Judgment — ECLI:EU:C:2016:973
Date: 2016-12-21
Language of the case: French
Court formation: Grand Chamber
Subject matter: Agriculture and Fisheries;Association Agreement;External relations
Procedure: Action for annulment - inadmissible;Appeal - successful

summary table) of some of the main reforms introduced by the Liberalisation Agreement. 198. As is clear from Article 2 of Protocol 1 in Annex 1 to the Liberalisation Agreement, the Agreement relates to imports into the European Union ‘of agricultural products, processed agricultural products, fish and fishery products originating in Morocco’, whereas Implementing Regulation No 812/2012 seems to target only some of those products which are imported into the European Union under tariff quotas. (92) The absence of an implementing regulation would not have prevented the agreement applying, both to these products and to others. 199. At the hearing the Commission did not explain how Implementing Regulation No 812/2012 implements the Liberalisation Agreement in respect of all the other products. 200. In any case, even for products covered by Implementing Regulation No 812/2012 (for example tomatoes) for which there is a tariff quota in respect of which detailed provisions are made in that regulation, it should be noted that the Front Polisario does not claim, as an importer would do, that the tariff quota under the Liberalisation Agreement is of direct concern to it. Its complaint concerns the actual application of that agreement to Western Sahara, which has nothing to do with its possible implementation by that regulation. 201. Consequently, I consider that the second criterion for direct concern set out in paragraph 105 of the judgment under appeal is met in the present case. c) The third part, relating to individual concern in relation to the Front Polisario 202. I will examine this third part only in the event that the Court finds that the contested decision is of direct concern to the Front Polisario. i) Arguments of the parties 203. The Council and the Commission maintain that the General Court erred in law in holding in paragraphs 111 and 113 of the judgment under appeal that the Front Polisario was individually concerned by the contested decision on the ground that it participated in international negotiations with a view to resolving the dispute over Western Sahara and that, as such, it was in a situation which distinguished it from all other persons. Even accepting that such a situation exists, the General Court’s reasoning does not establish how, having regard to its purpose, the contested decision affects the Front Polisario in any way for the purposes of the case-law. On the contrary, its participation in the UN-led negotiations demonstrates a simple general political interest which does not have any substantive or procedural link with the contested decision and the Liberalisation Agreement, the latter relating solely to commercial and customs matters. 204. On the other hand, the Front Polisario claims that paragraphs 111 and 113 of the judgment under appeal rightly hold that the contested decision is of individual concern to it. In this regard, it submits, first of all, that it is established and undisputed that it has the status of the representative of the people of Western Sahara and that, as such, it is the only negotiating partner of the Kingdom of Morocco in the UN-led negotiations. Second, it explains that the purpose of those negotiations is not to find a simple political solution to a territorial dispute, as the Council and the Commission state, but to permit the people of Western Sahara to exercise its right to self-determination. Lastly, it maintains that the Liberalisation Agreement applies to Western Sahara and to its natural resources, control over which forms part of that right. ii) Assessment 205. Even though the present case is not covered by the Court’s case-law cited by the Commission concerning the standing to bring proceedings, against a Commission decision on State aid, of a party other than the Member State to which that decision is addressed, (93) there is nothing, in principle, to prevent the Front Polisario satisfying the criterion for individual concern, even though, on account of the special circumstances distinguishing it, there is no precedent for its case which the Court has already had the opportunity to examine. 206. Against this background, I cannot agree with the Commission’s view that paragraph 113 of the judgment under appeal runs counter to the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217), (94) because the position of the Front Polisario is not at all comparable to the position of the Netherlands Antilles. 207. In paragraphs 66 to 67 of that judgment, the Court ruled that, even though most imports of rice originating in the OCTs into the European Union came from the Netherlands Antilles, not only did that sector constitute only 0.9% of the Netherlands Antilles’ gross national product, but also the Netherlands Antilles were not the only rice-producing OCT concerned by the regulations at issue. 208. On this basis, the Court ruled in paragraph 68 of that judgment that the regulations at issue had not had serious consequences in a significant sector of the economy of the Netherlands Antilles as distinct from every other OCT and that they had not been affected by the provisions in question by reason of attributes distinguishing them from all other OCTs to which those regulations also apply. 209. The situation of the Front Polisario is far removed from that of the Netherlands Antilles. Whilst the Court ruled in paragraph 69 of that judgment that ‘the general interest which an OCT, as an entity responsible for economic and social affairs within its jurisdiction, may have in obtaining a result that is favourable for its economic prosperity is not sufficient on its own to enable it to be regarded as being … individually concerned’, the Front Polisario’s role does not relate at all to economic and social affairs. 210. Its role, as set out in Article 8 of its constituting document, is much broader and essentially consists in leading the people of Western Sahara, of which it is the representative recognised by the UN, (95) to exercise its right to self-determination. 211. However, for the same reasons as I gave in points 185 to 194 of this Opinion, I do not think that individual concern in relation to the Front Polisario can be accepted on the basis of the above considerations. 212. Consequently, the General Court erred in law by ruling in paragraph 113 of the judgment under appeal that the contested decision is of individual concern to the Front Polisario. 213. Paragraphs 110 to 114 of the judgment under appeal should therefore be set aside, which, in my view, results in the setting aside of that judgment. 214. In this case, as the state of the proceedings so permits in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the action for annulment brought by the Front Polisario must be dismissed as inadmissible in the absence of direct and individual concern. 215. In the event that the Court were not to take the view that the General Court erred in law in ruling that the contested decision was of direct and individual concern to the Front Polisario, I will consider the other grounds of appeal below. C – In the further alternative 1. The third ground of appeal, alleging an error in law relating to the General Court’s review of the discretion enjoyed by the Council in the field of external economic relations a) Arguments of the parties 216. The Council and the Commission assert that the General Court erred in law in holding in paragraph 225 of the judgment under appeal that the wide discretion conferred on the Council for the conclusion of economic agreements with third countries was offset by an obligation first to examine all the relevant facts of the individual case. 217. In this regard they dispute, first of all, the very principle of such an obligation, as it can be regarded as a procedural guarantee provided by EU law in return for the discretion available to the decision-making authority in administrative procedures for the implementation, in individual cases, of the EU rules applicable in technical areas involving complex assessments. In the light of its rationale, this procedural guarantee cannot be transposed to the exercise of the wide discretion enjoyed by the Council in the adoption of legislative or normative acts, even though account must also be taken of information available in this context. In any event, in a political field such as the conclusion of international agreements, judicial review of the wide discretion conferred on the legislature should be limited to verifying that the action taken was not manifestly inappropriate in relation to the objective pursued. 218. Second, the Council and the Commission submit that the General Court committed errors in law in setting out the detailed arrangement for implementation of the prior examination obligation laid down in the judgment under appeal. That judgment linked it to the existence of doubts over respect for the rights of the people of Western Sahara, as attested by a report produced by the council of the Front Polisario, rather than establishing the infringement of a rule of law or the existence of a manifest error of assessment. In addition, such a report cannot, in view of its origin, be regarded as valid proof. 219. In the view of the Front Polisario, the prior examination obligation highlighted by the General Court forms part of the fundamental guarantees which must be provided, within a Union based on the rule of law, where an EU institution enjoys discretion, and in particular, therefore, in the field of the European Union’s external economic relations. In addition, this obligation is connected with the general principle of sound administration, whose respect must be ensured, according to the case-law of the European Court of Human Rights, (96) not only in administrative procedures but also in procedures leading to the adoption of normative acts. That obligation helps to enable the Council to exercise its discretion in full knowledge of the facts, without limiting at all its extent, and to permit the court to satisfy itself that its exercise has not been vitiated by a manifest error of assessment. b) Assessment 220. According to settled case-law, ‘the Union legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. [The Court] concluded from this that the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue’. (97) 221. In this regard, as has been recognised by the EU Courts, its institutions enjoy a wide discretion in the field of external economic relations, which includes the Association and Liberalisation Agreements. (98) 222. It is true that, as the Council and the Commission assert, the case-law on which the General Court relied in paragraph 225 of the judgment under appeal (99) in finding the existence of a general obligation for the EU institutions to examine ‘carefully and impartially all the relevant facts of the individual case … which support the conclusions reached’ prior to the adoption of the act at issue is not relevant in the field of external economic relations. That case-law imposes an obligation to that effect on the EU institutions where, in an administrative procedure, (100) they intend to adopt a decision affecting the interests of a natural or legal person. (101) 223. However, I do not think that the General Court’s reference to the judgments of 21 November 1991, Technische Universität München (C‑269/90, EU:C:1991:438), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803), rather than the case-law cited in point 220 of this Opinion, affects its conclusion because the principles applicable in administrative procedures are applicable mutatis mutandis to legislative procedures. 