946 of the International Military Tribunal
at Nuremberg in The United States of America and Others v. Goering and Others, published in Trial
of the Major War Criminals before the International Military Tribunal
(Nuremberg, 14 November 1945 – 1 October 1946), 1947,
pp. 171 to 341, especially pp. 253 and 254; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraphs 89 and 157). [Back]
212. Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraph 157). [Back]
213. Emphasis
added. All the Member States of the Union and the Kingdom of Morocco
are parties to those conventions and to Additional Protocol I. In
addition, by a unilateral declaration of 23 June 2015 lodged with
the Swiss Federal Council in its capacity as depository of the Geneva
Conventions, which was notified to the States Parties to those
conventions, Front Polisario undertook to apply the four 1949 Geneva
Conventions and Additional Protocol I of 1977 in the conflict between it
and the Kingdom of Morocco. [Back]
214. Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraph 158). [Back]
216. See
Article 2 of that convention and Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion (ICJ Reports 2004, p. 136, paragraph 95). [Back]
217. Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraph 95). [Back]
218. Article 1(4)
of Additional Protocol I and Commentary of the International Committee
of the Red Cross (ICRC) of 1987, paragraph 114. See also, to that
effect, Roberts, A., 'What is military occupation?', British Yearbook of International Law, 1985, Vol. 55, pp. 249 to 305, especially pp. 254 and 255. [Back]
219. See David, É., Principes de droit des conflits armés, 5th ed.,
Bruylant, Brussels, 2012, pp. 189 and 190; Milanovic, M., 'The
Applicability of the Conventions to "Transnational" and "Mixed"
Conflicts', published in Clapham, A., Gaeta, P., and Sassòli,
M. (eds), The 1949 Geneva Conventions: A commentary,
Oxford University Press, Oxford, 2015, pp. 27 to 50,
paragraph 43; Saul, B., 'The Status of Western Sahara as Occupied
Territory under International Humanitarian Law and the Exploitation of
Natural Resources', Sydney Law School Legal Studies Research Paper, No 15/81, September 2015, pp. 5 and 6. [Back]
220. See
judgment of 31 March 2003 of the Trial Chamber of the
International Criminal Tribunal for the former Yugoslavia in the case of
Prosecutor v. Mladen Naletilić and Vinko Martinović (No IT-98-34-T), paragraph 211; Stato maggiore de la difesa, Manuale di diritto umanitario, 1991, Vol. I, paragraph 32; Federal Ministry of Defence of the Federal Republic of Germany, Humanitarian Law in Armed Conflicts Manual, 1992, paragraph 526; Office of the Judge Advocate General of Canada, Law of Armed Conflict, 2001, paragraph 1203(1); United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, paragraph 11.2; Ministerio de defensa, El derecho de los conflictos armados, 2nd ed., Centro Geográfico del Ejército, Madrid, 2007, Vol. I, pp. 2 to 20; United States Department of Defense, Law of War Manual, 2015, p. 744; Dinstein, Y., The International Law of Belligerent Occupation,
Cambridge University Press, Cambridge, 2009, p. 42,
paragraph 96; Sassòli, M., 'The Concept and the Beginning of
Occupation', published in Clapham, A., Gaeta, P., and Sassòli,
M. (eds), The 1949 Geneva Conventions: A commentary, Oxford University Press, Oxford, 2015, pp. 1389 to 1419, paragraph 8. [Back]
221. See
paragraphs 27, 44.1 and 47.4 of the decision making a request for a
preliminary ruling and paragraphs 40, 43, 48 and 49 of the
judgment of 19 October 2015 in Western Sahara Campaign UK, R (on the application of) v HM Revenue and Customs [2015] EWHC 2898 (Admin). [Back]
222. See
paragraphs 5 and 6. Eighty-five States voted for, 6 against, 41
abstained and 20 did not vote. See also, to that effect, United Nations
General Assembly Resolution 35/19. [Back]
223. See, in particular, Roberts, A., 'What is military occupation?', British Yearbook of International Law,
1985, Vol. 55, pp. 249 to 305, especially pp. 280 and
