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EU Advocate General restates importance of self-determination to validity of natural resources agreements

In a landmark opinion, Advocate General Wathelet (the AG) of the European Court of Justice (CJEU) has invited the court to conclude that fisheries agreements between the EU and Morocco are in violation of the international law principle of self-determination, and therefore invalid under EU law. It comes as a clear reminder that EU institutions must respect international law principles binding upon them when entering into international agreements.

If the court follows the AG’s lead, the case could have ramifications for other territories whose populations may claim rights to self-determination, such as Catalonia and the Kurdistan Region of Iraq, and for the validity under international law of agreements with the states occupying those territories.

Background

The territory of Western Sahara is occupied by Morocco, a situation widely considered to breach the principles of international law entitling peoples to self-determination. The UN recognises Western Sahara as a non-self-governing territory occupied by Morocco.

The reference to the CJEU emanates from an English court case brought by Western Sahara Campaign UK, an NGO aiming to support the recognition of the Western Saharan people’s right to self-determination. It argues that the EU-Morocco agreements (insofar as they purport to apply to Western Sahara) violate that right and so are contrary to the general principles of EU law and to Article 3(5) of the Treaty on European Union, under which the EU is required to respect international law. Under the agreements, the EU paid Morocco for access to waters including Western Sahara’s.

As the measures in question related to the validity of EU law, the English court referred the case to the CJEU, itself characterising Morocco’s presence in Western Sahara as a “continued occupation”.

The Advocate General’s Conclusions

Article 3(5) of the Lisbon Treaty states that the EU will respect the principles contained in the UN Charter, of which Article 1 sets out the principle of self-determination of peoples, while Article 73 promotes self-government. Yet the EU fisheries agreements with Morocco purport to deal with waters off the coast of Western Sahara.

The AG considered, first, that, where the relevant principles of international law (here, both treaty and customary law forming part of general international law) are “unconditional and sufficiently precise”, a claimant can rely on them to challenge EU actions. He noted that the right of self-determination, because it formed part of the law of human rights, was not subject to these requirements, but in any event met them. Similarly, (i) the principle of permanent sovereignty over natural resources and (ii) the rules of international humanitarian law applicable to the exploitation of Western Sahara’s natural resources were also sufficiently precise and unconditional to be invoked by the NGO.

Examining whether the fisheries agreements breached the international legal principles in play, the AG examined in some detail the historical background to Morocco’s occupation. An advisory opinion issued by the International Court of Justice in 1975 had stated that Western Sahara was not a “territory belonging to no one” at the time of its earlier occupation by Spain. A referendum on self-determination under UN auspices was thus envisaged, but Morocco considered this unnecessary on the basis the population had already de facto determined themselves in favour of returning the territory to Morocco. The AG, however, concluded that Western Sahara was integrated within Morocco “without the people of the territory having freely expressed its will in that respect”.

Because the fisheries agreements with Morocco make no exception for Western Sahara, the AG considered the EU is in breach of its obligation not to recognise an illegal situation resulting from the breach of the right to self-determination, and to refrain from rendering aid or assistance in maintaining that situation.

The AG also emphasised that as “Western Sahara is a non-self-governing territory in the course of being decolonised … 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”. He found that the fisheries agreements did not contain the necessary legal safeguards to ensure that the natural resources were used for the benefit of the people of Western Sahara. On that basis also, in his view the provisions of the agreements were not compatible with EU or international law.

Impact of the opinion

It remains to be seen whether the CJEU will follow the AG’s opinion. The opinion is nevertheless significant, not only for the Western Saharan situation. It is a robust restatement of the importance of the right to self-determination, and of the consequences that may flow where it is held to be breached, as well as of the importance of the protection of natural resources in occupied territories.

The arguments set out in this opinion will undoubtedly influence independence discourse in territories as disparate as Catalonia and Kurdistan, and the CJEU’s decision, expected at the end of February, will be keenly anticipated.

