Commentary on judgments in cases Council v Front Polisario (C‑104/16 P) and Western Sahara Campaign UK (C-266/16)
The Western Sahara Campaign UK judgment rendered by the Court of Justice of the European Union (CJEU) on 27 February 2018 is the third judgment in the last three years related to the territory of Western Sahara and the bilateral relations between EU and the Kingdom of Morocco. The Court found that the Fisheries Partnership Agreement (FPA) and the 2013 Protocol concluded by themare not applicable to the territory of Western Sahara thus confirming its reasoning in the 2016 judgment in Council v Polisario. In both decisions some classic features of territorial disputes are intertwined with complex issues related to treaty interpretation. The judgments demonstrate the selective and rather artificial approach of the Court towards the interpretation of international agreements. The judgments are extensively analysed in journals and specialised blogs. The interest towards the stance of the EU institutions and the CJEU is not surprising. The complex long-standing territorial disputes in the immediate surrounding of the EU are one of the most serious tests for the coherence of the EU external action. They also demonstrate the way the EU sees itself and wants to be seen and its attitude towards international law. Two opposing views clash on the conduct of the the Union in such delicate situations: those who favour a pragmatic approach which puts the emphasis on the trade benefits and those who believe that EU should be a normative power strong enough to deny Realpolitik considerations to guide its foreign policy. The Court of Justice of the EU had to navigate the perilous waters of Cape Bojador (whose Arabic name is Abu Khatar”, “the father of danger”) and international law.
The commentary will briefly present the broad context of the situation in Western Sahara and the more specific factual background of the case. After mentioning the relevant provisions of international law, EU law and the international agreements, the focus will shift on the Council v Polisario case, decided by a Grand Chamber of the Court in December 2016. This decision forms part of the context of the Western Sahara Campaign UK case not only because it concerns the same territory but mainly because the Court based its reasoning in the current case on the conclusions it had reached already in 2016. Two of the four preliminary questions sent by the requesting jurisdiction were withdrawn as the Court had provided answers to them in Council v Polisario. Although they concern different international agreements, the two decisions could be seen as complementary. After discussing the 2016 decision this commentary can finally focus on the opinion of the Advocate General and the decision of the Grand Chamber in the present case. It is perhaps useful to distinguish the two cases on the basis of their nature. While the Council v Front Polisario is a direct procedure while the Western Sahara Campaign UK is a preliminary ruling.
I. Facts and context
Western Sahara was colonised by the Kingdom of Spain at the end of the 19th century before becoming its province; in 1963 it was added by the United Nations (UN) to the list of non-self-governing territories (as provided by Article 73 of the United Nations Charter), on which it still appears to this day. Competing claims between Morocco and Mauritania over the sovereignty of the territory led to a request for an advisory opinion from the International Court of Justice (ICJ). The 1975 opinion concluded that neither neighboring state had a sovereign title to the territory, and called for the realization of the self-determination of the indigenous Sahrawi people. The King of Morocco called for the organisation of a march, in which 350 000 persons took part. On 6 November 1975, the UN Security Council adopted Resolution 380 (1975) in which it ‘deplor[ed] the holding of the [announced] march’ and ‘call[ed] upon [the Kingdom of] Morocco immediately to withdraw from the territory of Western Sahara all the participants in [that] march’. In November 1975, a Declaration of Principles on Western Sahara was concluded in Madrid between Spain, Morocco and Mauritania (“the Madrid Agreement”), whereby the powers and responsibilities of Spain, as the administering Power of the Territory, were transferred to a temporary tripartite administration. In February 1976, Spain informed the Secretary-General that as of that date it had terminated its presence in Western Sahara and relinquished its responsibilities over the Territory, thus leaving it in fact under the administration of both Morocco and Mauritania in their respective controlled areas. In the meantime, an armed conflict had begun in the region between the Kingdom of Morocco, the Islamic Republic of Mauritania and the Front Polisario, the Sahrawi national liberation movement. In 1979, Mauritania concluded a peace agreement with Polisario under which it renounced any territorial claim to Western Sahara. Following the withdrawal of Mauritania, Morocco has administered the Territory of Western Sahara alone. On 21 November 1979, the General Assembly of the UN adopted Resolution 34/37 in which it ‘reaffirm[ed] the inalienable right of all peoples of the people of Western Sahara to self-determination and independence, in accordance with the Charter of the [UN] … and the objectives of [its] resolution 1514 (XV). The conflict between the Kingdom of Morocco and the Front Polisario continued until, on 30 August 1988, the parties accepted, in principle, the proposals for settlement put forward, in particular, by the UN Secretary-General and providing, in particular, for the proclamation of a ceasefire and the organisation of a referendum on self-determination under UN supervision. To the present day, that referendum has still not been held.
B) Factual background of the case
Western Sahara Campaign UK (WSC) is a voluntary organisation supporting the recognition of the right of the people of Western Sahara to self-determination. WSC has brought two related claims before the High Court (Queens Bench – Administrative Division) 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’). In the first action 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. The NGO considered that the abovementioned instruments are contrary to Article 3(5) TEU. According to WSC, the inclusion of Western Sahara and the adjacent waters within their territorial scope is manifestly incompatible with international law. WSC argued the agreements in question were not concluded on behalf of the people of Western Sahara nor in consultation with its representatives. Last, there is no evidence that the people of Western Sahara have derived any benefit from those three international agreements.