281; Gasser, H.P., 'The Conflict in Western Sahara – An Unresolved
Issue from the Decolonisation Period', Yearbook of International Humanitarian Law, 2002, Vol. 5, pp. 375 to 380, especially p. 379; Arai-Takahashi, Y., The Law of Occupation:Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law,
Martinus Nijhoff, The Hague, 2009, p. 140; Chinkin, C., 'Laws of
occupation', published in Botha, N., Olivier, M., and van Tonder,
D. (eds), Multilateralism and International Law with Western Sahara as a Case Study, VerLoren van Themaat Centre, Pretoria, 2010, pp. 197 to 221, especially pp. 197 to 200; Benvenisti, E., The International Law of Occupation, 2nd ed.,
Oxford University Press, Oxford, 2012, p. 171; Fastenrath, U.,
'Chapter XI Declaration Regarding Non-self-governing Territories',
published in Simma, B., Khan, D.-E., Nolte, G., and Paulus,
A. (eds), The Charter of the United Nations:A Commentary, 3e
ed., Oxford University Press, Oxford, 2012, Vol. II, pp. 1829
to 1839, especially p. 1837; Koutroulis, V., 'The application of
international humanitarian law and international human rights law in
prolonged occupation: only a matter of time?', International Review of the Red Cross, 2012, Vol. 94, pp. 165 to 205, especially p. 171; David, É., Principes de droit des conflits armés, 5th
ed., Bruylant, Brussels, 2012, p. 192; Ruiz Miguel, C., 'La
responsabilité internationale et les droits de l'homme: le cas du Sahara
occidental', Cahiers de la recherche sur les droits fondamentaux,
2013, Vol. 11, pp. 105 to 130, especially p. 107;
Dawidowicz, M., 'Trading Fish or Human Rights in Western Sahara?
Self-Determination, Non-Recognition and the EC-Morocco Fisheries
Agreement', published in French, D. (ed.), Statehood, Self-Determination and Minorities: Reconciling Tradition and Modernity in International Law,
Cambridge University Press, Cambridge, 2013, pp. 250 to 276;
Bothe, M., 'The Administration of Occupied Territory' published in
Clapham, A., Gaeta, P., and Sassòli, M. (eds), The 1949 Geneva Conventions: A commentary,
Oxford University Press, Oxford, 2015, pp. 1455 to 1484,
especially p. 1459; Kontorovich, E., 'Economic Dealings with
Occupied Territories', Columbia Journal of Transnational Law,
2015, Vol. 53, pp. 584 to 637, especially pp. 611 and
612; Saul, B., 'The Status of Western Sahara as Occupied Territory
under International Humanitarian Law and the Exploitation of Natural
Resources', Sydney Law School Legal Studies Research Paper,
No 15/81 (September 2015). See also judgment of 15 June 2017
of the High Court of South Africa in Case No 1487/17, The Saharawi Arab Democratic Republic and Front Polisario v The Owner and charterers of the MV 'NM Cherry Blossom', paragraph 29. [Back]
224. See Corell, H., 'Western Sahara – status and resources', New Routes, 2010, Vol. 15, pp. 10 to 13, especially p. 11. [Back]
225. See
letter dated 29 January 2002, addressed to the President of the
Security Council by the Under-Secretary-General for Legal Affairs, the
Legal Counsel (S/2002/161). [Back]
226. Armed
Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), judgment (ICJ Reports 2005, p. 168,
paragraph 173). The same principle applies to the occupation of
non-self-governing territories, under Article 1(4) of Additional
Protocol I. [Back]
227. I
recall that the Islamic Republic of Mauritania withdrew from Western
Sahara on 14 August 1979 after signing a peace agreement with Front
Polisario. On the same day the Kingdom of Morocco annexed the part of
Western Sahara initially occupied by the Islamic Republic of Mauritania,
which recognised that 'occupation by force' by the declaration of its
Prime Minister, dated 14 August 1979, annexed to the letter dated
18 August 1979, addressed to the United Nations Secretary-General
by the Permanent Representative of the Islamic Republic of Mauritania to
the United Nations (A/34/427). [Back]
228. For
a detailed report of the placing of Western Sahara under Moroccan