224. It is settled case-law that, although the Union legislature enjoys broad political discretion when it weighs different general interests in the adoption of a legislative or regulatory act, it is always bound by the obligation to take into account all the relevant ‘basic facts’ and available ‘facts’. (102) In this context the Court must determine that the discretion has actually been exercised (103) and that the measure adopted is not manifestly inappropriate. (104) 225. I consider that the judgment of 16 April 2013, Spain and Italy v Council (C‑274/11 and C‑295/11, EU:C:2013:240), is particularly important in this regard because it concerned a Council decision authorising enhanced cooperation under Article 329(1) TFEU, which, like the contested decision, belongs to what the Commission has called the ‘hard core of the EU institutions’ discretion’. 226. When it reviewed the lawfulness of that decision, the Court of Justice reproduced almost verbatim the principle set out in the judgments of 21 November 1991, Technische Universität München (C‑269/90, EU:C:1991:438, paragraph 14), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 57), and reiterated by the General Court in paragraph 225 of the judgment under appeal, ruling that ‘in exercising its review of whether the condition that a decision authorising enhanced cooperation must be adopted only as a last resort has been satisfied, [the Court] should therefore ascertain whether the Council has carefully and impartially examined those aspects that are relevant to this point and whether adequate reasons have been given for the conclusion reached by the Council’. (105) 227. If the Council is subject to these requirements when it acts in a legislative capacity, it is difficult to imagine that it would not be when it has recourse to a special legislative procedure for the conclusion of an international agreement. (106) 228. For the same reasons as are given in point 142 of this Opinion, the references made by the Commission in paragraphs 12 to 14 of its rejoinder to the political nature of the question of Western Sahara cannot prevent the limited review which the Court must perform in the field of international relations, in which the EU institutions enjoy broad discretion. (107) 229. For these reasons, I consider that the General Court did not err in law in ruling in paragraph 225 of the judgment under appeal that ‘where [an] EU institution enjoys a wide discretion, in order to verify whether it has committed a manifest error of assessment, the Courts of the European Union must verify whether it has examined carefully and impartially all the relevant facts of the individual case, facts which support the conclusions reached’. 230. Lastly, I also do not concur with the Commission’s position that, rather than linking the prior examination of the relevant facts to the existence of doubts over respect for the rights of the people of Western Sahara, as attested by a report produced by the council of the Front Polisario, the General Court should have established the infringement of a rule of law or the existence of a manifest error of assessment. 231. I note that the General Court based the partial annulment of the contested decision on a combination of several pleas in law raised by the Front Polisario, including the first plea alleging failure to state adequate reasons. (108) 232. Against this background, the General Court ruled first that, prior to the adoption of the contested decision, the Council had an obligation to conduct an examination of all the relevant facts (109) and in particular, in this case, to take account of the impact which the conclusion of the Liberalisation Agreement could have on the human rights of the people of Western Sahara and on exploitation of the natural resources of that territory. (110) 233. On that basis, the General Court ruled in paragraph 244 of the judgment under appeal that ‘it does not follow either from the Council’s arguments or from the evidence that it attached to the file that it carried out [such] an examination’. 234. It therefore stopped before examining and a fortiori determining the question whether the contested decision entailed or contributed to an infringement of human rights in Western Sahara or exploitation of its natural resources in contravention of international law. For this reason the case-law cited by the Commission (111) concerning review of the lawfulness of an act of the European Union having regard to the principles of customary international law is not applicable in this case. 235. Nor did the General Court express a view on the veracity of the allegations contained in the report by the Front Polisario’s lawyer, the probative value of which is contested by the Commission. The General Court simply noted that ‘the Council has not made any specific comment and has not denied them, which suggests that it did not consider whether the exploitation of the natural resources of the part of Western Sahara under Moroccan control was for the benefit of the population of that territory’. (112) 236. As the Council did not comply with its obligation to conduct an examination of all the relevant facts before adopting the contested decision in a field where it enjoys broad discretion, the General Court ruled, in essence, that it was impossible for it to carry out its judicial review in order to determine whether or not the contested decision was manifestly inappropriate. (113) By ruling to that effect it did not err in law. 237. Consequently, the third ground of appeal must be rejected. 2. The fourth ground of appeal, alleging that the General Court ruled ultra petita a) Arguments of the parties 238. The Council and the Commission claim that the General Court erred in law in its judgment in examining, in paragraphs 227 and 241 of the judgment under appeal, whether the Council had failed to fulfil its obligation to examine all the relevant facts of the case before adopting the contested decision and by partially annulling that decision on that ground in paragraph 247 of that judgment. Contrary to the statement made in paragraph 226 of the judgment and paragraph 125, to which it refers, the Front Polisario did not raise any plea in law on this subject. In ruling on this question, the General Court thus raised of its own motion a plea in law which was not a matter of public policy and, moreover, without first hearing the Council. 239. The Front Polisario contests the merits of this ground of appeal, claiming in essence, first, that the General Court did not rule ultra petita because its application did seek the annulment of the contested decision in so far as it had approved the application of the Liberalisation Agreement to Western Sahara, second, that the ground for annulment on which the operative part of the judgment under appeal was based was not raised of the Court’s own motion but was raised in paragraphs 78 to 85 of its application lodged with the General Court and, lastly, that, although the arguments in this regard were relied on in connection with a plea in law alleging a failure to state adequate reasons, it was for the EU Courts to restore their proper legal classification. b) Assessment 240. As the Front Polisario asserts in paragraphs 77 to 85 of its application lodged with the General Court, it challenged the validity of the contested decision on grounds of failure to state adequate reasons in its first plea for annulment. 241. In paragraph 79 of that application, the Front Polisario claims that ‘the Council … had … an obligation to take into account the entire legal and factual context to ensure that the text of the agreement could not infringe international law in any way or undermine the rights of the Sahrawi people’. 242. In this regard, in paragraphs 125 to 127 of the judgment under appeal, the General Court rejected the first plea in law only partially, reserving the examination of the Front Polisario’s complaint that the Council had not examined the relevant facts of the individual case before adopting the contested decision. The General Court conducted that examination in paragraphs 226 to 247 of the judgment under appeal. 243. Furthermore, the General Court reserved the examination of a number of arguments relied on by the Front Polisario in support of its third plea in law (infringement of fundamental rights), its fifth plea in law (breach of the fundamental values of the European Union and the principles governing its external action), its sixth plea in law (failure to achieve the objective of sustainable development), its ninth plea in law (incompatibility of the contested decision with several agreements concluded by the European Union) and its tenth plea in law (incompatibility of the contested decision with international law), in so far as they sought to challenge the exercise by the Council of its broad discretion. (114) 244. For those reasons I do not think that the General Court ruled ultra petita in examining whether the contested decision had to be preceded by an examination of all the facts of the individual case. 245. Consequently, the fourth ground of appeal must be rejected. 3. The fifth ground of appeal, alleging errors in law relating to the application of the Charter of Fundamental Rights of the European Union and the principle of permanent sovereignty over natural resources a) The first part, relating to the obligation to examine the question of respect for fundamental rights i) Arguments of the parties 246. The Commission claims, first, that the complaint alleging the infringement of the Charter of Fundamental Rights of the European Union, which was accepted by the General Court, had not been raised in a comprehensible manner in paragraphs 111 to 115 of the application at first instance. 247. The Council and the Commission submit, second, that the General Court’s reasoning in paragraphs 227, 228, 230 and 231 of the judgment under appeal is based on a misinterpretation and misapplication of the Charter of Fundamental Rights. In this regard they state that the General Court does not conclude that the contested decision or the Liberalisation Agreement contain a provision contrary to fundamental rights, but complains that those acts permit exports to the European Union of products obtained in conditions which are likely to affect the fundamental rights of the people of Western Sahara and, as such, to encourage indirectly the infringement of some of the rights enshrined in the Charter of Fundamental Rights. They also assert that such reasoning effectively makes the lawfulness of acts of the European Union dependant on conduct imputable to third countries with which it concludes international agreements. Lastly, they submit that this reasoning results in an extraterritorial effect being conferred on the Charter of Fundamental Rights, in contravention of Article 51 thereof, which should be understood as meaning that the EU institutions are required to respect fundamental rights within the territorial scope of EU law, as defined by Article 52 TEU and Article 355 TFEU, and not, with some exceptions, outside that scope. 