Case study: Sources and Actors of International Law – Applicability of treaties and international organisations decisions to disputed territories

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Case study: Sources and Actors of International Law – Applicability of treaties and international organisations decisions to disputed territories

 

On 10th of December 2015, the European Union General Court (EGC) quashed a free trade agreement between the European Union and Morocco, to the extent that it was to apply to the disputed territory of Western Sahara.^[1]

 

Background- The case before UK courts

 

Frente Polisario (the internationally recognized interlocutor of the Saharawi people) challenged the European Union Council Decision 2012/497/UE of 8 March 2012 before UK courts. The contested decision concerned an agreement between the EU and Morocco over reciprocal trade liberalisation measures. One of these measures consists of a preferential tariff administered by the UK HM Revenue and Customs department. The second measure relates to the application of an agreement between the EU and Morocco that implies fishing in the territorial waters of Western Sahara. Frente Polisario claimed before the UK courts that these measures breached the right to self-determination of Western Sahara. Since the measures challenged EU law, the UK court referred the case to the EGC to determine its legality.^[2]

 

The EGC judgment

 

The EGC considered the case admissible and concluded that the EU had not adequately evaluated the risk of indirectly encouraging human rights violations, or from benefiting from such violations. Accordingly, the EGC decided to annul the implementation of the EU Council of Ministers’ Decision.

 

Current status of the case (by 6 November 2016)

 

On 19 February 2016, the EU Council appealed the EGC judgment before the Court of Justice of the European Union (CJEU). Before issuing its final judgment (still pending) the CJEU requested the opinion of its Advocate General. The Advocate General, Melchior Wathelet, published his Opinion on 13 September 2016, where he concluded that Western Sahara is not part of Morocco’s territory and, therefore, neither the EU-Morocco Association Agreement, nor the Liberalisation Agreement are applicable to Western Sahara.^[3]

 

 

 

 

Essay Focus

 

The  main aim of this exercise is to assess your knowledge and understanding of legal subjects of international law as well as its sources. You must also demonstrate research skills using specialised databases to retrieve legal journal articles and other written sources (including primary sources of international law).

 

You are expected to analyse and evaluate the application of international law in this scenario to determine:

 

1. Legal status of Western Sahara, taking into account:
   1.  It has been recognised as a State by other States and it is a member of the African Union;
   2. It is listed as a Non-Self-Governing territory with the right to self-determination by the United Nations Decolonisation Committee.^[4]
   3. Legal status of national liberation movements such as Frente Polisario, considering the value, if any, of the ECG judgement regarding its legal personality.
   4. Compatibility of acts of organisations and other international agreements that may be incompatible with the right to self-determination.