U.K. High Court Rules West Sahara Trade Dispute Should Be Heard by the Court of Justice of the European Union (October 19, 2015) [1]
On October 19, 2015, the U.K. High Court (Court) ruled [3] that a suit brought by the Western Sahara Campaign UK (WSCUK or Campaign) against Her Majesty's Revenue and Customs (HMRC) and the Secretary of State for the Environment and Rural Affairs (DEFRA) regarding a trade agreement with Morocco should be heard by the Court of Justice of the European Union (CJEU). According to this statement [4] by Leigh Day, the firm representing WSCUK, the Campaign “is an independent voluntary organisation founded in 1984 with the aim of supporting the recognition of the right of the Saharawi people of Western Sahara to self-determination and independence and to raise awareness of the unlawful occupation of Western Sahara.” In 1975, the International Court of Justice issued an advisory opinion [5], finding that Western Sahara was not bound by legal or other ties to another state and that there was no legal title affecting sovereignty or ownership over the territory. The present case arose out of the importation of products “originating from or processed in Western Sahara” into the U.K. under an EU trade deal with Morocco, which the WSCUK claims is unlawful as “Moroccan territorial jurisdiction does not extend to the territory of Western Sahara or to the territorial sea adjacent to Western Sahara” and “[t]herefore, goods and products produced in Western Sahara should not to be treated as originating from Morocco for the purposes of preferential tariffs or any other benefits conferred upon Moroccan products by European Union.” The Court noted that “[i]t is common ground that only the Court of Justice of the European Union (CJEU) has competence to determine the legality of the disputed EU measures” and “conclude[d] that there is an arguable case of a manifest error by the Commission in understanding and applying international law relevant to these agreements.” The Court thus decided to refer the case to the CJEU, noting that “it is clear that the status of these agreements have been controversial” and stating that “[t]here would appear to be a strong public interest in ascertaining what the CJEU has to say on the question, thereby clarifying the limits of the Commission's broad powers in the sensitive arena of international relations.” Additionally, “the fact that trade agreements are made that benefit the population of the occupied territory generally without regard to the fact that some of the population are said to be present in the territory as a result of the original unlawful act may be evidence of a serious breach of international law.”