In 2016, the UK High Court of Justice decided to stay the proceedings and to refer to the CJEU four questions for a preliminary ruling. The first two concerned the interpretation and validity of the Association Agreement (AA), whereas the latter two concerned the validity of the FPA and the various acts of secondary legislation associated with it. It is important to note that the FPA, the 2013 Protocol and its annexes form part of the Association Agreement. After the judgment of the Court, Grand Chamber, in Council v. Front Polisario, the referring court withdrew its first two questions. The two remaining questions were formulated as follows:
- Is the Fisheries Partnership Agreement valid in light of the self-determination principle and to what extend was it concluded to benefit the Sahrawi people?
- Is the applicant entitled to challenge the validity of EU acts based on breaches of international law allegedly committed by the EU when Morocco is not part of the proceedings?
Given that this was the first request for a preliminary ruling on the validity of the international agreements concluded by the Union and their acts of conclusion, it raised new procedural questions related the court’s jurisdiction and the conditions that 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.
II. Applicable law
In both Council v Polisario and Western Sahara Campaign cases, the Court had to interpret the provisions relating to the territorial scope of application of certain international agreements concluded between the EU and the Kingdom of Morocco. In Western Sahara Campaign UK it was the EU-Morocco Association agreement and more precisely article 94 which states that ‘this Agreement shall apply, […] to the territory of the Kingdom of Morocco’. The other two instruments are the FPA and its 2013 Protocol. According to article 2a) of the FPA entitled “Definitions” “Moroccan fishing zone’ is to mean, for the purposes of that agreement, the protocol and the annex thereto, ‘the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’. Article 11 of the FPA, headed ‘Area of application’, states that that agreement is to apply, as regards the Kingdom of Morocco, ‘to the territory of Morocco and to the waters under Moroccan jurisdiction’.
In interpreting these provisions the Court relied on certain rules and principles of international law such as the principle of self-determination as well as several rules of the Vienna Convention on the Law of Treaties. Article 29 “Territorial scope of treaties” of the Vienna Convention states that: “Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.” Article 31 contains the general rule on interpretation “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.”
III. A brief overview of the judgment in Council v Front Polisario case
The Court reached the conclusion that the Liberalisation Agreement is not applicable to the territory of Western Sahara and held that Polisario cannot be regarded as having standing to seek annulment of the secondary legislation related to its conclusion thus setting aside the judgment of the General Court and declaring Front Polisario’s action inadmissible. The Court’s reasoning was widely commented and debated in EU and international law scholarship. The Grand Chamber’s reliance on an excessively formalist interpretation, which can hardly be considered to be compatible with the law of treaties was heavily criticized in the doctrine. It criticized the General Court for not applying article 31(3)(c) Vienna Convention and used the latter as a building block which structured (or stitched together) the chain of reasoning.
A) Article 31(3)(c) of the Vienna Convention on the Law of Treaties: an expandable suitcase?
The Court used article 31(3)(c) also known as the ‘systemic integration rule’ as a vehicle through which it introduced three general principles of international law as the starting point for its analysis: the principles of (1) self-determination; (2) the territorial scope of treaties; and (3) the pacta tertiis rule (principle of the relative effect of treaties).
(1) Self-determination occupies a rather peculiar place in the reasoning of the Court. On the one hand the Grand Chamber found that self-determination is not only a principle of customary international law but also “a legally enforceable right erga omnes and one of the essential principles of international law”, which applies in the relations between the EU and Morocco. It criticized the General Court for not taking it into account. On the other hand the Court did not draw the consequences of the erga omnes character of the norm thus detaching the substance of the rule from its effects. In the view of the Court it seems, the principle of self-determination was relevant only in regard to interpreting the territorial application of the treaty. Thus, the Court used self-determination as a tool to reach the conclusion that the agreement in question was not of “direct concern” to Polisario, and prevented it from challenging an EU act that infringes on that very right.
(2) On a next place, The Court interpreted Article 29 VCLT to mean that a treaty is “generally binding on a State in the ordinary meaning to be given to the term ‘territory’, combined with the possessive adjective ‘its’ preceding it, in respect of the geographical space over which that State exercises the fullness of the powers granted to sovereign entities by international law, to the exclusion of any other territory, such as a territory likely to be under the sole jurisdiction or the sole international responsibility of that State.” Thus, because Western Sahara was not explicitly included, article 94 of the Association Agreement must be interpreted as not applying to this territory.
(3) The next rule ‘imported’ through the use of article 31(3)(c) is the pacta tertiis rule. The General Court had concluded that pacta tertiis was not a relevant for the present case butthe Grand Chamber reached the opposite conclusion. It bears noting that thе pacta tertiis principle was first applied by the CJUE some years ago in the Brita case. The situation in Brita was quite different from Western Sahara. In Brita the Court was confronted with a preliminary ruling concerning the Association Agreement with Israel. The question was whether a German company’s imports from the West Bank were regulated by this agreement or by the EU’s association agreement with Palestine (PLO). The Court had concluded that the EU-Israel Association Agreement could not be applied to the territory of the West Bank since doing so would impose an obligation on the Palestinian customs authorities to refrain from exercising the competence conferred upon them. In the terms used by the Court, if the agreement with Israel is found to be applicable to products originating from the West Bank, “would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the EC-PLO Protocol. Such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would thus be contrary to the principle of general international law, ‘pacta tertiis nec nocent nec prosunt’, as consolidated in Article 34 of the Vienna Convention”. In the Council v Front Polisario the Court found that the pacta tertiis rule has to be taken into account because the population of Western Sahara enjoys the right to self-determination and therefore, it must be considered a “third party” within the meaning of this principle. Interpreting the Association Agreement as applying to the territory of Western Sahara without its consent would constitute a violation of that principle. Interestingly in both Brita and Polisario cases, the Court refers to pacta tertiis as a principle related to the obligations on “third parties,” whereas Article 34 of the Vienna Convention refers to “third states.” The Convention is very clear: under Article 2(1)(h) “Third State” is defined as “a State not a party to the treaty.”