authority, see Dessaints, J., 'Chronique politique Maroc', Annuaire de l'Afrique du Nord, 1975, Vol. 14, pp. 457 to 476, especially pp. 463 to 465; Santucci, J.-C., 'Chronique politique Maroc', Annuaire de l'Afrique du Nord, 1976, Vol. 15, pp. 357 to 379, especially pp. 359 to 361. [Back]
229. I
would also emphasise that, even if it were considered valid, the Madrid
Agreement did not in any way authorise a Moroccan military presence on
the territory of Western Sahara without the consent of its people, which
has never been given. [Back]
230. See Dinstein, Y., The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 47 and 48; Benvenisti, E., The International Law of Occupation, 2nd
ed., Oxford University Press, Oxford, 2012, p. 55; Sassòli, M.,
'The Concept and the Beginning of Occupation' published in Clapham, A.,
Gaeta, P., and Sassòli, M. (eds), The 1949 Geneva Conventions:A commentary, Oxford University Press, Oxford, 2015, pp. 1389 to 1419, paragraph 15. [Back]
231. See Benvenisti, E., The International Law of Occupation, 2nd ed., Oxford University Press, Oxford, 2012, p. 55. [Back]
232. 'The
authority of the legitimate power having in fact passed into the hands
of the occupant, the latter shall take all the measures in his power to
restore, and ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the
country.' [Back]
233. 'The
Occupying Power may, however, subject the population of the occupied
territory to provisions which are essential to enable the Occupying
Power to fulfil its obligations under the present Convention, to
maintain the orderly government of the territory, and to ensure the
security of the Occupying Power, of the members and property of the
occupying forces or administration, and likewise of the establishments
and lines of communication used by them.' [Back]
234. See
Sassòli, M., 'Legislation and Maintenance of Public Order and Civil
Life by Occupying Powers', European Journal of International Law, 2005, Vol. 16, pp. 661 to 694; Dinstein, Y., The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 115 and 116; Arai-Takahashi, Y., The
Law of Occupation: Continuity and Change of International Humanitarian
Law, and its Interaction with International Human Rights Law, Martinus Nijhoff, The Hague, 2009, pp. 120 and 121. [Back]
235. See Benvenisti, E., The International Law of Occupation, 2nd ed.,
Oxford University Press, Oxford, 2012, pp. 83 to 86; Bothe, M.,
'The Administration of Occupied Territory' published in Clapham, A.,
Gaeta, P., and Sassòli, M. (eds), The 1949 Geneva Conventions: A commentary, Oxford University Press, Oxford, 2015, pp. 1455 to 1484, paragraph 98. [Back]
236. See
East Timor (Portugal v. Australia), judgment (ICJ Reports 1995,
p. 90, paragraphs 13 and 32). If the Court did not exercise
its jurisdiction in that case, that was because it would have had to
determine the lawfulness of the integration of East Timor in the
Republic of Indonesia. However, that did not prevent it from describing
the Indonesian military intervention as an occupation (see
paragraph 13 of the judgment), which, moreover, is a question of
fact (see point 246 of this Opinion). [Back]
237. See Benvenisti, E., The International Law of Occupation,
2nd ed., Oxford University Press, Oxford, 2012, p. 85; Bothe, M.,
'The Administration of Occupied Territory', published in Clapham, A.,
Gaeta, P., and Sassòli, M. (eds), The 1949 Geneva Conventions: A commentary, Oxford University Press, Oxford, 2015, pp. 1455 to 1484, paragraph 98. [Back]
238. See
Article 4 of Additional Protocol I; Article 47 of Geneva
Convention IV; award of 18 April 1925 in the Case of Dette publique
ottomane (Bulgarie, Irak, Palestine, Transjordanie, Grèce, Italie et
Turquie), Reports of International Arbitral Awards, Vol. 1,
pp. 529 to 614, especially p. 555; judgment of 10 March
1948 of Military Tribunal No I in the RuSHA case (United States of
America v. Greifelt and Others), Trials of War Criminals before the Nuremberg Military Tribunals,
U.S. Government Printing Office, Washington, 1950, Vol. V,