The reaffirmation of the principle of permanent sovereignty over natural resources is of particular interest regarding the Kurdistan Region of Iraq, where the exploitation of natural resources has been a contentious issue for decades. Kurdistan’s status as a semi-autonomous region with the right to manage its oil resources is enshrined in Iraq’s 2005 Constitution, and the Region has not declared independence.  Although not analogous with the Western Sahara situation, one can envisage questions being raised as to the compatibility with international law of any agreements which states may have or may enter into with the Iraqi federal government that relate in some way to resources in Kurdistan territory.  It may well be argued that these too fail to respect the Kurdish people’s sovereignty over their natural resources and/or their right to self-determination (as well as potentially breaching the constitutional provisions).  The AG’s comments as to the unconditional and precise nature of these principles paves the way for challenges before national courts on the basis that these are binding upon states, which may not enter into agreements that disregard them.

Case C-266/16 Western Sahara Campaign, Opinion of Advocate General Wathelet, 10 January 2018

The authors are grateful to Seonaid Stevenson, a trainee solicitor at Dentons, for her assistance with this piece.

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EU Advocate General restates importance of self-determination to validity of natural resources agreements

Investors move to secure positions in light of Tanzania natural resources reforms

Investors move to secure positions in light of Tanzania natural resources reforms

Recent measures introduced in the Tanzanian natural resources and mining sectors could have far-reaching implications for the value of investments in the country. As a result of legislation, approved by the National Assembly in early July, companies face the prospect of having to grant a 16 per cent free carried interest to the government, acquisition of up to 50 per cent of the company, increased royalties and forced renegotiation of certain terms.

The reforms are the latest in a campaign to exercise greater control over the extractives sectors. This has already given rise to two new claims by foreign investors since the beginning of July. Those with interests in the country’s mining, oil and gas industries will be closely observing developments, reviewing their contractual investment treaty protections and taking steps to protect their assets and any future claims.

The key provisions of significance to foreign investors are as follows:

Natural Wealth and Resources Contracts (Review and Re-negotiation of Unconscionable Terms) Act 2017

This Act grants the government far-reaching powers to renegotiate contracts relating to any natural resources where they contain what are considered by the National Assembly to be “unconscionable terms”. This power of review extends to contracts predating the Act. Terms that are deemed to be unconscionable include those which:

  • are aimed at restricting the state’s right to exercise sovereignty over its wealth, natural resources and economic activity;
  • restrict the state’s right to exercise authority over foreign investment within the country;
  • are “inequitable and onerous to the State”;
  • grant “preferential treatment” designed to create a “separate legal regime to be applied discriminatorily for the benefit of a particular investor”;
  • deprive the Tanzanian people of the economic benefits derived from natural resources;
  • empower transnational corporations to intervene in Tanzania’s internal affairs;
  • subject the state to the jurisdiction of foreign tribunals or laws.

What might be an unconscionable term is extremely broad – indeed, most recent contracts in which foreign entities are (even indirectly) involved are likely to contain provisions that would be caught. This again evidences the progressive change in policy towards foreign investment, going directly against many of the protections in Tanzania’s 11 bilateral investment treaties (BITs) currently in force.

Changes to the Mining Act 2010

The Written Laws (Miscellaneous Amendments) Act 2017 introduced the requirement that, where a company is carrying out any mining operations under a mining licence or special mining licence, the government shall have a minimum 16 per cent free carried interest in its shares. In addition, it will be entitled to acquire up to 50 per cent of the shares of the company, “commensurate with the total tax expenditures incurred by the Government in favour of the mining company”.

It remains to be seen whether the government will take the 16 per cent free carried interest where operations occur under existing licences, or only where new licences are granted. How the government’s “entitlement” to acquire additional shares will work is equally uncertain. Investors are likely to face difficult strategic decisions over the coming months in light of the risk of seizure of their shares or other assets.