B) Subsequent practice and acquiescence
The second important aspect related to the interpretive method of the Court in this case is the analysis on “subsequent practice”. The General Court took into account the practice of the parties in applying the Association Agreement to interpret the territorial application of the Liberalisation Agreement. However, there seems to be a contradiction in the reasoning of the Court on this matter. First, in paragraph 122 it reproached the General Court for not pursuing “the question whether, in certain cases, that application reflected the existence of an agreement between the parties to amend the interpretation of Article 94 of the Association Agreement”. Three paragraphs later, it stated that the General Court erred in law in holding that the conduct in question constituted subsequent practice.
Silence can constitute agreement ‘where it is clear that the circumstances were such as called for some action, within a reasonable period’, otherwise the State confronted with a certain subsequent conduct by another party ‘must be held to have acquiesced. This echoes the maxim used by the International Court of Justice in the Preah Vihear case: Qui tacet consentire videtur si loqui debuisset ac potuisset. However, the Court found that the de facto application throughout several years does not amount to ‘subsequent practice’. It reached this conclusion with the help of an unusual, even scholastic and teleological reasoning. In paragraphs 123 and 124 of the judgment the Grand Chamber went on to hold that this practice did not count as “subsequent practice in the application of the treaty” because such application “would necessarily have entailed conceding that the European Union intended to implement those agreements in a manner incompatible with the principles of self-determination and of the relative effect of treaties, even though the European Union repeatedly reiterated the need to comply with those principles, as the Commission points out”.
As already mentioned, the Council v Polisario judgment was subject to strong critiques mainly for the teleological interpretative method favouring a rather formalistic use of general principles to the detriment of the intention of the parties. The judgment is also revealing for the uneasiness which the Court experiences in its attitude towards international law. Formally the decision is based on international law, which does not necessarily mean that the Court is more Völkerrechtsfreundlich or less dualist. The Court applied the rules of the Vienna Convention on the Law of Treaties à la carte and instrumentalized international law, thus affecting the overall persuasiveness of its reasoning. Taken at face value, its position seems to be that the EU cannot possibly violate an international obligation because in its founding treaties States that the respect for international law is a core value. This rather circular reasoning resembles the dogma of the Papal infallibility or the maxim ‘The King can do no wrong’.
In conclusion, in the Council v Polisario decision no one leaves empty handed but no one is fully satisfied either: on one hand the EU-Morocco trade relations were preserved and no bilateral agreement needed to be renegotiated. On the other hand apparently any future de facto application was excluded. Polisario did not manage to annul the instruments but it scored two important points: the Court recognised the inapplicability of the agreements to Western Sahara and its distinct status under international law.
IV. The Opinion of the AG Wathelet in Western Sahara Campaign UK case
This was the second opinion of the AG Wathelet in a Western Sahara-related case. The contrast between the rich and detailed reasoning of the AG and the relatively short judgment makes the reading of the opinion as important as the decision itself. The opinion is imbued with extensive referencing to international law, in particular to the case law of the ICJ. It reflects the genuine intention of the AG to use and interpret the rules of international law through the prism of international law and not through the lenses of the EU legal order. For the sake of brevity I will focus only on the issues of substantive law. It must be noted that the opinion in the this case differs significantly from his conclusion in the Council v Polisario where the AG found that the Liberalisation Agreement concluded between EU and Morocco is not applicable to Western Sahara and therefore, the annulment of the contested decision is not of direct and individual concern to Polisario. In the present case he takes the opposite view.
The AG concluded that the case was admissible. He rejected the submissions by the Council, Commission and the intervening Member States and proceeded to identify the relevant rules of customary law allowing for judicial review. From the outset he clearly states that an interpretation of the Fisheries Partnership Agreement (FPA) and the 2013 Protocol consistent with the rules on the interpretation 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. From the charts indicating the fishing zones, provided by the Commission, the AG concludes that in three fishing zones the agreement is de jure applicable to the waters adjacent to Western Sahara while fishing zone 6 covers the same waters by subsequent agreement between EU and Morocco. The quantities of catch per fishing zone confirm that the Fisheries Agreement and the 2013 Protocol apply almost exclusively to the waters adjacent to Western Sahara.
His second argument is that the FPA and the 2013 Protocol are based on the practice of their predecessors and they “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 EU”.
Thirdly and most importantly, the AG refers to the provision of article 31(4) VCLT which gives fundamental importance to the intentions of the parties. The AG states that Morocco considers that Western Sahara comes under its sovereignty and that, consequently, the waters adjacent to Western Sahara are covered by the scope of the FPA and the 2013 Protocol. Then he turns to the position of the EU to find that the declarations made by several of Member States within the Council on the occasion of the approval of the 2013 Protocol made it clear that for those States both the Protocol and the Fisheries Agreement are applicable to Western Sahara.
Thus, contrary to his conclusion in Council v Polisario case, the AG took the firm position that “the parties’ intention seems to me to be manifestly established”. According to him, the common intention of the EU and Morocco regarding the application of the agreement to Western Sahara and to the adjacent waters can be deduced. Having stated that, the AG proceeds to the question 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.