p. 154; Oppenheim, L., 'The Legal Relations between an Occupying
Power and the Inhabitants', Law Quarterly Review, 1917, Vol. 33, p. 363, p. 364; Dinstein, Y., The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 49 to 51; David, É., Principes de droit des conflits armés, 5th ed., Bruylant, Brussels, 2012, pp. 582 and 583; Benvenisti, E., The International Law of Occupation, 2nd
ed., Oxford University Press, Oxford, 2012, p. 85; Bothe, M., 'The
Administration of Occupied Territory' published in Clapham, A., Gaeta,
P., and Sassòli, M. (eds), The 1949 Geneva Conventions: A commentary, Oxford University Press, Oxford, 2015, pp. 1455 to 1484, paragraph 10. [Back]
239. This
is the occupation authority established in the Iraq by the United
States of America and their coalition in order to govern the country
between 2003 and 2004. [Back]
240. See
the Framework Agreement between the Coalition Provisional Authority
('the Authority') which, in application of the laws and customs of war
and the relevant United Nations Security Council resolutions, in
particular Resolution 1483 (2003), temporarily has the force of
governmental authority in Iraq, the Trade Bank of Iraq (TBI), set up
under Regulation No 20 of the Authority, and the Export Risk
Guarantee Agency (ERG), acting on behalf of the Swiss Confederation,
signed in Rome on 5 December 2003, Recueil systématique du droit fédéral, 0.946.144.32. [Back]
241. Note
of 15 December 2003 of the Directorate of Public International Law
of the Swiss Confederation, reproduced in Ferraro, T. (ed.),
Rapport des experts du CIRC 'Occupation and other forms of
administration of foreign territory', 2012, p. 59. See also, to
that effect, Caflisch, L.C., 'La pratique suisse en matière de droit
international public 2003', Revue Suisse de droit international et de droit européen, 2004, Vol. 5, pp. 661 to 719, especially pp. 663 and 664. [Back]
242. See
paragraph 4, according to which the Security Council 'call[ed]
upon the [Coalition Provisional] Authority, consistent with the Charter
of the United Nations and other relevant international law, to promote
the welfare of the Iraqi people through the effective administration of the territory,
including in particular working towards the restoration of conditions
of security and stability and the creation of conditions in which the
Iraqi people can freely determine their own political future'. Emphasis
added. [Back]
243. See
paragraph 1, according to which the Security Council 'reaffirm[ed]
the sovereignty and territorial integrity of Iraq, and underscore[d],
in that context, the temporary nature of the exercise by the
[Authority] of the specific responsibilities, authorities, and
obligations under applicable international law recognised and set
forth in Resolution 1483 (2003), which will cease when an
internationally recognised, representative government established by the
people of Iraq is sworn in and assumes the responsibilities of the
Authority'. Emphasis added. [Back]
244. See title of the Framework Agreement (Recueil systématique du droit fédéral, 0.946.144.32). [Back]
245. See
Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), judgment (ICJ Reports 2005, p. 168,
paragraph 244). [Back]
246. See points 130 to 134 of this Opinion. [Back]
247. See points 245 to 249 of this Opinion. [Back]
248. See
'Iustiniani Institutiones', Book II, Chapter IV '(De usu fructu),
principium', published in Krueger, P. (ed.), Corpus Iuris Civilis,
Weidmann, Berlin, 1889, Vol. I; U.S. Department of State,
'Memorandum of Law on Israel's right to develop new oil field in Sinai
and the Gulf of Suez', 1 October 1976, International Law Materials,
1977, Vol. 16, pp. 733 to 753, especially p. 736;
Ministry of Foreign Affairs of Israel, 'Memorandum of Law on the Right
to develop new oil fields in Sinai and the Gulf of Suez', 1 August
1977, International Law Materials, 1978, Vol. 17, pp. 432 to 444, paragraph 2; Dinstein, Y., The International Law of Belligerent Occupation,
Cambridge University Press, Cambridge, 2009, p. 214; Van Engeland,
