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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