The AG devotes several paragraphs on the possibility of relying on customary international law rules and especially on the right to self-determination, basing himself on the findings of the Court in Council v Polisario that “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”. The Council and the Commission argued that unlike the Association Agreement, the FPA and the 2013 Protocol are applicable to the Western Sahara. The Association Agreement 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, with Articles 29 and 34 VCLT. The solution envisaged by the institutions in order to render the application of the Association Agreement to Western Sahara consistent with the judgment in Council v Front Polisario would be to extend its scope by agreement in the form of an exchange of letters between the EU and Morocco so that Western Sahara would be expressly covered. The AG was not persuaded by this argument. He stated that:
145 […] 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 and authorises the exploitation by the European Union 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 first part of his analysis, the AG found that the fisheries exploitation of the waters adjacent to Western Sahara established and implemented by the contested acts does not respect the right of the people of that territory to self-determination. He then used the principle that ‘land dominates the sea’ and because he already had concluded that the agreements are applicable to the territory of Western Sahara, recognition of sovereignty over the land entails recognition of sovereign rights over the sea and vice versa. After a detailed analysis of the main instruments regulating the law of the sea he concludes that “the use of the expression ‘waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’ constitutes recognition of the exercise by Morocco of sovereign rights over Western Sahara and the waters adjacent thereto.” 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 FPA and the 2013 Protocol confer on the Kingdom of Morocco.
The AG rejected the ‘theory’ maintained by several participants in the case that the Kingdom of Morocco is the ‘de facto administering power’ or ‘occupying power’ of Western Sahara and that it can conclude treaties in that capacity. He stated that such a concept does not exist in international law and that only the UN General Assembly has the power to recognise a territory as non-self-governing and, accordingly, to identify its administering power.
After a meticulous analysis on the applicability of the international humanitarian law to the territory of Western Sahara, the AG concluded that the wording of the Fisheries Agreement and the 2013 Protocol does not expressly state that those instruments were concluded with Morocco in its capacity of occupying power. “On the contrary, to all appearances, the Kingdom of Morocco concluded those agreements as the sovereign of Western Sahara. Consequently, […] 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”. 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. The contested acts do not comply with either the principle of permanent sovereignty over natural resources 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. The FPA and the 2013 Protocol are thus incompatible with the provisions in the founding treaties which impose on the European Union a requirement that its external action strictly observe international law. As for the limitations on the obligation not to recognise an illegal situation, it is interesting to note that the AG recalled the Anastasiou judgment. There, the Court had rejected the Commission’s attempt to justify the acceptance by the UK customs authorities of movement certificates for agricultural products originating in occupied Cypriot territory issued by the so-called TRNC, an entity not recognised by the European Union and its Member States.
In conclusion, the AG confirmed the test for reliance on international law in the context of the judicial review of international agreements concluded by the EU and the EU acts approving or implementing such agreements: first, the Union must be bound by the rule relied on, second, its content must be unconditional and sufficiently precise and, third, its nature and its broad logic must not preclude judicial review of the contested act. For the AG, the Court should set aside the Monetary Gold principle as inapplicable in the context of the EU international agreements. Нe concluded that the FPA and the 2013 Protocol are incompatible with the relevant TFEU provisions and the contested legislative acts are invalid.
V. The judgment of the Court (Grand Chamber)
The Court found that it has jurisdiction both in the context of an action for annulment and in that of a request for a preliminary ruling to assess whether an international agreement concluded by the EU is compatible with the Treaties. Certain jurisdictional issues deserve to be discussed before addressing the substantive questions.
As the AG states in his opinion, Western Sahara Campaign UK is the first case where a preliminary ruling is sought on the validity of international agreements concluded by the Union. In that sense the situation with which the Court is confronted, is unprecedented and unique. This would require for the Court to navigate in the rather dire straits of jurisdiction. On one hand the Court was not obliged to respect the Monetary Gold rule, developed in the case law of the ICJ, according to which the ICJ 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. From the point of view of international law, even if the application of the Monetary Gold could not be considered as an ‘authoritative’ binding precedent, it certainly can be seen as a ‘persuasive’ one and it could and should have been taken into account already before addressing the substantive questions. The Court however, structured its judgment in such a way that it did not need to actually assess the validity of the agreement, or to discuss the applicability of the Monetary Gold rule. This is to be regretted as this fourth question is directly related to the issue of jurisdiction. For at least a couple of reasons the reasoning of the Court is problematic. They are mainly related to the international law aspects of the decision and the relationship between the EU legal order with international law. First, even if the Court does not speak directly of “invalidating” international agreements, the consequence of its legal review is that in case of incompatibility would incur the obligation to renegotiate or terminate the agreement which may have serious consequences for the bilateral relations of the EU and its counterpart. The distinction between interpreting agreements and reviewing agreements for compatibility with the founding Treaties a posteriori threatens considerably the legal security of the international agreements concluded by the Union with third States. In theory, at least, anyone apparently can challenge the validity of those agreements before the Court and any agreement can potentially be found to be “incompatible” in any moment. The consequences of this would have an impact on the rights and obligations of third States without they actually being a party to the proceedings. As for the Monetary Gold principle, which (as it was already mentioned), was developed by the case law of the ICJ and is not a binding as such on the CJEU, it is a principle that cannot be avoided from the perspective of international law. Through the lenses of the judicial review of the EU external action as regards treaty making it could be, as the opposite would mean that no such review could ever be conducted. However, this demonstrates the clash of two completely different logics. If the Court finds that it has no jurisdiction it would be accused of denial of justice. If it annuls the decision for the conclusions of the agreement it might be accused of breaching the interests of a third State not party to the proceedings. By holding that it has jurisdiction, the Court basically gave an implicit answer to the fourth question asked by the referring court. The only thing a third party could do is to intervene in the proceedings and then to be bound by the judgment which is something that in most cases it would be not particularly willing to do. In his Opinion the AG says that :
“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’”.