248. Third and last, the Council and the Commission assert that the question of respect for human rights is taken into account, for the purposes of the Union’s external action, in a procedural framework other than that defined by the General Court. Under Article 21 TEU and Article 205 TFEU, promotion and support for human rights constitute, respectively, a principle and an objective underlying the Union’s action on the international scene. As such, they should be taken into consideration by the Council in the conduct of the European Union’s external relations, whilst being able to be weighed with other principles and objectives on the basis of the broad discretion conferred on that institution. In practice, the human rights situation in a third country should be regarded as a political matter which could lead the Council to avail itself of the surveillance clauses laid down in the international agreements concluded by the European Union, once those agreements have entered into force. On the other hand, respect for human rights constitutes neither an element subject to a prior examination of the kind defined by the General Court in paragraphs 228, 241 and 244 of the judgment under appeal nor a substantive requirement governing the conclusion of an international agreement. 249. The Front Polisario disputes the existence of errors in law, claiming, in essence, that the merits of the pleas challenged by the Council and the Commission had to be assessed in the light of the specific legal and factual context in which the General Court gave its ruling. In this regard the General Court found, first, that Western Sahara was outside the frontiers of the Kingdom of Morocco, as recognised by the UN, the EU and its Member States, second, that the Kingdom of Morocco also did not have any international mandate to administer it, and third, that, supported by the Council and the Commission, the Liberalisation Agreement approved by the contested decision therefore applied to a non-self-governing territory. 250. The General Court then held that in the specific case where an international agreement concluded by the European Union is applicable to a disputed territory, the question of fundamental rights is of particular importance. Lastly, it concluded that this question had to be examined by the Council before the adoption of the decision. This approach is consistent with Article 51 of the Charter of Fundamental Rights as that article requires the Council to respect fundamental rights when it exercises its powers under the Treaties, as it did in this case. It is also consistent with Article 205 TFEU, Article 21 TEU and the provisions of the Association Agreement requiring respect for human rights in this case. 251. Furthermore, the Front Polisario submits that the Charter of Fundamental Rights must be considered to be applicable both ratione personae and ratione materiae, because many Sahrawis born during the ‘provincialisation’ period for Western Sahara under the Kingdom of Spain are Spanish nationals and because the existence of infringements of their fundamental rights has been officially established by many UN documents and by the European Court of Human Rights. ii) Assessment – The admissibility of the plea in law in the application for annulment brought by the Front Polisario alleging infringement of fundamental rights 252. I do not share the Commission’s view that the third plea in law in the application for annulment brought by the Front Polisario alleging infringement of fundamental rights is inadmissible because it is incomprehensible. 253. It is clear from paragraphs 96 to 101 and 111 to 115 of the Front Polisario’s application at first instance that in its view the contested decision entailed the infringement of the fundamental rights of the people of Western Sahara, in particular Articles 6, 17, 37, 47 and 53 of the Charter of Fundamental Rights, as it helps to perpetuate the Moroccan presence in Western Sahara. – The complaint alleging a misinterpretation and misapplication of the Charter of Fundamental Rights 254. Under Article 3(5), Article 21(1), first subparagraph, (2)(b), and (3) and Article 23 TEU and Article 205 TFEU, human rights and their protection are among the principles and essential values of the European Union which must guide its action on the international scene. 255. As the Court recently ruled with regard to an international agreement approved by a Council decision, (115) the legal basis of which was Article 37 TEU in conjunction with Article 218(5) and (6) TFEU, ‘compliance [with the principles of the rule of law, human rights and human dignity] is required of all actions of the European Union, including those in the area of the CFSP, as is clear from the provisions, read together, set out in the first subparagraph of Article 21(1), Article 21(2)(b) and (3) TEU, and Article 23 TEU’. (116) 256. Furthermore, it is settled case-law that the Union must respect international law in the exercise of its powers. (117) It follows that, if it is not to be devoid of any practical purpose, the question of the conformity of the agreement at issue with international law must be taken into account in the prior examination of all the relevant facts to be conducted by the institutions before concluding an international agreement. 257. In addition to the obligation under EU law to examine the general human rights situation in the other party to the international agreement, and more specifically to study the impact which that agreement could have on human rights, international law requires actors in international law, in particular States and international organisations, to respect peremptory norms of international law (jus cogens) and erga omnes obligations. 258. In this regard, the International Court of Justice has ruled that ‘by their very nature, [erga omnes obligations] “concern of all States” and, “in view of the importance of the rights involved, all States can be held to have a legal interest in their protection”‘. (118) On that basis it ruled that ‘all States are under an obligation not to recognise the illegal situation resulting from the [infringement of the erga omnes obligation and] are also under an obligation not to render aid or assistance in maintaining the situation created by such [infringement]’. (119) 259. Consequently, before concluding international agreements, the EU institutions must ensure compliance with the very short list of peremptory norms of international law (jus cogens) (120) and erga omnes obligations, (121) which include ‘the outlawing of acts of aggression, and of genocide, [and] the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination’ (122) and the right to self-determination. (123) 260. It should be noted in this regard that the Council does not deny that the general human rights situation in the other party to an international agreement is one of the elements to be taken into account at the time of the negotiation and the conclusion of the agreement. However, in paragraphs 32 and 82 of its application at first instance, the Front Polisario complained that the Council did not conduct an assessment of the impact of the Liberalisation Agreement on human rights prior to the conclusion of that agreement. 261. Since the human rights situation in Western Sahara is one of the points of dispute between the Front Polisario and the Kingdom of Morocco and for that reason was the subject of an examination by the UN Secretary-General in his annual reports on Western Sahara, (124) it cannot be claimed that there was no cause for an impact assessment. 262. In my view, neither the Council nor the Commission nor any of the interveners puts forward a convincing reason why, given these requirements, the EU institutions are not required, before the conclusion of an international agreement, to examine the human rights situation in the other party to the agreement and the impact which the conclusion of the agreement at issue could have there in this regard. 263. I note that the Council and the Commission have set the bar very high for themselves by deciding to ‘insert human rights in Impact Assessment, as and when it is carried out for legislative and non-legislative proposals … and trade agreements that have significant economic, social and environmental impacts’. (125) 264. It is therefore hardly surprising that the European Ombudsman found, by her decision of 26 February 2016 in Case 1409/2014/MHZ on the European Commission’s failure to carry out a prior human rights impact assessment of the free trade agreement between the European Union and the Socialist Republic of Vietnam, (126) that the Commission’s failure to provide valid reasons to justify its refusal to carry out such an assessment constituted maladministration. 265. It is true that, as the Council and the Commission observe, Articles 2, 3 and 90 of the Association Agreement and the Joint Declaration relating to Article 90 of the Agreement annexed to the Final Act of that agreement permit the European Union to comply with its ongoing obligation to respect and promote respect for human rights throughout the life of the agreement, of which they constitute an ‘essential element’. (127) 266. However, as the European Ombudsman states in paragraph 24 of her decision of 26 February 2016 in Case 1409/2014/MHZ, for the impact assessment to have a significant effect, it should be carried out before the international agreement at issue is concluded, as it is in the period of the negotiation of the agreement that the European Union can best promote its values and objectives, including respect for and protection of human rights. 267. Contrary to the submission made by the Council and the Commission, the obligation to carry out an assessment of the impact of the Liberalisation Agreement on human rights does not effectively make the lawfulness of acts of the European Union dependant on legal acts of a third State such as the Kingdom of Morocco. 268. As the General Court ruled in paragraph 231 of the judgment under appeal, ‘if the European Union allows the export to its Member States of products originating in that other country which have been produced or obtained in conditions which do not respect the fundamental rights of the population of the territory from which they originate, it may indirectly encourage such infringements or profit from them’. 269. Even if the existence and the enforceability of such a principle in EU law were disputed, it is clear that international law imposes a clear obligation on the European Union and its Member States not to recognise an illegal situation resulting from the infringement of principles and rules concerning fundamental rights and not to render aid or assistance in maintaining the situation created by that infringement. To that end, the EU’s institutions and its Member States must examine the impact which the international agreement at issue could have on human rights. 