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Advocate-General gives opinion on the Saharawi people’s right to self-determination

Adviser to the EU's highest court gives opinion on trade ties between EU states and the people of Western Sahara

Map of Western Sahara

12 January 2018

European Union Court of Justice's Advocate General Melchior Wathelet has handed down his opinion this week on the legal claims by Western Sahara Campaign UK’s (WSCUK) before the European Court of Justice finding that the European Union had failed to respect the right of the people of Western Sahara to self-determination.

According to the law firm Leigh Day, which represented WSCUK, the Opinion is extremely significant in relation to all EU Agreements with third countries not only to the rights of the Saharawi people.

WSCUK 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 the territory by Morocco.

Leigh Day issued proceedings against DEFRA and HMRC on behalf of WSCUK arguing that the UK was unlawfully allowing products, originating from or processed in Western Sahara, to be imported into the UK under a trade agreement with Morocco.

WSCUK argued that as Moroccan territorial jurisdiction does not extend to the territory of Western Sahara this was unlawful. They also argued that in relation to fishing quotas offered under the EU-Moroccan Agreement as Moroccan territorial jurisdiction does not extend to the sea adjacent to Western Sahara.

The case was heard by the European Court of Justice in September 2017. Finding comprehensively in favour of WSCUK, the Advocate General found the European Union has failed to: “respect the right of the people of Western Sahara to self-determination... The European Union has failed to fulfil its obligation not to recognise the illegal situation resulting from the breach of the right of the people of Western Sahara to self-determination by the Kingdom of Morocco ...”

Rosa Curling from the public law team at Leigh Day, who represented WSCUK, said: “We are delighted the Advocate General has handed down such a clear and comprehensive Opinion that the current agreements between the EU and Morocco, as they impact on the territory of Western Sahara, are in breach of international law.

“This is the first time the CJEU has expressly recognised, as a matter of EU law, that EU institutions cannot be complicit in internationally wrongful conduct and that this question is entirely justiciable by the Court. “This profoundly important Opinion will affect the European Union’s conduct in relation to all agreements with third countries.”

John Gurr of WSCUK said: “This opinion confirms that as Western Sahara is legally defined as a non-self-governing territory by the United Nations that any trade agreements between Morocco and the European Union cannot apply to any items that originate in the Western Sahara.

“This merely confirms the clear position that under international law that the occupation of Western Sahara by Morocco is illegal.”

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