In international law the grounds for invalidating a treaty are numerus clausus and one cannot invent new ones. If it does, this might constitute a violation of international law as it would mean that EU relies on its internal law in order to avoid its international obligations. Of course according to the founding treaties the incompatibility must be eliminated through renegotiation or termination. In any case, in such delicate situations it seems that the provision of article 218.11 according to which “A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties”, is the most appropriate way to ensure the legal security and predictability of the agreement in question.
The Court started its analysis by observing that :
the premiss that the Fisheries Partnership Agreement and the 2013 Protocol permit the exploitation of the natural resources in the waters adjacent to the territory of Western Sahara […] itself implies that those waters are included with the territorial scope of both that agreement and that protocol, with the result that vessels flying the flags of the Member States can enter those waters, by virtue of those two international agreements, in order to exploit the resources at issue.
The next paragraph is the shortest in the whole judgment and consists of a single phrase: “However, such a question concerning validity arises only if the premiss on which it is based is correct”. This paragraph has the literary value of Chekhov’s phrase on the rifle in the first act of a play, which has to go off in the third. Unsurprisingly, the Court finds the premiss is not correct.
1) The territorial scope of the Fisheries Partnership Agreement
In its analysis the Court departs completely from the opinion of the AG because it is heavily based on the judgment in Council v Polisario. The Court first relied on the overall structure of the EU-Morocco agreements and observed that both the FPA and the 2013 Protocol form part of the Association Agreement. Because these instruments should be viewed as a whole, the provisions of the former must be interpreted as Article 94 of the latter. Then it repeated its argument from Council v Front Polisario on the impossibility of the EU to breach international law:
If the territory of Western Sahara were to be included within the scope of the Association Agreement, that would be contrary to certain rules of general international law that are applicable in relations between the European Union and Kingdom of Morocco, namely the principle of self-determination, stated in Article 1 of the Charter of the United Nations, and the principle of the relative effect of treaties, of which Article 34 of the Vienna Convention is a specific expression.
Thus the Court reached the conclusion that the territory of Western Sahara is not covered by the concept of ‘territory of Morocco’ within the meaning of Article 11 of the FPA. Unsurprisingly and contrary to the AG’s opinion who also relied on an interpretation of UNCLOS (to which the EU is party and is explicitly present in the FPA), the Court reached the conclusion that the waters adjacent to the territory of Western Sahara are not part of the Moroccan fishing zone referred to in Article 2(a) of the FPA.
Then the Court considered it necessary to inquire whether EU and Morocco had intended to give a special meaning to the term “jurisdiction” according to article 31(4) VCLT. It swiftly concluded that if the expression ‘waters falling within the sovereignty … of the Kingdom of Morocco’, used in the Fisheries Partnership Agreement understood the waters adjacent to Western Sahara, this must be contrary to the rules of international law. “Consequently, the European Union could not properly support any intention of the Kingdom of Morocco to include, by such means, the waters in question within the scope of that agreement”.
The Court rejected the institutions’ argument that Morocco might be regarded a ‘de facto administrative power’ or as ‘occupying power’, thus extending ‘waters falling within the jurisdiction of Morocco’ to Western Saharan waters since Morocco has categorically denied that it is an occupying power or an administrative power with respect to the territory of Western Sahara”. Basically the Court is saying that the joint intention is absent because the EU institutions qualify Morocco as a “de facto administering power” which Morocco rejects because it considers Western Sahara as a part of its territory which in its turn is something that the EU institutions tacitly disagree with, presenting their attitude as “mere tolerance”.
2) The territorial scope of the 2013 Protocol
Unlike the FPA, the 2013 Protocol does not contain any specific provision that determines its territorial scope. However, several provisions contain the expression ‘Moroccan fishing zone’. The Court transposed its reasoning from the previous section and concluded that the expression ‘Moroccan fishing zone’, for the purposes of the 2013 Protocol, does not include the waters adjacent to the territory of Western Sahara. The Court refused to take into account the geographical coordinates of the fishing zone submitted by Morocco one day after the entry into force of the Protocol. It closed the chapter by stating that the premiss underlying the doubts of the High Court “is in fact incorrect”. Thus, it found that none of the relevant EU Regulations implementing the Agreement and the Protocol were invalid through the application of Art. 3(5) TEU.
The outcome of the judgment would hardly surprise anyone. The Court’s rather succinct and terse decision allows it to pass in silence several important issues such as the Monetary Gold principle, the silence of the EU institutions and the possibility to consider the latter as constituting the subsequent ‘tacit’ agreement or subsequent practice in the sense of article 31(3)(a) or (b). The seeds planted in Council v Front Polisario a year later turned into an impenetrable jungle and served to obscure the already complex legal landscape meticulously depicted by the AG.
The importance of the present decision lies, first of all, in the fact that this is the first request for preliminary ruling concerning the validity of international agreements concluded by the EU and their acts of conclusion. The Court readily accepted that it has jurisdiction to give preliminary rulings on the interpretation and validity of all EU acts, ‘without exception’ and firmly established its jurisdiction to review the instruments in question in light of international law. This is in line with the recent case-law that provides for the Court’s comprehensive jurisdiction, especially in light of the finding that the Treaties have created a ‘complete system’ of legal remedies designed to ensure judicial review of the legality of EU acts, entrusted to the Courts of the EU.
