THE ECJ AS A GLOBAL JUS COGENS MAKER Enzo Cannizzaro University of Rome “La Sapienza

ART. 53 VIENNA CONVENTION A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. Focus on the notion of “conflict”

Jurisdictional immunity: 2014 (para 93) there is no conflict between those rules (rules of the law of armed conflict which prohibit the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour) and the rules on State immunity. The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State

The Front Polisario case THE FACTUAL BACKGROUND Western Sahara: Former colony relinquished by Spain 1976 occupied by Morocco 1975: ICJ Advisory Opinion Not terra nullius Not ties with Morocco or Mauritania Right to self-determination On the list of non-self-governing territories under Art. 73 UN Charter

The relations EU Morocco Association agreement (2000) Applicable to the “territory of the Kingdom of Morocco) Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco (2006) Applicable to the waters under the jurisdiction of Morocco Liberalisation agreement (2012) Applicable to the territory of the Kingdom of Morocco

The issue By concluding an agreement with Morocco, applicable to the territory of Western Sahara, has the EU breached the principle of self-determination (jus cogens) Is there a conflict between the agreement and jus cogens ? Paraphrasing Jurisdiction immunities: Do the “The two sets of rules address different matters”?

The EP legal service The principle of self-determination imposes obligations on Morocco “vis-à-vis the people of Western Sahara”, not on the EU Therefore: the consistency with international law of the EU fishery agreement depended on the implementation by the Moroccan authorities, and not on conducts performed by the EU Institutions

The UN Legal Counsel (2002) where resource exploitation activities are conducted in Non-Self-Governing Territories for the benefit of the peoples of those Territories, on their behalf or in consultation with their representatives, they are considered compatible with the Charter obligations of the administering Power and in conformity with the General Assembly resolutions and the principle of “permanent sovereignty over natural resources” enshrined therein.

The action for annulment On 19 November 2012 – Action for annulment under Art. 263 TFUE Admissible if the claimant is “directly and individually concerned”. Claim: Invalidity of the decision insofar as it was inconsistent with the principle of self-determination Subjective legitimacy: Was Front Polisario “directly and individually concerned” by the agreement ? It would be if Representative of the Saharawi people (easily solved) the agreement applied to Western Sahara

The General Court decision 1. On the admissibility: The liberalisation agreement applies to the territory of Wester Sahara Subsequent practice (Art. 31, par. 3, b), Vienna Convention Consequently the action is admissible 2. On the merits The agreement does not violate the principle of self- determination, in so far as it was concluded in the interest and to the the benefit of the Saharawi people The EU Institution should see to it that the Moroccan authorities implement the agreement in accordance with these principles

The ECJ decision (22 December 2016) Was the territory of Western Sahara included in the notion of “territory of Morocco”?  Par. 86: not subsequent interpretation, but contextual interpretation: Article 31(3)(c), pursuant to which the interpretation of a treaty must be carried out by taking account of any relevant rules of international law applicable in the relations between the parties Par. 88: The customary principle of self-determination … is, … a legally enforceable right erga omnes and one of the essential principles of international law

Conclusions Par. 89  In view of the separate and distinct status accorded to the territory of Western Sahara by virtue of the principle of self-determination, …, the words ‘territory of the Kingdom of Morocco’ set out in Article 94 of the Association Agreement cannot … be interpreted in such a way that Western Sahara is included within the territorial scope of that agreement.

The focal point of the case Subsequent practice vs. contextual interpretation Art. 31, par. 3, b) vs. Art. 31, par. 3 c) Factual context vs. legal context

Conflicts between means of interpretation The Vienna Convention does not formulate any rule to settle conflicts between diverging means of interpretation But, 1. Contextual interpretation means interpretation consistent with the principle of self-determination 2. in par. 88: the EJS stressed the jus cogens nature of self- determination: The customary principle of self-determination … is, … a legally enforceable right erga omnes and one of the essential principles of international law

Conclusions Contextual interpretation is mandatory if a treaty could be interpreted in accordance with jus cogens ? Otherwise, the treaty would be null and vois under Art. 53 of the Vienna Convention The ECJ has recognised that the agreement between the EU and Morocco could be potentially conflicting with jus cogens To avoid the conflict, the ECJ interpreted the agreement consisteny with jus cogens