Western Sahara Campaign UK v Secretary of State for International Trade
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cockerill |
| Judgment Date | 05 December 2022 |
| Neutral Citation | [2022] EWHC 3108 (Admin) |
| Docket Number | Case No: CO/971/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
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[2022] EWHC 3108 (Admin)
Mrs Justice Cockerill
Case No: CO/971/2021
IN THE HIGH COURT OF JUSTICE
OF ENGLAND AND WALES
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London,
WC2A 2LL
Victoria Wakefield KC and Conor McCarthy (instructed by Leigh Day) for the Claimant
Sir James Eadie KC, Paul Luckhurst and Belinda McRae (instructed by Government Legal Department) for the Defendants and First Interested Party
Peter Turner KC and Jackie McArthur (instructed by Freshfields Bruckhaus Deringer) for the Second Interested Party
Hearing dates: 5, 6, 7 October 2022
Approved Judgment
INTRODUCTION
On 26 October 2019, Her Majesty's Government (“the Government”) concluded an “Association Agreement” with Morocco (“the UKMAA”) – a short form trade agreement designed to replicate EU association agreements from which the UK ceased to benefit at the end of the transition period following Brexit.
The UKMAA provides in terms for preferential tariffs to be applied to certain products originating in Western Sahara, the (“Joint Declaration”):
“This declaration is without prejudice to the respective positions of the United Kingdom with regard to the status of Western Sahara and of Morocco with regard to that region.
Products originating in Western Sahara subject to controls by customs authorities of Morocco shall benefit from the same trade preferences as those granted by the United Kingdom to products covered by this Agreement.”
The UKMAA is not the subject of this challenge.
The Treasury then made two instruments under s.9 of the Taxation (Cross-border) Trade Act 2018 (“the 2018 Act”). That section empowers the Treasury, on the recommendation of the Secretary of State, to make regulations to “ give effect” to arrangements between Her Majesty's Government and the government of another country or territory, conferring a preferential rate of import duty. When exercising any function under the s.9 power, s.28 of the 2018 Act requires that the Treasury and the Secretary of State “ must have regard to international arrangements to which Her Majesty's government in the United Kingdom is a party that are relevant to the exercise of the function”.
The two instruments made by the Treasury and now challenged (“the Regulations”) are the Customs Tariff (Preferential Trade Arrangements) (EU Exit) Regulations 2020 and the Customs (Tariff Quotas) (EU Exit) Regulations 2020. These brought into force a “Morocco Preferential Tariff” version 1.0 dated 7 th December 2020 and a “Morocco Origin Reference Document” version 1.0, dated 7th December 2020. These documents (explained further below) extend the preferential rate of import duty to goods originating in Western Sahara subject to controls by customs authorities of Morocco.
The challenge to the Regulations is brought by WSCUK, which is an independent voluntary organisation. It campaigns on matters of public interest in relation to Western Sahara, a Non-Self-Governing Territory (“NSGT”) over which Morocco claims sovereignty. WSCUK states that it works in solidarity with the Saharawi people to advance their right to self-determination and to promote their human rights. Its position is that, under international law, Morocco has no right to exercise sovereignty over Western Sahara or to exploit its resources unless acting with the consent of the people of that territory and for their exclusive benefit; which consent it says has not been obtained.
WSCUK brings this challenge to the regulations on the basis that the Government has acted outside the scope of its powers under s.9, or alternatively, that it acted inconsistently with the s.28 (“have regard”) obligation when drawing up those regulations.
The application for permission to bring a judicial review was granted in part by Chamberlain J in June 2021. The judicial review application is opposed by the Secretary of State for International Trade and His Majesty's Treasury with the support of (as Interested Parties) the Foreign, Commonwealth and Development Office and the Confédération Marocaine de l'Agriculture et du Développement Rural (“COMADER”) a Moroccan agricultural association whose members' economic activities in Western Sahara would be affected were the claim to succeed.
Although questions of justiciability might be said to logically come first, parts of those arguments overlap with issues of international law best dealt with as part of the substantive arguments. I will therefore deal with the issues in the following order:
BACKGROUND
The Position of Western Sahara
| Introduction | 3 |
| Background | 4 |
| The Position of Western Sahara | 4 |
| The Association Agreements and the EU decisions | 7 |
| The Regulations | 9 |
| The Issues | 11 |
| Summary of the Parties' cases | 11 |
| The Backdrop: Treaties and Domestic Law | 15 |
| Issue 1: Does Section 9 of the 2018 Act require the Court to interpret the relevant international arrangement? | 16 |
| Issue 2: The Proper Interpretation of the UKMAA | 20 |
| Issue 3: If matters of international law are relevant, what is the standard of review that applies? | 26 |
| Issue 4(a): Pacta Tertiis | 28 |
| Issue 4(b) – Self determination (resources) | 30 |
| Issue 5: Section 28 | 32 |
| Is The Challenge Justiciable? | 33 |
| Foreign Act of State | 33 |
| State Immunity | 35 |
| Conclusion | 35 |
Western Sahara is a territory in north-west Africa which was colonised by the Kingdom of Spain at the end of the 19th century before becoming a province of Spain; it was then added by the United Nations (“UN”) to the list of non-self-governing territories for the purposes of Article 73 of the United Nations Charter, on which it still appears to this day.
On 14 December 1960, the General Assembly of the UN adopted Resolution 1514 (XV), entitled “ Declaration on the granting of independence to colonial countries and peoples” (“Resolution 1514 (XV) of the General Assembly of the UN”), which states, inter alia, that “ all peoples have the right to self-determination [,] by virtue of [which] they freely determine their political status”, that “ immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire”, and that “ all States shall observe faithfully and strictly the provisions of the Charter of the United Nations … on the basis of respect for the sovereign rights of all peoples and their territorial integrity”.
On 20 December 1966, the General Assembly of the UN adopted Resolution 2229 (XXI) on the question of Ifni and Spanish Sahara, in which it “ reaffirm[ed] the inalienable right of the peopl[e] of Spanish Sahara to self-determination” and invited the Kingdom of Spain, in its capacity as Administering Power, to determine at the earliest possible date, “ the procedures for the holding of a referendum under [UN] auspices with a view to enabling the indigenous population of the Territory to exercise freely its right to self-determination”.
On 24 October 1970, the General Assembly of the UN adopted Resolution 2625 (XXV), entitled “ Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations”, by which it approved that declaration, the wording of which is appended to that resolution. That declaration states in particular that “ every State has the duty to promote [the right to self-determination of peoples] in accordance with the provisions of the Charter” and that “ the territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles”.
On 20 August 1974, the Kingdom of Spain informed the UN that it proposed to organise a referendum in Western Sahara under the auspices of the UN.
On 16 October 1975, the International Court of Justice, in its capacity as the principal legal body of the UN, and following an application submitted by the General Assembly of the UN as part of its work on the decolonisation of Western Sahara, handed down an Advisory Opinion (Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 12;), in paragraph 162 of which it found as follows:
“The materials and information presented to the Court show the existence, at the time of Spanish colonization, 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...
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