270. As regards the claim made by the Council and the Commission that, in relying on Articles 1 to 3, 5, 15, 16, 17, 31 and 32 of the Charter of Fundamental Rights in paragraph 228 of the judgment under appeal, the General Court conferred on its provisions an extraterritorial effect contrary to Article 51 thereof, it should be noted at the outset that, as is acknowledged by the Kingdom of Belgium and the Commission, fundamental rights may, in some circumstances, produce extraterritorial effects. That is certainly the case where an activity is governed by EU law and carried out under the effective control of the EU and/or its Member States but outside their territory. (128) 271. However, since in this case neither the European Union nor its Member States exercise control over Western Sahara and Western Sahara is not among the territories to which EU law is applicable, there can be no question of applying the Charter of Fundamental Rights there, even though, as the Front Polisario claims, a number of Sahrawis are Spanish nationals. 272. Accordingly, although the General Court correctly ruled in paragraph 228 of the judgment under appeal that ‘the Council must examine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export … [does not entail] infringements of fundamental rights [of the population of Western Sahara]’, it was not able, however, to rely on provisions of the Charter of Fundamental Rights. Paragraph 228 of the judgment under appeal is therefore vitiated by an error in law. 273. Nevertheless, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment, and a substitution of grounds must be made. (129) 274. That is the case here, as the fact that the General Court referred to the Charter of Fundamental Rights does not affect the EU institutions’ obligation under EU law and international law (130) to examine, before adopting the contested decision, the human rights situation in Western Sahara and the impact which the conclusion of the agreement at issue could have there in this regard. 275. I would point out in this respect that the arguments relating to the discretion enjoyed by the EU institutions and the facts which they must take into account, which are accepted by the General Court as grounds for the partial annulment of the contested decision, were based on a combination of a number of pleas in law raised by the Front Polisario, in particular the pleas alleging failure to state adequate reasons, infringement of fundamental rights, breach of the fundamental values of the Union’s external action (Article 21 TEU and Article 205 TFEU) and infringement of international law. 276. Against this background, the General Court should have referred to the principles and rules concerning the basic rights of the human person (131) which, according to the case-law of the International Court of Justice, constitute erga omnes obligations in international law whose protection must be ensured by States, which must refrain from rendering aid or assistance in maintaining situations created by their infringement. (132) 277. It is true that the Court ruled in paragraph 107 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), that ‘the principles of customary international law … may be relied upon by an individual for the purpose of the Court’s examination of the validity of an act of the European Union in so far as, first, those principles are capable of calling into question the competence of the European Union to adopt that act … and, second, the act in question is liable to affect rights which the individual derives from EU law or to create obligations under EU law in his regard’. 278. However, what is at issue is not the lawfulness of the contested decision having regard to the principles of international law, but its lawfulness in respect of the failure, before its adoption, to take into account all the relevant factors, including its compatibility with international human rights law. The conditions set out in paragraphs 107 to 110 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), concerning the possibility of relying on rules of customary international law are not therefore applicable. (133) 279. Consequently, the first part of the fifth ground of appeal must be rejected. b) The second part, relating to the obligation to examine the conformity of the Liberalisation Agreement with Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources i) Arguments of the parties 280. The Council and the Commission claim that, by criticising the Council, in paragraphs 228, 231, 241 and 244 of the judgment under appeal, for failing to examine the conditions for the exploitation of the natural resources of Western Sahara before adopting the contested decision, the General Court ultimately demands that it verifies that third countries with which it intends to conclude international agreements which may be applied to non-self-governing territories, in this case the Kingdom of Morocco, fulfil the obligations under Article 73 of the United Nations Charter. However, this reasoning is vitiated by three sets of errors in law. 281. First, Article 73 of the United Nations Charter in itself imposes obligations only on members of the United Nations which have or assume responsibilities for the administration of non-self-governing territories. That is not the case with the European Union. In addition, the possibility that the Kingdom of Morocco might not comply with its obligations under that provision as the de facto administering power in Western Sahara is not capable of altering the scope of that article by imposing a verification obligation on the EU institutions where they intend to conclude an agreement with that country. On the contrary, such delicate political questions fall within the sole competence of the UN Security Council. 282. Second, Article 73 of the United Nations Charter does not meet the conditions under which an individual may rely on it in legal proceedings in order to contest the legality of an act of the European Union. 283. Third and last, the General Court misinterpreted customary international law, as it did not cite any legal basis requiring the EU institutions to verify that the other party to the agreement has complied with the principle of permanent sovereignty over natural resources and the primacy of the interests of the inhabitants of non-self-governing territories. Similarly, it did not cite any legal basis from which it can be inferred that, in the absence of such verification, the agreement concluded by the European Union may indirectly encourage the infringement of those principles. 284. In any case, the General Court exceeded the limits of its judicial review since, in view of the imprecision of these principles, it should have concluded that no manifest error of assessment justified the annulment of the contested decision, rather than imposing an unprecedented procedural obligation on the Council. 285. In response, the Front Polisario asserts that it is irrelevant to criticise the General Court for reviewing the conformity of the contested decision with Article 73 of the United Nations Charter since reference is made to that provision only in reasoning seeking to determine whether the Council had an obligation to examine the conditions for the exploitation of the natural resources of Western Sahara before adopting the contested decision. 286. In addition, that reasoning is free from errors in law as the principle of customary international law of permanent sovereignty over natural resources is linked to the right to self-determination, which itself constitutes a norm of jus cogens with erga omnes effects. Consequently, each State must ensure that it is complied with. ii) Assessment 287. It should be noted at the outset that the question at the heart of the second part of the fifth ground of appeal is not whether the contested decision complies with Article 73 of the United Nations Charter, the right to self-determination and the principle of permanent sovereignty over natural resources but simply whether the Council had to take these factors into account before adopting the contested decision. 288. In this regard, the arguments made by the Council and the Commission concerning the fact that these norms of public international law do not satisfy the conditions under which an individual may rely thereon in legal proceedings in order to contest the legality of an act of the European Union, as set out in the Court’s case-law, must be rejected. (134) 289. It must therefore be examined whether the General Court correctly ruled in paragraph 241 of the judgment under appeal that, in the examination of all the relevant facts, ‘the Council … should have satisfied itself that there was no evidence of an exploitation of the natural resources of the territory of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights’. 290. It is settled case-law that the Union must respect international law in the exercise of its powers. (135) This requirement applies to all the Union’s external action, including the negotiation and conclusion of international agreements. (136) 291. The fundamental principles applicable to non-self-governing territories are set out in Article 73 of the United Nations Charter, according to which ‘members [of the UN] which have or assume responsibilities for the administration of [such] territories recognise the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost … the well-being of the inhabitants of these territories’. 292. Aside from their obligation under Resolution 1514 (XV) to assist the peoples of such territories to exercise their right to self-determination, administering powers must also comply with the principle of the permanent sovereignty of those peoples over the natural resources of their territories, (137) which has been recognised by the International Court of Justice as a principle of customary international law. (138) 293. In the case of non-self-governing territories, the principle of permanent sovereignty over natural resources essentially means that the administering power may not, without breaching its obligations under the United Nations Charter, deprive the peoples of non-self-governing territories of the exercise of their legitimate rights over the natural resources of those territories or subordinate the rights and interests of those peoples to foreign economic and financial interests. (139) On the other hand, foreign economic investment undertaken in collaboration with the peoples of the non-self-governing territories and in accordance with their wishes in order to make a valid contribution to the socio-economic development of the territories is consistent with that principle. (140) 294. Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources have never been regarded as peremptory norms of international law (jus cogens) or erga omnes obligations. (141) Consequently, the possibility of an infringement of Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources cannot establish the liability of the European Union as the obligation not to recognise as legal a situation resulting from a serious infringement of an erga omnes obligation and not to render aid or assistance in maintaining that situation (142) does not apply. 295. The necessary corollary of the fact that Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources are not erga omnes obligations is that they can be infringed only by those who are bound by those provisions, which does not include the European Union and its institutions. In this regard, if they were applicable to Western Sahara, the Association and Liberalisation Agreements merely establish a favourable customs regime for exports of products originating in Western Sahara to the European Union. As such, those agreements do not concern the exploitation of natural resources, whether in Morocco or in Western Sahara. 