Additionally, this Act increases the royalty rate payable for uranium, gemstones and diamonds from 5 per cent to 6 per cent, and for other metals including gold from 4 per cent to 6 per cent. There is a new requirement that one third of royalties are to be paid by depositing minerals of the equivalent value with the government.

Natural Wealth and Resources (Permanent Sovereignty) Act 2017

This Act provides that the people of Tanzania have permanent sovereignty over all natural wealth and resources, ownership and control of which vests in the government on their behalf. The President is to hold the country’s natural wealth and resources on trust for the people. This in itself may not have an immediate impact upon investments, but again sends a fairly clear message as to the government’s intentions.

Finally, the Act provides that disputes “arising from extraction, exploitation or acquisition and use of natural wealth and resources shall be adjudicated by judicial bodies or other organs established in the United Republic and [in] accordance with laws of Tanzania”.

It is doubtful whether a foreign tribunal considering its jurisdiction under a pre-existing valid arbitration clause would pay regard to this provision. The Act also provides that the jurisdiction of the Tanzanian courts must be acknowledged and incorporated in any “arrangement or agreement” – which may have significant implications for agreeing a forum for disputes outside Tanzania under future agreements.

It is unclear whether the Act intends to attempt to exclude ICSID jurisdiction. However, it would be unlikely to be effective where consent to that jurisdiction has been expressed by Tanzania in BITs (which consent cannot unilaterally be revoked). It should therefore be open to investors still to initiate ICSID arbitration under such treaties.

Impact and potential claims against Tanzania

Against the backdrop of the tightening regime relating to the natural resources sector, two international companies are reported to have commenced arbitration proceedings in as many months.

Two subsidiaries of Acacia Mining started LCIA arbitrations based on their Mineral Development Agreements (MDAs) with Tanzania. The arbitrations followed a ban on mineral exports by the companies imposed following allegations by the state that Acacia had under-reported its exports, amounting to a multi-million-dollar tax evasion. Acacia’s parent company, Barrick Gold, is said to have intervened to attempt to resolve the dispute with the government, and it was reported on 20 October that a settlement deal has been proposed. This would involve Acacia forming a new joint venture with the Tanzanian government to operate three gold mines, with Tanzania receiving a 16% stake in the mines and a 50% share of the profits, as well as a one-off payment of $300million from Acacia.[1]

South African company AngloGold Ashanti also announced earlier this month that it had begun arbitration proceedings against Tanzania, in response to the ability to renegotiate contracts pursuant to the Unconscionable Terms Act. Reports state this was a precautionary step taken by the company to protect its indirect subsidiaries’ agreements with the government in relation to the development and operation of the Geita Gold Mine. This pre-emptive action demonstrates the serious threat the new governmental powers pose to foreign investments.

Whilst the three arbitrations already launched are based on the companies’ contracts, investors with the government should also consider the BIT protections available to them and what claims could be brought before ICSID (with the increased potential for publicity and direct enforcement this entails). Where an applicable BIT contains an umbrella clause (as many of Tanzania’s do), any breach of an Mineral Development Agreement or other contract will also constitute a breach of the BIT, opening the door to ICSID jurisdiction over the dispute.

Even where no contract is in place, the measures threatened may well breach BIT provisions and trigger further claims. Any demand for carried interest without compensation is likely, for instance, to constitute an unlawful expropriation. If this were the case, the investor would usually be entitled to recover the fair market value of the shareholding immediately prior to the expropriation. The same would be true of any additional shares compulsorily acquired for which adequate compensation was not given.

Many of the measures identified may also breach fair and equitable treatment provisions in BITs (which include protection of an investor’s legitimate expectations) and provisions promising treatment no less favourable than that afforded to a state’s own nationals.

Those with interests in Tanzania’s mining, oil and gas industries would be well advised to take all possible steps to protect their investments in light of this legislation and widely anticipated further measures to create yet more state control over the sectors.

[1] “Tanzania takes steps to settle mining dispute”, Global Arbitration Review, 20 October 2017.

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Investors move to secure positions in light of Tanzania natural resources reforms