A., 'Protection of Public Property', published in Clapham, A., Gaeta,
P., and Sassòli, M. (eds), The 1949 Geneva Conventions: A commentary, Oxford University Press, Oxford, 2015, pp. 1535 to 1550, paragraphs 20 to 22. [Back]
249. See Dinstein, Y., The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, p. 215; Office of the Judge Advocate General of Canada, Law of Armed Conflict, 2001, paragraph 1243; UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, paragraph 11.86; U.S. Department of Defense, Law of War Manual, 2015, p. 793. [Back]
250. See
Ministry of Foreign Affairs of Israel, 'Memorandum of Law on the Right
to develop new oil fields in Sinai and the Gulf of Suez', 1 August
1977, International Law Materials, 1978, Vol. 17,
pp. 432 to 444, paragraph 12; Cassese, A., 'Powers and Duties
of an Occupant in Relation to Land and Natural Resources', published in
Cassese, A., Gaeta, P., and Zappalà, S. (eds), The Human Dimension of International Law: Selected Papers of Antonio Cassese, 2008, Oxford University Press, Oxford, pp. 250 to 271, especially p. 258; Dinstein, Y., The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, p. 217. [Back]
251. Judgment of 1 October 1946 of the International Military Tribunal at Nuremberg in The United States of America and Others v. Goering and Others, published in Trial
of the Major War Criminals before the International Military Tribunal
(Nuremberg, 14 November 1945 – 1 October 1946), 1947,
pp. 171 to 341, especially p. 239. See also, to that effect,
U.S. Department of State, 'Memorandum of Law on Israel's right to
develop new oil field in Sinai and the Gulf of Suez', 1 October
1976, International Law Materials, 1977, Vol. 16,
pp. 733 to 753, especially. p. 743; Ministry of Foreign
Affairs of Israel, 'Memorandum of Law on the Right to develop new oil
fields in Sinai and the Gulf of Suez', 1 August 1977, International Law Materials, 1978, Vol. 17, pp. 432 to 444, especially p. 437. [Back]
252. See
U.S. Department of State, 'Memorandum of Law on Israel's right to
develop new oil field in Sinai and the Gulf of Suez', 1 October
1976, International Law Materials, 1977, Vol. 16,
pp. 733 to 753, especially pp. 743 to 745; Cassese, A.,
'Powers and Duties of an Occupant in Relation to Land and Natural
Resources' published in Cassese, A., Gaeta, P., and Zappalà,
S. (eds), The Human Dimension of International Law:Selected Papers of Antonio Cassese, 2008, Oxford University Press, Oxford, pp. 250 to 271, especially pp. 257 and 261; Benvenisti, E., The International Law of Occupation, 2nd ed., Oxford University Press, Oxford, 2012, p. 82. [Back]
253. See
letter dated 8 May 2003, addressed to the President of the
Security Council by the Permanent Representatives of the United States
of America and the United Kingdom of Great Britain and Northern Ireland
to the United Nations Organisation (S/2003/538). [Back]
254. See
Coalition Provisional Authority, Regulation No 2 of 15 June
2003, Development Fund for Iraq. [Back]
255. See
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (ICJ
Reports 1996, p. 226, paragraph 25); Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion (ICJ Reports 2004, p. 136, paragraphs 105 and
106). [Back]
256. Armed
Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), judgment (ICJ Reports 2005, p. 168,
paragraph 244). [Back]
257. See, to that effect, Dinstein, Y., The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 219 and 220. [Back]
258. See
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion (ICJ Reports 2004, p. 136,
paragraph 106); Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), judgment (ICJ Reports
2005, p. 168, paragraphs 216, 217 and 220). [Back]
259. See
preamble and Article 1, Article 3(1) and Articles 4, 8
and 9 of the Fisheries Agreement. See also, to that effect,
Articles 4 and 5 of the 2013 Protocol. [Back]
260. See points 258 and 260 of this Opinion. [Back]
261. These
datasheets are in Appendix 2 to the Annex to the Fisheries Agreement.
