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The European Union Approach Towards Western Sahara

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Edited By Marco Balboni and Giuliana Laschi

In the framework of the so-called Barcelona process, the European Union concluded several bilateral agreements with Morocco aimed to deepen their economic integration. The 2000 Association agreement European Union–Morocco is the general legal framework for the development of relationships among the two parties. In this context, the recent Agreement on reciprocal liberalisation measures on agricultural products and fishery products, entered in force in 2012, and the Fisheries Partnership Agreement, issued in 2013, were established. They reiterate and update former agreements. No one of them expressly excludes the territory of Western Sahara from the scope of application, in contrast with other similar agreements negotiated with other countries, such as the Free trade pact between Morocco and the United States of America. The non-exclusion of the territory of Western Sahara raises several concerns on the compliance of these agreements with International Law, not only in relation to the principle of self-determination of peoples but also with the principle of sovereignty of natural resources, the prohibition of exploitation of resources of a territory under occupation, the obligation to not recognise situations arisen in an illegal way, the prohibition to negotiate agreement with an occupying country once the process of decolonisation has begun.

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14. HIGH COURT OF JUSTICE, QUEEN’S BENCH DIVISION, ADMINISTRATIVE COURT, R (WESTERN SAHARA CAMPAIGN UK) V. THE COMMISSIONERS FOR HMRC AND THE SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS, [2015] EWHC 2898 (ADMIN).

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Introduction

1. The claimant 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 Western Sahara. It brings two related claims against each defendant pursuant to permission granted by Walker J on 23 April 2015.

2. Both claims contend that each defendant is acting unlawfully by applying provisions of EU law to matters within their jurisdiction. The Commissioners for Her Majesty’s Revenue and Customs (HMRC) are the defendants in the first application where what is challenged is the preferential tariff given on import to the United Kingdom of goods that are classified as being of Moroccan origin but in fact originate from the territory of Western Sahara. The second challenge is brought against the Secretary of State for the Environment and Rural Affairs (DEFRA) in respect of the intended application of the EU-Morocco Fisheries Partnership Agreement to policy formation relating to fishing in the territorial waters of Western Sahara.

3. Both decisions challenge acts of the European Union in making agreements with Morocco with respect to customs tariffs and fisheries that...

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