Secondly, with this judgment the Court consolidated its position on the complex issue of Western Sahara, although as it was pointed out by commentators, matters such as product labelling, effective control of products, and preferential tariffs remain to be solved. Thirdly, even if it seems that the Court is willfully blurring the boundaries between application and applicability, it seems that any future de facto application of the agreements is out of question.
The judgments related to Western Sahara and the EU-Morocco bilateral relations demonstrate the continued reluctance of CJEU to look at, interpret and apply international law rules through the lenses of international law. The teleological interpretation of the CJEU reveals the gap between legitimacy and persuasiveness, de jure and de facto, values and Realpolitik considerations. The contrast between the reasoning of the General Court based on EU law and the reasoning of the Court which used essentially international law rules is stark and telling on the attitude of the latter towards this issue.
It is unlikely that this would be the last decision on Western Sahara as in April and June 2018 Polisario submitted two more applications. The first one is seeking the annulment of the Council Decision 2018/146 of 22 January 2018 on the conclusion of the Euro-Mediterranean Aviation Agreement between the European Community and its Member States and Morocco. The second is seeking to annul the Council’s 2018 decision authorising the Commission to open negotiations, on behalf of the EU, for the purposes of amending the FPA and concluding a Protocol with Morocco. In July 2018, the General Court dismissed the application requesting the annulment of a Council decision on the conclusion of the Protocol between the EU and Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the EU and Morocco. It relied on the findings in Council v Front Polisario and Western Sahara Campaign UK and held that Polisario cannot be regarded as having standing to seek annulment of the decision at issue. It seems unlikely that the two pending cases will have a different outcome. In any case it is to be expected that Polisario would use any opportunity to attack any new agreement between EU and Morocco basing itself on the conclusion reached by the Court in the 2016 judgment that any application of the agreement to the territory of Western Sahara would breach the international obligations of the EU. Meanwhile, the ‘lawfare’ strategy adopted by Polisario gave some results in South African Courts.
* Judicial Fellow at the International Court of Justice; PhD student at the University of Geneva. The usual disclaimer applies.
 Judgment of 21 December 2016 Council v Front Polisario (Grand Chamber), C-104/16 P, EU:C:2016:973.
 E. Kassoti, “Between Völkerrechtsfreundlichkeit and Realpolitik: The EU and Trade Agreements Covering Occupied Territories”, Italian Yearbook of International Law, vol.26, 2017, p.164.
 See J. Odermatt, “Council of the European Union v. Front Populaire pour la Libération de la Saguia-El-Hamra et Du Rio de Oro (Front Polisario)”, American Journal of International Law, Vol.111, 2017 , pp. 731-738 ; C. Beaucillon, “L’Aveu de la Princesse de Clèves: A propos de l’affaire C-104/16 P, Conseil de l’Union européenne c. Front Polisario, Grande Chambre, 21 décembre 2016, AFDI, 2018 F. Dubuisson and G. Poissonnier, « La Cour de justice de l’Union européenne et la question du Sahara occidental : cachez cette pratique (illégale) que je ne saurais voir », RBDI, 2016, pp.599-635. See also the blog posts by A.-C. Prickartz and S. Hummelbrunner in the European Law Blog: https://europeanlawblog.eu/tag/c-266-16-western-sahara-campaign-uk/ and https://europeanlawblog.eu/tag/c-10416-p-council-v-front-polisario/ ; the comments by Markus Gehring in EU Law Analysis: https://europeanlawblog.eu/tag/c-10416-p-council-v-front-polisario/ and http://eulawanalysis.blogspot.com/2018/03/court-of-justice-further-clarifies.html
 I. Manners, “Normative Power Europe: A Contradiction in Terms?”, Journal of Common Market Studies, vol. 40, 2002, pp. 235-258. See also E. Kassoti, op.cit.
 This short summary of the facts is based on certain sections in the letter of the UN Under-Secretary-General for Legal Affairs, the Legal Counsel Hans Corell, addressed to the President of the Security Council of 29 January 2002 S/2002/161 and the judgment of the Court in Council v Polisario. The letter was referred to by the AG in his opinion in the Case C-266/16 Western Sahara Campaign UK in paras. 131, 230 and 247 and in footnotes to his opinion in Council v Polisario. It is not mentioned by the Court but it is referred to explicitly by the Court of First Instance in paras.207-210 and 222-224 and 229. The letter was in response to a request from the members of the Security Council for the opinion of the Under Secretary General for Legal Affairs on the lawfulness of the decisions taken by the Moroccan authorities concerning the offer and signature of contracts for the prospection of mineral resources in Western Sahara made with foreign companies. The UN Legal Counsel reviewed the rules of international law, the case-law of the International Court of Justice, and the practice of the States as regards that matter.
 Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 12; in par.162: ‘The materials and information presented to the Court show 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. They equally show the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara. On the other hand, the Court’s conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) [of the UN General Assembly] in the decolonisation of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory…’
 Morocco 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 of the Charter of the United Nations.
 5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
 More specifically, with the right to self-determination, Article 73 of the Charter of the United Nations, the provisions of the Convention on the Law of the Sea and the obligations incumbent on States and other subjects of international law to bring to an end a serious breaches of a peremptory norm of international law, not to recognise an illegal situation resulting from such a breach, and not to provide assistance for the commission of an internationally wrongful act.