Pursuant to Article 16 of the Fisheries Agreement, the Annex and
the Appendices thereto are to form an integral part of the agreement. [Back]
263. See
point 261 of this Opinion. The file contains no information in
that respect, since, being of the view that the Kingdom of Morocco is
the 'de facto administering authority' of Western Sahara, the EU
institutions did not ask themselves the question. [Back]
264. Such
a transfer constitutes a serious breach of Additional Protocol I (see
Article 85(4)(a) of that protocol) and a war crime
(Article 8(2)(b)(viii) of the Rome Statute of the International
Criminal Court, United Nations Treaty Series, Vol. 2187, p. 3). It should be noted that the Kingdom of Morocco has signed but not ratified the Rome Statute. [Back]
265. See paragraph 7 of United Nations General Assembly Resolution 3458 A (XXX). [Back]
266. See paragraphs 2 and 4 of United Nations General Assembly Resolution 3458 B (XXX). [Back]
267. See Appendix 2 to the Annex to the 2013 Protocol. [Back]
268. See
Milano, E., 'The New Fisheries Partnership Agreement between the EC and
Morocco: Fishing too South?', Anuario español de derecho internacional,
2006, Vol. 22, pp. 413 to 457, especially pp. 435 to
442; Soroeta Liceras, J., 'La posicíon de la Unión Europea en el
conflicto del Sahara Occidental, una muestra palpable (más) de la
primacía de sus intereses económicos y políticos sobre la promoción de
la democracia y de los derechos humanos', Revista de Derecho Comunitario Europeo,
2009, Vol. 34, pp. 823 to 864, especially pp. 829 to 837
and pp. 844 to 847; Corell, H., 'The legality of exploring and
exploiting natural resources in Western Sahara', published in Botha, N.,
Olivier, M., and van Tonder, D. (eds), Multilateralism and International Law with Western Sahara as a Case Study,
VerLoren van Themaat Centre, Pretoria, 2010, pp. 231 to 247,
especially p. 242; Etienne, J., 'L'accord de pêche CE-Maroc: quels
remèdes juridictionnels européens à quelle illicéité internationale', Revue belge de droit international,
2010, pp. 77 to 107, especially pp. 86 to 88; Saul,
B., 'The Status of Western Sahara as Occupied Territory under
International Humanitarian Law and the Exploitation of Natural
Resources', Sydney Law School Legal Studies Research Paper,
No 15/81 (September 2015), pp. 29 to 31. See also, to that
effect, 'Legal opinion [of the Office of the Legal Counsel of the
African Union] on the legality in the context of international law,
including the relevant United Nations resolutions and Organisation of
African Unity/African Union decisions, of actions allegedly taken by the
Moroccan authorities or any other State, group of States, foreign
companies or any other entity in the exploration and/or exploitation of
renewable and non-renewable natural resources of any other economic
activity in Western Sahara', annexed to the letter dated 9 October
2015 from the Permanent Representative of Zimbabwe to the United Nations
to the President of the Security Council (S/2015/786). [Back]
269. In
1970, South Africa had not yet withdrawn its administration from
Namibia, notwithstanding that the United Nations General Assembly had
terminated its mandate over that territory which the League of Nations
had granted it, that the General Assembly had itself directly assumed
responsibility for governing Namibia and that United Nations Security
Council had requested South Africa to withdraw its administration from
Namibia immediately. It should be borne in mind that, as in its own
territory, South Africa had imposed the apartheid regime in Namibia. For
those reasons, by Resolution 276 (1970), the Security Council declared
that 'the continued presence of the South African authorities in Namibia
is illegal and ... consequently all acts taken by the Government of South
Africa on behalf of or concerning Namibia after the termination of the
Mandate are illegal' (paragraph 2). It also called upon 'all
States, particularly those which have economic and other interests in
Namibia, to refrain from any dealings with the Government of South
Africa which are inconsistent with paragraph 2 of the present
resolution' (paragraph 5). The Security Council subsequently asked
the International Court of Justice to give its opinion on the
consequences for States of the continued presence of South Africa in
Namibia, notwithstanding its Resolution 276 (1970). [Back]
270. Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), Advisory Opinion (ICJ Reports 1971, p. 16). [Back]
271. See judgment of 5 July 1994, Anastasiou and Others (C-432/92, EU:C:1994:277, paragraph 35). [Back]
272. See judgment of 5 July 1994, Anastasiou and Others (C-432/92, EU:C:1994:277, paragraph 49). [Back]
273. See
Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion (ICJ Reports 1971, p. 16,
paragraph 125). [Back]
274. See
Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion (ICJ Reports 1971, p. 16,
paragraph 124). [Back]
275. See paragraph 59 of its written observations. [Back]
276. See paragraphs 373 to 376 of that judgment. [Back]
277. See
Article 16 of the Fisheries Agreement and the first paragraph of
Article 1 of the 2013 Protocol. [Back]
278. See the first paragraph of Article 2 of the 2013 Protocol. [Back]
279. See
paragraphs 373 and 374 of that judgment. The Court referred to the risk
that persons subject to restrictive measures might take steps to
prevent fund-freezing measures being applied to them again and to the
possibility that, in spite of the procedural irregularities established
in its judgment, the imposition of restrictive measures on the
appellants might prove to be justified. [Back]
This document has been published on 30Jan18 by the Equipo Nizkor. and Derechos Human Rights. In accordance with
Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a
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