296. It is true that the possibility that products originating in that territory can benefit from that regime may encourage exploitation of the natural resources of Western Sahara. However, such exploitation is not in itself contrary to international law, but depends on whether it complies with the principle of the primacy of the interests of its inhabitants enshrined in Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources. The Kingdom of Morocco alone is able to ensure that such exploitation is in accordance with international law. 297. As the liability of the European Union cannot be established, even if the exploitation of the natural resources of Western Sahara proved to be contrary to Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources, the General Court erred in law in ruling in paragraphs 229 to 246 of the judgment under appeal that the impact of the Liberalisation Agreement on this principle was a relevant fact which had to be taken into account by the Council before concluding that agreement and that this question did not only concern the Kingdom of Morocco. Those paragraphs must therefore be annulled. 298. However, this error cannot have consequences for the remainder of the judgment under appeal since, as I explained in points 254 to 279 of this Opinion, the General Court correctly ruled that the Council had failed to fulfil its obligation to examine, before adopting the contested decision, the human rights situation in Western Sahara and the impact which the conclusion of the agreement at issue could have there in this regard. 299. Consequently, the second part of the fifth ground of appeal must be rejected as ineffective. 4. The sixth ground of appeal, alleging an error in law relating to the extent of the annulment of the contested decision a) Arguments of the parties 300. The Council and the Commission assert that the General Court made two errors in law in paragraph 247 of the judgment under appeal in annulling the contested decision in so far as it approves the application of the Liberalisation Agreement to Western Sahara. In the absence of any explicit reference to Western Sahara in that agreement, no element in this regard can be severed from that decision. In addition, the judgment under appeal would, in short, unilaterally alter the territorial scope of the Liberalisation Agreement and, therefore, the spirit and substance of the contested decision. The Kingdom of Morocco would never have accepted the agreement if the EU institutions had included in it a clause explicitly excluding its application to Western Sahara. 301. The Front Polisario contends that the element annulled by the General Court is severable from the remainder of the contested decision and alters neither its spirit nor its substance because Western Sahara is a non-self-governing territory with internationally recognised borders and is distinct from the Kingdom of Morocco under both international law and EU law. It also maintains that this severability is confirmed by the repeated claims of the Council and the Commission that the Liberalisation Agreement remains in force and continues to produce effects vis-à-vis the Kingdom of Morocco despite the annulment ordered by the General Court. b) Assessment 302. The examination of this ground of appeal also forms part of the arguments I am making in the alternative, namely in the event that the Court decides that the Liberalisation Agreement applies to the territory of Western Sahara and also concludes that the Council infringed its obligation to examine all or some of the relevant facts prior to the contested decision. In my view, however, a partial annulment of the contested decision would not seem objectionable in this case. 303. It should be recalled that the General Court’s decision to annul the contested decision partially stems from the ambiguity of the position of the Council and the Commission, according to which the Liberalisation Agreement is not applicable to Western Sahara but is applied to it de facto, an ambiguity on which the General Court based direct and individual concern in relation to the Front Polisario. 304. Having established unlawfulness in the procedure (143) for the adoption of the contested decision which vitiates it only in so far as the Liberalisation Agreement applies to Western Sahara, the General Court annulled the contested decision ‘in so far as it approves the application [of the Liberalisation Agreement] to Western Sahara’. 305. According to settled case-law, ‘[partial] annulment is possible only in so far as the elements whose annulment is sought may be severed from the remainder of the act … The Court has repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance … Review of whether the contested provisions are severable requires consideration of their scope, in order to be able to assess whether their annulment would alter the spirit and substance of the decision challenged ...’. (144) 306. In these circumstances, contrary to the claim made by the Council, in annulling the contested decision in so far as it approves the application of the Liberalisation Agreement to Western Sahara, the General Court did not contest the Council’s power to conclude an agreement applicable to Western Sahara with the Kingdom of Morocco, but the fact that the Council approved its conclusion without first examining all the relevant facts of the individual case. 307. By the partial annulment, the General Court also did not alter the spirit and substance of the contested decision as the partial annulment is linked to matters relating solely to the territorial scope of the Liberalisation Agreement and not its merits. 308. The sixth ground of appeal must therefore be rejected. VII – Costs 309. Under Articles 137 and 184(2) of its Rules of Procedure, where the Court itself gives final judgment in the case, it is to make a decision as to costs. 310. Under Article 138(1) of those Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. A – Principal and alternative considerations 311. As, in my view, the Front Polisario must be unsuccessful in the appeal for the reasons I have given, principally, in points 54 to 114 of this Opinion and, in the alternative, in points 185 to 194 and 211 of this Opinion, it must be ordered to bear its own costs and to pay those incurred by the Council and the Commission, both at first instance and at the appeal stage. 312. In that case, pursuant to Article 140(1) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the Member States which have intervened in the proceedings are to bear their own costs. 313. The Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic and the Portuguese Republic must therefore be ordered to bear their own costs. 314. Under Article 140(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the Court may order an intervener, other than the Member States, the EU institutions, States which are parties to the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) and States which are parties to EFTA to bear their own costs. 315. As Comader has not made an application in this regard, it must be ordered to bear its own costs. B – In the further alternative 316. In the event that the Court of Justice did not concur with my view that the Association and Liberalisation Agreements are not applicable to Western Sahara and ruled that the contested decision was of direct and individual concern to the Front Polisario, the appeal would have to be dismissed for the reasons I have given in points 116 to 308 of this Opinion. 317. Under Article 138(1) and (2) and Article 184(1) of the Rules of Procedure, the Council and the Commission, which would have been unsuccessful in their submissions, would each have to bear their own costs and pay those incurred by the Front Polisario both at first instance and at the appeal stage. 318. My observations regarding the costs incurred by the interveners in the appeal in points 312 to 315 of this Opinion are also valid here. VIII – Conclusion 319. In the light of the above considerations, I propose that the Court: Principally and in the alternative – set aside the judgment of the General Court of the European Union of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953), by which it annulled Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, in so far as it approves the application of that agreement to Western Sahara; – dismiss the action for annulment brought by the Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) as inadmissible; – order the Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) to pay the costs incurred by the Council of the European Union and the European Commission both at first instance and at the appeal stage; and – order the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Portuguese Republic and the Confédération marocaine de l’agriculture et du développement rural (Comader) to bear their own costs. In the further alternative – dismiss the appeal as unfounded; – order the Council of the European Union and the European Commission each to bear its own costs and to pay the costs incurred by the Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) both at first instance and at the appeal stage, and – order the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Portuguese Republic and the Confédération marocaine de l’agriculture et du développement rural (Comader) to bear their own costs. 1 Original language: French. 2 OJ 2012 L 241, p. 2. 3 OJ 2000 L 70, p. 1. 4 OJ 2012 L 241, p. 4. 5 S/2016/355, paragraph 73. 6 See the list annexed to the report of 1 February 2016 of the UN Secretary-General on ‘Information from Non-Self-Governing Territories transmitted under Article 73e of the Charter of the United Nations’ (A/71/68). 7 Paragraph 117 of the judgment under appeal. 8 Paragraph 117 of the judgment under appeal. 9 Paragraph 215 of the judgment under appeal. See also paragraphs 146, 165, 171, 198, 205 to 211 and 215 to 222 of the judgment under appeal. 10 See paragraphs 124 to 126, 147, 166, 172, 199 and 211 of the judgment under appeal. 11 See the third paragraph of Article 56 of the Statute of the Court of Justice of the European Union and judgment of 22 February 2005, Commission v max.mobil (C‑141/02 P, EU:C:2005:98, paragraphs 48 to 51). 12 See judgment of 21 December 2011, Iride v Commission (C‑329/09 P, EU:C:2011:859, paragraph 50). 13 See paragraph 8 of the Front Polisario’s rejoinder. 14 According to the General Court, ‘the conclusion of an agreement between the European Union and a non-member State which may be applied on a dispute[d] territory is not, in all cases, contrary to EU law or international law with which the European Union must comply’. 15 See paragraph 87 of the judgment under appeal. 