By Markus W. Gehring, Lecturer in Law, University of Cambridge

On February 27, 2018, the Court of Justice of the European Union (CJEU) issued its judgment in a case referred by the High Court of England and Wales. The case, Western Sahara Campaign UK v. HM Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs, C-266/16, concerned the legality of EU fishing activities in waters adjacent to Western Sahara. The CJEU closely followed its reasoning from a prior case, Council v. Front Polisario, C-104/16.

The Western Sahara Campaign UK, an organization advocating for self-determination for Western Sahara, brought two legal challenges. First, they contested the importation of goods labeled as originating from Western Sahara as if they were from Morocco, given that Morocco’s claim over Western Sahara lacks international recognition. Second, they challenged UK fisheries policy for encompassing waters near Western Sahara, as the geographical scope of the 2007 Fisheries Partnership Agreement and 2013 Protocol between the EU and Morocco remained undefined.

Following the Council v. Front Polisario judgment, the initial two questions regarding goods from Western Sahara were withdrawn. The CJEU was left with two questions: the validity of the Fisheries Partnership Agreement in light of self-determination and potential benefits for the Saharawi people, and whether the Campaign could challenge EU acts based on alleged international law breaches by the EU in the absence of Morocco as a party to the proceedings.

The CJEU found the second question moot, as it did not find the EU in violation of international law. Regarding the first question, the Court, echoing Polisario, handed Morocco a symbolic victory. The Court ruled that neither the Fisheries Partnership Agreement nor the Protocol applied to waters adjacent to Western Sahara, meaning the relevant EU Regulations implementing them were not invalid under Article 3(5) of the Treaty on European Union.

This decision satisfied neither party. The Campaign had argued that goods from Moroccan-controlled Western Sahara entered the UK unchecked and that the agreements prevented their rejection. The question of how the prohibition of EU fishing off Western Sahara benefits the local population or their human rights, as emphasized by the Court in Polisario, also remained. Morocco, again not a party, was unable to defend its interests.

This judgment essentially upholds the Polisario decision and might further strain EU-Morocco relations as EU fishing vessels lose access to waters near Western Sahara. The High Court must now rule on the case, likely rejecting the claim, while the broader issue of Western Sahara’s natural resources exports persists.

Had the CJEU followed Advocate General Wathelet’s opinion, which found both the Fisheries Partnership Agreement and the Protocol invalid, it would have significantly impacted how international law applies to cases brought by individuals. However, given the Court’s opposing conclusion, the opinion’s future relevance is uncertain. Hopefully, a diplomatic resolution can be reached before EU-Morocco relations deteriorate further.

*Many thanks to Anna Khalfaoui from BIICL for her editorial assistance.

Barnard & Peers: chapter 24

Photo credit: Modern Ghana