 The Association Agreement was concluded in Brussels on 26 February 1996. It established an association between the European Community and the European Coal and Steel Community and their Member States, of the one part, and the Kingdom of Morocco, of the other. The Association Agreement with Morocco is subdivided into eight titles relating, respectively, to the free movement of goods, the right of establishment and services, payments, capital, competition and other economic provisions, economic cooperation, social and cultural cooperation, financial cooperation and, lastly, institutional, general and final provisions. As mentioned by the Court in par.39 of the Western Sahara Campaign UK decision, “ par.143. al Agreement of 2008. influenced by this Bilateral Agreement of 2008. cle 36 and India asserts that its rights under A[s]ince the date when the request for a preliminary ruling was lodged, the Court has held that the Association Agreement is to be interpreted, in accordance with rules of international law that are binding on the European Union, as meaning that that agreement is not applicable to the territory of Western Sahara. Since the first two preliminary questions concerned precisely the applicability of the Association Agreement, the referring Court deemed it unnecessary to maintain them and the questions were withdrawn. The effect if the judgment of 2016 could be seen as having the effect of res judicata although res judicata was formally not an issue.
 The FPA was initially accompanied by a protocol (the initial protocol), the purpose of which was to determine, for a period of four years, the fishing opportunities provided for in Article 5 of that agreement. That initial protocol was replaced by a further protocol which, in its turn, was replaced, in 2013, by the Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the FPA between the European Union and the Kingdom of Morocco (OJ 2013 L 328, p. 2; ‘the 2013 Protocol’). That protocol was approved by Decision 2013/785 and entered into force on 15 July 2014, as notified in the Official Journal of the European Union (OJ 2014 L 228, p. 1).
 Opinion of the AG, par.2.
 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)
 See Article 1 of the Charter of the United Nations which states that:‘The Purposes of the United Nations are:
… 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples …
 The agreement concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products was signed in Brussels on 13 December 2010 (OJ 2012 L 241, p. 4, ‘the Liberalisation Agreement’) and was approved on behalf of the European Union by Council Decision 2012/497/EU of 8 March 2012. In accordance with the terms thereof, it entered into force on 1 October 2012, as is apparent from the notice published in the Official Journal of the European Union (OJ 2012 L 255, p. 1).
 Judgment of 21 December 2016 C-104/16 P Council v Polisario, par.132.
 Ibid., par. 133.
In his commentary J. Odermatt writes: “By denying Front Polisario’s standing, the CJEU was able to maintain the appearance of supporting the principle of self-determination and international legality, while at the same time avoiding these more delicate legal and political questions. The CJEU was right to find that the Liberalisation Agreement did not apply to the territory of Western Sahara. Yet this does not necessarily mean that Front Polisario was not “specifically affected” by the Council decision approving the agreement. The CJEU fails to explain why the issue of Front Polisario’s standing, an issue of EU procedural law, is dependent entirely on the Agreement’s territorial application, an issue of international law.” op.cit., p.737.
 F. Dubuisson and G. Poissonnier, « La Cour de justice de l’Union européenne et la question du Sahara occidental : cachez cette pratique (illégale) que je ne saurais voir », RBDI, 2016, pp.599-635.
 Ibid., p.602
 Judgment, par. 88. The Court referred to the case law of ICJ judgment in East Timor (Portugal v Australia).
 Ibid., par.89.
 J. Odermatt, op.cit., p.736.
 Judgment Council v Polisario, par.95.
 Ibid., par.75 and 100.
 Judgment of the Court of 25 February 2010 in case C-386/08 Brita GmbH v Hauptzollamt Hamburg-Hafen EU:C:2010:91.
 Ibid., paras.52-3.
 Judgment, Council v Polisario, par.106.
 Ibid., par. 107.
 J. Odermatt, op.cit., p.736.
 Ibid. See the judgment in Polisario v Council, paras.101-3:
“101. Thus, in Article 94 of the Association Agreement with Morocco, the reference to the territory of the Kingdom of Morocco may have been understood by the Moroccan authorities as including Western Sahara or, at least, the larger part controlled by it. Although, as stated, the EU institutions were aware that the Kingdom of Morocco took that view, the Association Agreement with Morocco does not include any interpretation clause and no other provision which would have the result of excluding the territory of Western Sahara from its scope.
- Account should also be taken of the fact that the agreement referred to by the contested decision was concluded 12 years after the approval of the Association Agreement with Morocco and although the latter agreement had been implemented for the whole of that period. If the EU institutions wished to oppose the application to Western Sahara of the Association Agreement, as amended by the contested decision, they could have insisted on including a clause excluding such application into the text of the agreement approved by that decision. Their failure to do so shows that they accept, at least implicitly, the interpretation of the Association Agreement with Morocco and the agreement approved by the contested decision, according to which those agreements also apply to the part of Western Sahara controlled by the Kingdom of Morocco.
 Judgment Council v Polisario, par.122.
 Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, ICJ Reports 1962, p. 23. See also G. Nolte, “Jurisprudence of the International Court of Justice and Arbitral Tribunals of Ad Hoc Jurisdiction Relating to Subsequent Agreements and Subsequent Practice: Introductory Report for the ILC Study Group on Treaties over Time”. In G. Nolte (ed.), Treaties and Subsequent Practice, OUP, Oxford, 2013, p.193.
 In fact, as will be seen presently, an acknowledgment by conduct was undoubtedly made in a very definite way; but even if it were otherwise, it is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset”. Temple of Preah Vihear, I.C.J. Reports 1962, p.23.