16 United Nations Treaty Series, Vol. 1155, p. 331. Both the General Court and the parties refer to the Vienna Convention even though, under Article 1 thereof, it applies only to treaties between States, whereas the convention applicable to the Liberalisation and Association Agreements is the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, concluded in Vienna on 21 March 1986, which has not yet entered into force, however. That being said, as the Court ruled in paragraph 37 of the judgment of 6 February 2014, Helm Düngemittel (C‑613/12, EU:C:2014:52), ‘international treaty law was codified, in essence, by the Vienna Convention and … the rules contained in that convention apply to an agreement concluded between a State and an international organisation, such as the Euro-Mediterranean Agreement with [the Arab Republic of Egypt], in so far as those rules are an expression of general international customary law’. See also, to that effect, judgment of 25 February 2010, Brita (C‑386/08, EU:C:2010:91, paragraphs 40 to 42 and the case-law cited), and Article 3(b) of the Vienna Convention. Accordingly, those rules ‘are binding upon the [EU] institutions and form part of the [EU] legal order’ (judgment of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraph 42). In this Opinion I will refer to the provisions of the Vienna Convention. 17 In particular the question of the alleged extraterritorial application of the Charter of Fundamental Rights of the European Union to Western Sahara. 18 See paragraph 24 of the appeal. 19 See paragraph 88. 20 See, in particular, paragraphs 27 to 30 of the Commission’s response. 21 The question whether the administering power retains its power to conclude international agreements on behalf and in the name of the non-self-governing territory was raised in the Case concerning East Timor between the Portuguese Republic (as the administering power driven out of East Timor by the Republic of Indonesia) and the Commonwealth of Australia (as a third country which concluded an international agreement applicable to East Timor with the Republic of Indonesia). However, the International Court of Justice did not rule on the merits of that case, holding that the absence of the Republic of Indonesia in the dispute did not permit it to exercise its jurisdiction. It nevertheless held that ‘it [could] not be inferred from the sole fact that [certain resolutions of the General Assembly and the Security Council] refer to Portugal as the administering Power of East Timor that they intended to establish an obligation on third States to treat exclusively with Portugal as regards the continental shelf of East Timor’. See judgment of 30 June 1995, East Timor (Portugal v. Australia), ICJ Reports 1995, p. 90, paragraph 32. 22 My emphasis. 23 – My emphasis. 24 See Council Regulation (EEC) No 1246/73 of 14 May 1973 on the conclusion of an agreement establishing an association between the European Economic Community and the Republic of Cyprus (OJ 1973 L 133, p. 1). 25 See paragraphs 3 and 57 of the judgment under appeal and the list annexed to the report of 1 February 2016 of the UN Secretary-General on ‘Information from Non-Self-Governing Territories transmitted under Article 73e of the Charter of the United Nations’ (A/71/68). See also, to that effect, the letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council (S/2002/161), paragraph 6: ‘the transfer of administrative authority [by the Kingdom of Spain] to [the Kingdom of] Morocco and [the Islamic Republic of] Mauritania in 1975 did not affect the international status of Western Sahara as a Non-Self-Governing Territory’. 26 See point 10 of this Opinion. 27 ICJ Reports 1975, p. 12. 28 My emphasis. 29 The judgment by the Court of First Instance was confirmed by the order of 28 November 1996, Odigitria v Council and Commission (C‑293/95 P, EU:C:1996:457). That case concerned fisheries agreements concluded by the Union with the Republic of Senegal and the Republic of Guinea-Bissau, which had not excluded from their territorial scope maritime zones which were subject to reciprocal claims by the two States. By its application for an award of damages, the applicant criticised the Council and the Commission for failing to exclude the zone in dispute from the agreements at issue pending the judgment of the International Court of Justice. 30 See, to that effect, judgment in R (Western Sahara Campaign UK) v The Commissioners for Her Majesty’s Revenue & Customs and The Secretary of State for the Environment, Food and Rural Affairs [2015] EWHC 2898 (Admin), paragraph 39, which gave rise to Western Sahara Campaign (C‑266/16), pending before the Court. 31 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, approved by UN General Assembly Resolution 2625 (XXV) of 24 October 1970. 32 See paragraph 75 of the judgment under appeal. 33 Unlike, for example, according to the Commission, the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco, approved by Council Regulation (EC) No 764/2006 of 22 May 2006 (OJ 2006 L 141, p. 1), which uses broader terms (‘waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’ and ‘waters under Moroccan jurisdiction’), which implies that the parties intended it to be applied to waters under Moroccan jurisdiction (see Article 2(a) and Article 11 of that agreement), including the waters of Western Sahara. 34 The importance of this practice was stressed by the International Court of Justice in its judgment of 20 February 1969 in the North Sea Continental Shelf Cases (Federal Republic of Germany v. Kingdom of Denmark; Federal Republic of Germany v. Kingdom of the Netherlands), ICJ Reports 1969, p. 3, referring to the practice of States ‘whose interests are specially affected’ (paragraph 74). 35 I am not including the Kingdom of Spain, which also appears on the list annexed to the report of 1 February 2016 of the UN Secretary-General on ‘Information from Non-Self-Governing Territories transmitted under Article 73e of the Charter of the United Nations’ (A/71/68), since it has considered itself exempt from any responsibility of any international nature in connection with the administration of Western Sahara since 26 February 1976. 36 See the list annexed to the report of 1 February 2016 of the UN Secretary-General on ‘Information from Non-Self-Governing Territories transmitted under Article 73e of the Charter of the United Nations’ (A/71/68). 37 The United States of America administers the Territory of Guam, the United States Virgin Islands and the Territory of American Samoa. New Zealand administers Tokelau. The French Republic administers New Caledonia and French Polynesia. The United Kingdom administers Anguilla, Bermuda, Gibraltar, the Cayman Islands, the Falkland Islands, the Turks and Caicos Islands, the British Virgin Islands, Montserrat, the Pitcairn Islands and Saint Helena. The 17th non-self-governing territory is Western Sahara. 38 Only the French Republic has a different practice; at the hearing the French Government explained that treaties concluded by the French Republic were applicable to New Caledonia and French Polynesia unless they were expressly excluded. 39 See ‘Guidelines on extension of treaties to overseas territories’ of 19 March 2013 of the United Kingdom Foreign & Commonwealth Office, available at https://www.gov.uk/government/publications/guidelines-on-extension-of-treaties-to-overseas-territories. See also, to that effect, ‘Federal Tax Laws and Issues Related to the United States Territories’ of 15 May 2012 of the US Congress Joint Committee on Taxation, available at https://www.jct.gov/publications.html?func=startdown&id= 4427. See also, to that effect, ‘External Relations and International Legal Obligations’ on the website of the Government of Tokelau at http://www.tokelau.org.nz/About+Us/Government.html. 40 See, to that effect, the letter from the Executive Office of the President of the United States of America of 20 July 2004 to Congressman Joseph R. Pitts, according to which ‘the United States and many other countries do not recognise Moroccan sovereignty over Western Sahara … The [free trade agreement] will cover trade and investment in the territory of Morocco as recognised internationally, and will not include Western Sahara’. The letter is available on the website of the Congressional Record (https://www.gpo.gov/fdsys/pkg/CREC‑2004-07-22/pdf/CREC‑2004-07-22-pt2-PgH6615-4.pdf#page= 13). See also, to that effect, the reply by the Minister for Foreign Affairs of the Kingdom of Norway to a parliamentary question, given on 11 May 2010, according to which, ‘since [the Kingdom of] Morocco does not exercise internationally recognised sovereignty over Western Sahara, Western Sahara is not considered to be part of the territory of [the Kingdom of] Morocco for the purposes of [the free trade agreement]. [That agreement] is not therefore applicable to goods from Western Sahara’ (see the website of the Norwegian Parliament at https://www.stortinget.no/no/Saker-og-publikasjoner/Sporsmal/Skriftlige-sporsmal-og-svar/Skriftlig-sporsmal/?qid= 46630). See also, to that effect, the Opinion of the Federal Council of the Swiss Confederation of 15 May 2013, according to which ‘[the EFTA-Morocco and Switzerland-Morocco free trade agreements] apply exclusively to the territory of the Kingdom of Morocco. The territory of Western Sahara is, in accordance with UN resolutions, a “non-self-governing territory” and is not part of the territory of [the Kingdom of] Morocco. If goods do not comply with the rules of origin of the agreement in question (for example, because they were produced [in] Western Sahara) and misleading proofs of origin produced within the framework of that agreement are none the less issued (Moroccan origin), after legal confirmation by a review procedure, preferential treatment will not be granted’ (see the website of the Swiss Parliament at https://www.parlament.ch/fr/ratsbetrieb/suche-curia-vista/geschaeft?AffairId= 20133178). See also, to that effect, the reply by the Minister for Foreign Affairs of the Republic of Iceland to a parliamentary question, given on 18 April 2016: ‘We agree with the interpretation of the free trade agreement between EFTA and Morocco by the Norwegian and Swiss authorities to the effect that [the Agreement] does not cover goods from Western Sahara’ (see the website of the Icelandic Parliament at http://www.althingi.is/altext/raeda/145/rad20160418T160934.html). 41 See, to that effect, Article 2.1 of the free trade agreement concluded on 15 June 2004 in Washington D.C. between the United States of America and the Kingdom of Morocco (‘Except as otherwise provided, this Chapter applies to trade in goods of a Party’) and Article 36 of the free trade agreement concluded on 19 June 1997 in Geneva between the EFTA States and the Kingdom of Morocco (‘This Agreement shall apply to the territories of the States Parties to this Agreement except as provided for in Protocol E’, which authorises the Kingdom of Norway to exempt the territory of Svalbard from the application of the free trade agreement). 42 See paragraphs 74, 75 and 81 of the judgment under appeal. 43 See paragraph 87 of the judgment under appeal. 44 See points 65 (for the Commission) and 67 (for the Council) of this Opinion. 45 Whilst Article 31(1) of that Convention provides that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’, paragraph 3(b) thereof stipulates that ‘there shall be taken into account, together with the context … any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. 46 See Air Transport Services Agreement Arbitration (United States of America v. Italian Republic), 1965, Reports of International Arbitral Awards, Vol. XVI, p. 75, p. 99, based on the Advisory Opinion of the Permanent Court of International Justice of 12 August 1922 concerning the competence of the International Labour Organisation (ILO) with respect to agricultural labour (P.G.I.J., Series B, pp. 39 to 41). 