Abstract
AbstractThis contribution focuses on the Court of Justice of the European Union (Court or CJEU) reliance on international law in cases involving economic agreements covering occupied territories. In its earlier case law, the Court adopted a formalistic approach by ignoring the broader international legal framework of the dispute in an effort to achieve conformity with international law, while at the same time avoiding being drawn into political storms. The article continues by identifying an even more worrisome trend in the Court’s latest judgments in theFront PolisarioandWestern Sahara Campaign UKcases. In these two cases the Court showed its willingness to stretch the international rules of treaty interpretation to a breaking point in order to avoid pronouncing on the politically sensitive question of the de facto application of the EU’s agreements with Morocco in the territory of Western Sahara. The article concludes by asserting that the Court’s line of argumentation brings another dimension to theVölkerrechtsfreundlichkeitdebate. The classical, binary understanding of the Court’s approach as ‘open/hostile’ to international law only provides us with a partial picture of how international law was actually used in these cases. The Court’s apparent willingness to rely on international law as a heuristic device to reinforce an outcome that radically departs from the logic and structure of international law and international legal argumentation requires a more in-depth engagement with both the content of the international law rules invoked in those judgments and with the Court’s use of such rules.
Highlights
The CJEU’s judgment in the Western Sahara Campaign UK case1 is the latest in a series of judgments, spanning over two decades, pertaining to different aspects of the EU’s economic agreements extending to occupied territories
The Court’s apparent willingness to rely on international law as a heuristic device to reinforce an outcome that radically departs from the logic and structure of international law and international legal argumentation requires a more in-depth engagement with both the content of the international law rules invoked in those judgments and with the Court’s use of such rules
The judgment followed a request for a preliminary ruling by the High Court of England and Wales in a case brought by Western Sahara Campaign UK, a voluntary organization whose aim is to support the right of the peoples of Western Sahara to self-determination
Summary
The CJEU’s judgment in the Western Sahara Campaign UK case is the latest in a series of judgments, spanning over two decades, pertaining to different aspects of the EU’s economic agreements extending to occupied territories. The failure to take into account the broader international legal framework of the dispute (including the status of Israel as an occupying power; the violation of the Palestinian peoples’ right to self-determination; and the concomitant obligation of non-recognition on the part of the EU) in interpreting the territorial scope of the EU-Israel Association Agreement leaves much to be desired.26 In this light, it is difficult to escape the conclusion that, by not relying more heavily on international law, the Court sought to achieve conformity with EU law while avoiding being drawn into contentious political issues.. The Court decided the matter solely with reference to the ‘politically-detached’ principle of pacta tertiis. The CJEU argued that the EU-PLO Association Agreement implicitly restricted the territorial scope of the EU-Israel Association Agreement. The failure to take into account the broader international legal framework of the dispute (including the status of Israel as an occupying power; the violation of the Palestinian peoples’ right to self-determination; and the concomitant obligation of non-recognition on the part of the EU) in interpreting the territorial scope of the EU-Israel Association Agreement leaves much to be desired. In this light, it is difficult to escape the conclusion that, by not relying more heavily on international law, the Court sought to achieve conformity with EU law while avoiding being drawn into contentious political issues. this judicial strategy severely undermines the normative power of European narrative and lends evidentiary force to the argument that the CJEU, in its practice, shows a great deal of ‘judicial recalcitrance’ towards international law.
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