 Ibid., par.123.
 See for example E. Kassoti, op.cit., pp.161-4.
 F. Dubuisson, op.cit., p.610.
 See G. Seidman, “The Origins of Accountability: Everything I know about the Sovereign’s Immunity, I learned from King Henry III”, St. Louis Law Journal, vol.49, 2005, p.396.
 It is worth mentioning that the Court followed his conclusions in the previous case Council v Front Polisario.
 The AG erroneously states that the Monetary Gold principle is “to be found in the statute of the International Court of Justice (Opinion AG, par.57).
 Opinion AG in Council v Polisario, par.114.
 As mentioned by the Court in par.17 of the judgment, “the purpose of that agreement was to intensify the working relationship between the European Union and the Kingdom of Morocco, particularly in the context of the Association Agreement, by establishing, in the fisheries sector, a partnership designed to promote responsible fishing in the Moroccan fishing zones and to implement effectively the Moroccan fisheries policy. To that end, the Fisheries Partnership Agreement establishes, inter alia, rules on economic, financial, technical and scientific cooperation between the parties, on conditions governing the access of vessels flying the flags of the Member States to Moroccan fishing zones, and on arrangements for the policing of fishing activities in those zones.”
 Opinion AG in Western Sahara Campaign UK, par.62.
 Opinion AG, par.70: 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 these instruments to the waters adjacent to Western Sahara is precisely what the parties envisaged from the outset.”
 Ibid., par.72.
 “A special meaning shall be given to a term if it is established that the parties so intended”.
 Opinion AG, par.73.
 http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2015723%202013%20ADD%201. The European Parliament had initially blocked the renegotiation of the Protocol and the Denmark and Sweden voted against the approval of the conclusion of that protocol, while Netherlands, Finland and the UK abstained and Germany, Ireland and the Republic of Austria expressed reservations.
 Ibid., par.75.
 Ibid. In paras.76-96 the AG makes several interesting observations on the possibility of relying on the rules of international law in order to challenge the validity of the EU secondary law. Note in particular the remark that the external action of the EU “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, no international court would have jurisdiction to adjudicate on such an infringement. (Par.82).
 Ibid., paras.99-129.
 Council v Polisario. paras.88-89.
 Opinion AG, paras.145.
 And the AG adds, “In the interest of completeness, […] 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 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.
 Opinion AG, par.147-186.
 Ibid., par.200.
 Ibid., par.210.
 Ibid., par.211.
 Ibid., par.255.
 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.
 Judgment of the Court of 5 July 1994 Case C-432/92 (Anastasiou), paras. 35 and 49. In 1994 the Court held that “the special situation of Namibia and that of Cyprus are not comparable from either the legal or the factual point of view. Consequently no interpretation can be based on an analogy between them.”
 Regarding jurisdiction, the Court on its established case law and concluded that it has jurisdiction, both in the context of an action for annulment and in that of a request for a preliminary ruling to assess whether an international agreement concluded by the European Union is compatible with the Treaties.
 Judgment, paras.42-51.
 See Case of the monetary gold removed from Rome in 1943 (Preliminary Question), Judgment, 1954, I.C.J. Reports 1954, p. 19 and East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90)
 See AG Opinion in Western Sahara Campaign UK case, par.49.
 See Article 27 of the Vienna Convention on the Law of Treaties.
 Ibid., par.55.
 Judgment, paras.60-61.
 Ibid., par.62.
 Ibid., par.64.
 Ibid., paras.65-69.
 Ibid., par.71.
 Ibid., par.72.
 Opinion AG: “Although the Commission recognises that the Association and Liberalisation Agreements have been applied to products originating in Western Sahara, it stated at the hearing that this was merely tolerance, which it has not contested, which it could have done on the basis of Article 86 of the Association Agreement, adding that its non-recourse to that provision did not constitute proof of its acceptance.”
 Judgment, par.81. The Protocol entered into force on 15 July 2014 and Morocco communicated the coordinates on 16 July 2014.
 Ibid., par.84.
 In 2018 the International Law Commission adopted a set of 13 draft conclusions and commentaries and decided, to recommend that the General Assembly take note in a resolution of the draft conclusions. http://legal.un.org/ilc/texts/1_11.shtml
 Judgment, par.44.
 Judgment of the Court (Grand Chamber) of 28 March 2017, C‑72/15 Rosneft, par.66 . See A. Prickartz and S. Hummelbrunner, “EU-Morocco trade relations, Western Sahara and international law: the saga continues in C-266/16 Western Sahara Campaign UK, available online at : https://europeanlawblog.eu/2018/03/28/eu-morocco-trade-relations-western-sahara-and-international-law-the-saga-continues-in-c-266-16-western-sahara-campaign-uk/
 The specific position of the Court as an in-between institution: half international, half federal, makes it impossible for it to look and apply international law as a genuine international tribunal.
 Case T-275/18 Front Polisario v Council.
 Case T-376/18 Front Polisario v Council.
 Order of 19 July 2018, Front Polisario v Council, T‑180/14, not published, EU:T:2018:496.
 D. Kennedy, “Lawfare and warfare”, in J. Crawford and M. Koskenniemi (eds.), The Cambridge Companion to International Law, Cambridge University Press, 2012, pp.158-184.
 T. Ruys, “The hunt for phosphate shipments from the Western Sahara and the curious case of the NM Cherry Blossom – whither State immunity and act of State?”, forthcoming in the International and Comparative Law Quarterly available online at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3220529