47 Whilst Article 31(1) of that Convention provides that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’, under paragraph 3(b), ‘there shall be taken into account, together with the context … any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. 48 Paragraph 61 (my emphasis). The Temple of Preah Vihear stands on a promontory of the same name in the eastern sector of the Dangrek mountains which delimits the boundary between the Kingdom of Cambodia to the south and the Kingdom of Thailand to the north. In 1904, the French Republic, of which the Kingdom of Cambodia was a protectorate at the time, and the Kingdom of Siam (the former name of the Kingdom of Thailand) signed a convention setting up a mixed commission to delimit the frontier between the two territories. Under that convention, the frontier followed the watershed line between the basins of the Nam Sen and the Mekong. Despite the fact that under that provision the temple is in Thai territory, the mixed commission placed it in Cambodian territory. After the Kingdom of Cambodia attained independence, the Kingdom of Thailand occupied the temple in 1954. 49 See, for example, Crawford, J., Brownlie’sPrinciples of Public International Law, 8th ed., Oxford University Press, Oxford, 2012, pp. 419 to 421. Although the mixed commission had placed the temple in Cambodian territory, the Kingdom of Thailand never protested against the map produced by the commission, which was submitted to it by the French Government. In the absence of the slightest protest by the Kingdom of Thailand, the International Court of Justice ruled that it had tacitly accepted it and that it was not possible for it to dispute Cambodian sovereignty over the temple. See, to that effect, pp. 22, 23 and 25 to 35 of that judgment. 50 See award of 14 January 2003 of the arbitral tribunal constituted by the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organisation (UNESCO) on the question of the tax regime governing pensions paid to retired UNESCO officials residing in France, Reports of International Arbitral Awards, Vol. XXV (2003), p. 233, paragraph 74. My emphasis. 51 See, to that effect, points 63 to 66 of this Opinion. 52 That judgment concerning the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, signed in Brussels on 20 November 1995 (OJ 2000 L 147, p. 3, ‘the EC-Israel Association Agreement’), related to exports to the EU of goods manufactured in the West Bank. 53 As the International Court of Justice ruled in paragraph 78 of its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p. 136: ‘the territories situated between the Green Line … and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories … have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power’. 54 Paragraph 96 of the judgment under appeal, referring to paragraphs 44 to 53 of the judgment of 25 February 2010, Brita (C‑386/08, EU:C:2010:91). 55 Paragraph 101 of the judgment under appeal. 56 Paragraph 102 of the judgment under appeal. 57 My emphasis. It is well known that the General Court used the term ‘applies’ rather than the words ‘is applied’, which would seem to be its view from reading these paragraphs. 58 See judgments of 8 October 1974, Union syndicale — Amalgamated European Public Service Union and Others v Council (175/73, EU:C:1974:95); of 8 October 1974, General Union of Personnel of European Organisations v Commission (18/74, EU:C:1974:96); of 28 October 1982, Groupement des Agences de voyages v Commission (135/81, EU:C:1982:371); and of 18 January 2007, PKK and KNK v Council (C‑229/05 P, EU:C:2007:32); and order of 14 November 1963, Lassalle v Parliament (15/63, EU:C:1963:47). 59 The first condition requires that the entity in question has constituting documents and an internal structure giving it the independence necessary to act as a responsible body in legal matters (see paragraphs 53 and 54 of the judgment under appeal). 60 Paragraph 49 of the judgment under appeal. 61 My emphasis. 62 See footnote 59 of this Opinion. 63 Paragraph 112. 64 See, to that effect, the resolutions of the European Parliament mentioned in paragraph 37 of the judgment under appeal and the resolutions of the ACP-EU Joint Parliamentary Assembly mentioned in footnote 79 of the Front Polisario’s response. 65 The principle of permanent sovereignty over natural resources is defined as ‘the right of peoples and nations to use and dispose of the natural resources in their territories in the interest of their national development and well-being’ (letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council (S/2002/161), paragraph 14). In paragraph 244 of its judgment of 19 December 2005 in the Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports 2005, p. 168, the International Court of Justice ruled that this principle was a principle of customary international law. 66 See, to that effect, the letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council (S/2002/161), paragraph 24: ‘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’. 67 Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p. 136, paragraph 41. 68 For example, the Republic of Benin, the Republic of Yemen, the People’s Democratic Republic of Algeria, the Republic of Cape Verde, the Lao People’s Democratic Republic, Grenada, the Republic of Tunisia, the Islamic Republic of Iran and the Republic of Zambia. 69 See UN General Assembly Resolutions on the question of Western Sahara of 21 November 1979 (A/RES/34/37), paragraph 7, and of 11 November 1980 (A/RES/35/19), paragraph 10. 70 See, for example, the Mauritanian-Sahrawi Agreement, signed in Algiers on 10 August 1979 between the Islamic Republic of Mauritania and the Front Polisario, the Compromise Agreement between the Kingdom of Morocco and the Front Polisario on outstanding questions relating to identification, signed in London on 19 and 20 July 1997, and the Compromise Agreement between the Kingdom of Morocco and the Front Polisario on containment of troops, prisoners of war and political detainees, signed in Lisbon on 29 August 1997. 71 See judgments of 30 April 1974, Haegeman (181/73, EU:C:1974:41, paragraph 5); of 30 September 1987, Demirel (12/86, EU:C:1987:400, paragraph 7); of 15 June 1999, Andersson and Wåkerås-Andersson (C‑321/97, EU:C:1999:307, paragraph 25); of 23 September 2003, Ospelt and Schlössle Weissenberg (C‑452/01, EU:C:2003:493, paragraph 27); of 10 January 2006, IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraph 36); and of 28 October 2010, Établissements Rimbaud (C‑72/09, EU:C:2010:645, paragraph 19). 72 OJ 2012 L 247, p. 7. 73 Judgment of 13 February 2014, Hungary v Commission (C‑31/13 P, EU:C:2014:70, paragraph 54 and the case-law cited). 74 See judgment of 9 August 1994, France v Commission (C‑327/91, EU:C:1994:305, paragraph 15). 75 Judgment of 9 August 1994, France v Commission (C‑327/91, EU:C:1994:305, paragraph 16). 76 As regards the concept of direct effect, the Court ruled in paragraph 54 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), that, for provisions of a treaty which are relied upon for the purpose of examining the validity of an act of EU law to be applicable, it is necessary that they ‘appear, as regards their content, to be unconditional and sufficiently precise’. In paragraph 55 of that judgment the Court held that ‘such a condition is fulfilled where the provision relied upon contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure’, which corresponds to the absence of intermediate rules required by the second criterion for direct concern. 77 ICJ Reports, p. 12. 78 See paragraphs 98 and 108 to 128. 79 My emphasis. 80 Two treaties and an agreement concluded with the Kingdom of Spain in 1767, 1861 and 1900 respectively, a treaty concluded in 1836 with the United States of America and two treaties concluded with the United Kingdom in 1856 and 1895. 81 Article 8 of the Treaty of Tetuan of 1860, which ended the First Moroccan War (1859-1860). 82 With regard to inviolability of the right to self-determination as both a peremptory norm of international law (jus cogens) and an erga omnes obligation to be complied with by all actors, in particular States and international organisations, in all circumstances, see point 259 of this Opinion and the case-law cited. 83 The right of the people of Western Sahara to self-determination was recently confirmed by the Security Council; see Resolution 2285 (2016) of 29 April 2016 (S/RES/2285). 84 See UN General Assembly Resolutions A/RES/34/37, paragraph 7, and A/RES/35/19, paragraph 10. 85 See paragraph 8 of its defence. 86 ‘Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government … accept as a sacred trust the obligation to promote to the utmost … the well-being of the inhabitants of [Western Sahara] … and, to this end: to ensure … their protection against abuses [and] to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions’. My emphasis. 87 See the list annexed to the report of 1 February 2016 of the UN Secretary-General on ‘Information from Non-Self-Governing Territories transmitted under Article 73e of the Charter of the United Nations’ (A/71/68). 88 See order No 40/2014 of 4 July 2014 of the Audiencia Nacional, sala de lo penal, pleno (National High Court, Criminal Chamber, Plenary), in ordinary proceedings No 80/2013, available at http://www.ligaproderechoshumanos.org/documentos/20140710_sala_penal_audiencia_nacional.pdf. 89 Idem. 90 Paragraph 105 of the judgment under appeal. My emphasis. 91 OJ 2001 L 109, p. 2. 92 Primarily tomatoes, garlic, cucumbers, courgettes, clementines, strawberries and chemically pure fructose (see Article 1 of Implementing Regulation No 812/2012 and the annex thereto). 93 Judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38); of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111); and of 9 July 2009, 3F v Commission (C‑319/07 P, EU:C:2009:435). 94 That case concerned an action for annulment brought against two regulations by which the Commission ended a favourable regime for rice imports from overseas countries and territories (OCT). 95 See UN General Assembly Resolutions of 21 November 1979, A/RES/34/37, paragraph 7, and of 11 November 1980, A/RES/35/19, paragraph 10. 96 See European Court of Human Rights, 8 July 2003, Hatton and Othersv.The United Kingdom (CE:ECHR:2003:0708JUD00360229710, § 128), and of 10 November 2004, Taşkin and Othersv.Turkey (CE:ECHR:2004:1110JUD004611799, § 119). 97 Judgment of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128, paragraph 77). See also, to that effect, judgments of 10 January 2006, IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraph 80); of 1 February 2007, Sison v Council (C‑266/05 P, EU:C:2007:75, paragraph 33); of 16 December 2008, Arcelor Atlantique and Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 57); of 8 June 2010, Vodafone and Others (C‑58/08, EU:C:2010:321, paragraph 52); of 17 October 2013, Schaible (C‑101/12, EU:C:2013:661, paragraph 47); and of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft (C‑348/12 P, EU:C:2013:776). 98 See judgments of 10 March 1998, Germany v Council (C‑122/95, EU:C:1998:94, paragraphs 77 and 79), and of 6 July 1995, Odigitria v Council and Commission (T‑572/93, EU:T:1995:131, paragraph 38). 