February 22, 2018
Guest post by Jean-Jacques Neuer, Lawyer-Solicitor
On 27 February, the European Court of Justice – ECJ – is about to pronounce a judgement invalidating all agreements made by the European Union with China because of the latter’s presence in Tibet, with Russia as it has annexed Crimea and with the United States, which does not recognise any right of self-determination by Native Americans. On the same date, the Commission is ready in the wake of this fundamental case-law to initiate a sanctions procedure against the United Kingdom which persists in affirming its presence in Northern Ireland and against Spain which refuses the right to the self-determination of Catalonia.
An absurd hoax? Not quite.
On 21 December 2016, the ECJ issued a judgement finding that the agreements concluded between the European Union and Morocco must respect the “relevant rules of international law applicable to relations between the Union and the Kingdom of Morocco ” and as a result the agreement did not apply” in the territory of Western Sahara” without the demonstration of the consent of a third party to the agreement, “the people of Western Sahara”.
Today, the High Court of Justice (in England & Wales) lodges an interlocutory question at the ECJ inviting it to give its position following the legal request of an association – the Western Sahara Campaign – on the latter’s right to challenge the validity of Union acts for non-compliance with international law and the validity of the fisheries agreement under Union law.
It is precisely in this context that the Advocate General of the European Court of Justice has published, on 10 January, an opinion which, going a step further than the 2016 judgement, considers that the fisheries agreement concluded between the EU and Morocco is invalid as it applies to Western Sahara and adjacent waters.
As we understand it, behind this obscure quarrel about fish, it relates to the Court of Justice giving judgement that the presence of Morocco in Western Sahara is contrary to international law and particularly to the right of peoples to self-determination. It is thus about a question which is much more political than legal.
The decision of the ECJ is expected on 27 February.
The judgement of 2016 and especially the position developed by the Advocate General poses a problem of separation of powers in the sense that Montesquieu gave to this term.
Without wishing to make a full demonstration, let us take as an illustration an argument developed before the Court.
The Advocate General indicates in those conclusions (point 221): “In my opinion, it is necessary to exclude the argument of the French Government, the Council and the Commission that the Kingdom of
Morocco is the “de facto administrative power” in Western Sahara “.
Is this not about a pure excess of power? Is it up to a magistrate – even if emeritus, that is not the question there – or even to a court to take the place ” in my opinion ” of bodies democratically elected to drive the policy of the Union or its members and representing tens (in the case of France 67 million) or even hundreds of millions of people (in the case of the Council and theCommission 511 million) ?
Very often, the separation of powers is recalled during the encroachment of the executive on the judiciary, the citizen expecting from their sovereign that the latter allows the magistrates to work independently. The same requirement is imposed in the opposite direction. What would a society be where diplomacy would be conducted by the judges other than a government of the judges?
Admittedly, it is completely to the credit of the justice system, that when an injustice is committed, it rises up and asserts values.
The relations between Morocco and the “Sahraoui people” are part of a territorial conflict with confused origins and complex political implications that offers a ground for the patience and talent of diplomats. Not the judges.
But that is exactly what happens here where a characterization, a status, that is neither legal nor factual but simply diplomatic – we know that diplomacy is often a balancing act – is violently destroyed by one person.
After all, let take the idea to its logical conclusion – to hell with the sense of reality and the complexity of the world! – and see if, at least, the cause of the great principles has something to gain from this position.
This amounts to asking the question of the future of this putative jurisprudence.
Three scenarios are possible.
(i) The first would be to be consistent and extend to all the same rules (as in our hoax at the
beginning, China, Russia and the United States etc.). In other words, if the judges become
professors of omnipotent virtue, the European Union will not have any relations with
the other countries of the world, nor many chances of continuing to exist. Intuitively, we
are fairly reassured that in reality, this scenario is not the most likely.
(ii) Much more likely is the tendency to concentrate criticism on Africa and to avert the gaze
from the West or the partners that seem indispensable or too powerful at a given moment.
It may then be necessary for the sake of coherence to change the name of the current
Court of Justice of the European Union to the Court of Justice of the Former Colonies who
will have justice only in name.
(iii) Just as likely is the hypothesis of a jurisprudence with no future. It will inevitably result in
a loss of credibility by the ECJ. The result, from the point of view of justice (and not of diplomacy for which we do not recognise.
ourselves any competence or legitimacy), is yielded that the main principles that we claim to defend
will be found in the choice of a bad quarrel to be weakened and overused.
Wishing to ignore Montesquieu has a price and it is high!Guest contributor