99 Judgments of 21 November 1991, Technische Universität München (C‑269/90, EU:C:1991:438, paragraph 14), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 57). 100 In this kind of procedure, the obligation to conduct a prior examination of all the relevant facts, which can be linked to the principle of sound administration (see judgments of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 95, and of 7 April 2016, Holcim (Romania) v Commission, C‑556/14 P, EU:C:2016:207, paragraph 80), is a procedural guarantee provided to persons concerned by the decision which the institution intends to adopt to counterbalance the wide discretion which it enjoys in the area in question. 101 See, to that effect, judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 114). 102 See judgments of 7 September 2006, Spain v Council (C‑310/04, EU:C:2006:521, paragraphs 120 to 123); of 16 December 2008, Arcelor Atlantique and Lorraine and Others (C‑127/07, EU:C:2008:728, paragraphs 57 to 59); of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraphs 33 and 34); and of 17 October 2013, Schaible (C‑101/12, EU:C:2013:661, paragraphs 48 to 50). 103 See judgments of 7 September 2006, Spain v Council (C‑310/04, EU:C:2006:521, paragraphs 122, 133 and 134); and of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraph 34). 104 See judgments of 7 September 2006, Spain v Council (C‑310/04, EU:C:2006:521, paragraph 99); of 16 December 2008, Arcelor Atlantique and Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 59); of 17 October 2013, Schaible (C‑101/12, EU:C:2013:661, paragraphs 48 to 51); and of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128, paragraphs 77 to 88). 105 Judgment of 16 April 2013, Spain and Italy v Council (C‑274/11 and C‑295/11, EU:C:2013:240, paragraph 54). 106 See paragraph 55 of the judgment of 24 June 2014, Parliament v Council (C‑658/11, EU:C:2014:2025), where the Court ruled, in relation to Article 218(6)(a)(v) TFEU, that ‘the Treaty of Lisbon required the Parliament’s consent for the conclusion of international agreements specifically in the case of agreements covering areas to which, in the internal field, the ordinary legislative procedure laid down in Article 294 TFEU applies, or the special legislative procedure, but only where that procedure requires the consent of the Parliament’. 107 Contrary to the claim made by the Commission, none of the Security Council resolutions cited in the present case mention that the Security Council is dealing with the question of Western Sahara under Chapter VII of the Charter of the United Nations, entitled ‘Action with respect to threats to the peace, breaches of the peace, and acts of aggression’, which is confirmed by the UN Legal Counsel, who notes that the Security Council has not been seised of the question whether or not the principle of the permanent sovereignty of the people of Western Sahara over its natural resources has been breached (see letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council (S/2002/161), paragraph 13). 108 See paragraph 226 of the judgment under appeal. 109 See paragraph 225 of the judgment under appeal. 110 The question whether the General Court erred in law by accepting the relevance of these two questions is the subject of the fifth ground of appeal. 111 The judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 107), where the Court ruled that ‘the principles of customary international law … may be relied upon by an individual for the purpose of the Court’s examination of the validity of an act of the European Union in so far as, first, those principles are capable of calling into question the competence of the European Union to adopt that act … and, second, the act in question is liable to affect rights which the individual derives from EU law or to create obligations under EU law in his regard’. 112 Paragraph 244 of the judgment under appeal. 113 See, to that effect, judgment of 7 September 2006, Spain v Council (C‑310/04, EU:C:2006:521, paragraphs 99, 120 and 122). 114 See paragraphs 147, 166, 172, 199 and 211 of the judgment under appeal. 115 Council Decision 2014/198/CFSP of 10 March 2014 on the signature and conclusion of the Agreement between the European Union and the United Republic of Tanzania on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the United Republic of Tanzania (OJ 2014 L 108, p. 1). 116 Judgments of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 101), and of 14 June 2016, Parliament v Council (C‑263/14, EU:C:2016:435, paragraph 47). 117 See judgments of 24 November 1992, Poulsen and Diva Navigation (C‑286/90, EU:C:1992:453, paragraph 9); of 16 June 1998, Racke (C‑162/96, EU:C:1998:293, paragraph 45); and of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 291). 118 Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p. 136, paragraph 155. See also, to that effect, judgment of 5 February 1970 in the Case Concerning Barcelona Traction, Light and Power Company (Belgium v. Spain), ICJ Reports 1970, p. 3, paragraph 33. 119 Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p. 136, paragraph 159. 120 Under Article 53 of the Vienna Convention, ‘a peremptory norm of general international law [jus cogens] is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. 121 The norms recognised as peremptory norms of general international law coincide with those recognised as erga omnes obligations. See Crawford, J., op. cit., p. 595. 122 Judgment of the International Court of Justice of 5 February 1970 in the Case Concerning Barcelona Traction, Light and Power Company (Belgium v. Spain), ICJ Reports 1970, p. 3, paragraph 34. My emphasis. 123 See judgments of the International Court of Justice of 30 June 1995, East Timor (Portugal v. Australia), ICJ Reports 1995, p. 90, paragraph 29, and of 3 February 2006 in the Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), ICJ Reports 2006, p. 6, paragraph 64, and Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p. 136, paragraph 155. See also Report of the Study Group of the UN International Law Commission, entitled ‘Fragmentation of international law: difficulties arising from diversification and expansion of international law’, A/CN.4/L.702, 18 July 2006, paragraph 33. 124 See, for example, report of 19 April 2016 of the UN Secretary-General on the situation concerning Western Sahara, S/2016/355, paragraphs 54 to 82. 125 See Council conclusions of 25 June 2012 on Human Rights and Democracy, the EU Strategic Framework on Human Rights and Democracy and an EU Action Plan on Human Rights and Democracy, 11855/12, Annex III, I.1, p. 11. See also, to that effect, Joint Communication from the Commission to the European Parliament and the Council of 28 April 2015 (JOIN(2015) 16 final, p. 24). 126 The decision is available only in English on the European Ombudsman’s website (http://www.ombudsman.europa.eu/cases/decision.faces/en/64308/html.bookmark). 127 The Commission claims, in paragraph 70 of its response, that the General Court does not explain how human rights would be better protected in the other party to the agreement if the European Union refused to conclude the agreement. However, the General Court did not criticise the Council for failing to refuse to conclude the Liberalisation Agreement with the Kingdom of Morocco but simply for failing to take into account the general human rights situation in that country and the impact which the Agreement could have on human rights (in the EU and in Morocco). Nothing in the General Court’s reasoning means that, after conducting that assessment, the Council could not decide to conclude the agreement in question. 128 See, by analogy, European Court of Human Rights, 23 March 1995, Loizidouv.Turkey (Preliminary Objections) (CE:ECHR:1995:0323JUD001531889), which concerned acts committed by a State within the area covered by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (ECHR), but outside its own territory; 7 July 2011, Al-Skeini and Othersv.The United Kingdom (CE:ECHR:2011:0707JUD005572107), and 7 July 2011, Al-Jedda v. The United Kingdom (CE:ECHR:2011:0707JUD002702108), which concerned acts committed by a State in a territory outside the area covered by the ECHR. It is also possible that an extraterritorial effect contrary to the ECHR is produced by an act committed by a State in its own territory (see European Court of Human Rights, 7 July 1989, Soering v. The United Kingdom (CE:ECHR:1989:0707JUD001403888)). 129 See judgment of 9 September 2008, FIAMM and Others v Council and Commission (C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 187 and the case-law cited). 130 See points 254 to 258 of this Opinion. 131 Recourse could be had here to the rights recognised and protected by the International Covenant on Civil and Political Rights, signed in New York (United States of America) on 16 December 1966, to which 168 of the 193 UN Member States have now acceded, including all the EU Member States and the Kingdom of Morocco. 132 See points 257 and 258 of this Opinion. See also, to that effect, Crawford, J., op. cit., pp. 589 to 600 and 642 to 644. 133 See point 234 of this Opinion. 134 With regard to international treaties, see judgments of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraphs 51 to 55), and of 16 July 2015, Commission v Rusal Armenal (C‑21/14 P, EU:C:2015:494, paragraph 37). With regard to customary international law, see judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraphs 107 and 110). 135 See judgments of 24 November 1992, Poulsen and Diva Navigation (C‑286/90, EU:C:1992:453, paragraph 9); of 16 June 1998, Racke (C‑162/96, EU:C:1998:293, paragraph 45); and of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 291). 136 See judgment of 3 December 1996, Portugal v Council (C‑268/94, EU:C:1996:461, paragraphs 23 and 24). 137 According to the International Court of Justice, ‘the principle of permanent sovereignty over natural resources is expressed in General Assembly Resolution 1803 (XVII) of 14 December 1962 and further elaborated in the Declaration on the Establishment of a New International Economic Order (General Assembly Resolution 3201 (S.VI) of 1 May 1974) and the Charter of Economic Rights and Duties of States (General Assembly Resolution 3281 (XXIX) of 12 December 1974)’ (see judgment of 19 December 2005 in the Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports 2005, p. 168, paragraph 244). 138 See judgment of 19 December 2005 in the Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports 2005, p. 168, paragraph 244. 139 See, for example, UN General Assembly Resolutions 48/46 of 10 December 1992, 49/40 of 9 December 1994 and 50/33 of 6 December 1995. 140 See, for example, UN General Assembly Resolutions 50/33 of 6 December 2005, 52/72 of 10 December 1997, 53/61 of 3 December 1998, 54/84 of 5 December 1999, 55/138 of 8 December 2000 and 56/66 of 10 December 2001. 141 See points 257 to 259 of this Opinion. 142 See the case-law of the International Court of Justice cited in point 258 of this Opinion. 143 In the sense that the General Court did not rule that the contested decision was contrary to fundamental rights and international law, but that the Council had, before adopting the contested decision, a procedural obligation to examine its compatibility with fundamental rights and international law. 144 Judgment of 16 July 2015, Commission v Council (C‑425/13, EU:C:2015:483, paragraph 94 and the case-law cited).