OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 10 January 2018 ( 1 )

Case C‑266/16

Western Sahara Campaign UK,

The Queen

v

Commissioners for Her Majesty’s Revenue and Customs,

Secretary of State for Environment, Food and Rural Affairs

(Request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court), United Kingdom)

(Reference for a preliminary ruling — Partnership Agreement between the European Community and the Kingdom of Morocco in the fisheries sector — Protocol setting out the fishing opportunities provided for by the agreement — Acts approving the conclusion of the agreement and of the protocol — Regulations allocating among the Member States the fishing opportunities set out by the protocol — Validity in the light of Article 3 TEU and of international law — Application to Western Sahara and the waters adjacent thereto)

Table of contents

I. Introduction II. Legal context A. The Fisheries Agreement B. The 2013 Protocol C. Regulation No 764/2006 D. Decision 2013/785 E. Regulation No 1270/2013 III. The dispute in the main proceedings and the questions referred for a preliminary ruling IV. Procedure before the Court V. The third and fourth questions A. The jurisdiction of the Court B. Substance 1. Preliminary observations 2. The possibility of relying on the rules of international law in order to challenge the validity of the contested acts (a) General principles (b) The possibility of relying on the rules of international law applicable to the conclusion of international agreements relating to the exploitation of the natural resources in Western Sahara (1) The right to self-determination (i) The right to self-determination forms part of ‘human rights’ (ii) The right to self-determination as a principle of general international law, of international treaty law and as an obligation erga omnes – The European Union is bound by the right to self-determination – The right to self-determination is a rule of international law which, from the viewpoint of its content, is unconditional and sufficiently precise – The nature and the broad logic of the right to self-determination do not preclude judicial review of the contested acts (2) The principle of permanent sovereignty over natural resources (3) The rules of international humanitarian law applicable to the conclusion of international agreements concerning the exploitation of the natural resources of the occupied territory 3. The validity of Regulation No 764/2006, Decision 2013/785 and Regulation No 1270/2013 and the compatibility of the Fisheries Agreement and the 2013 Protocol with the rules of international law referred to in Article 3(5) TEU that may be relied on (a) Respect by the contested acts of the right of the people of Western Sahara to self-determination and of the obligation not to recognise an illegal situation resulting from that right and not to render aid or assistance in maintaining that situation (1) The existence of a free will of the people of Western Sahara to pursue by the contested acts its economic development and to dispose of its wealth and of its natural resources (2) The obligation not to recognise an illegal situation resulting from a breach of the right of the people of Western Sahara to self-determination and not to render aid or assistance in maintaining that situation (3) Would the international agreements applicable to Western Sahara have been concluded with the Kingdom of Morocco on a basis other than its assertion of sovereignty over that territory? (i) The Kingdom of Morocco as de facto administering power of Western Sahara (ii) The Kingdom of Morocco as occupying power of Western Sahara – The applicability of international humanitarian law to Western Sahara – The existence of a military occupation in Western Sahara – The capacity of the occupying power to conclude international agreements applicable to the occupied territory and the conditions of legality to which the conclusion of such agreements is subject (b) Compliance by the contested acts with the principle of permanent sovereignty over natural resources and with the rules of international humanitarian law applicable to the exploitation of natural resources of the occupied territory (1) The principle of permanent sovereignty over natural resources (2) Article 55 of the 1907 Hague Regulations (3) Compliance by the contested acts with the principle of permanent sovereignty over natural resources and with Article 55 of the 1907 Hague Regulations (c) The limitations on the obligation not to recognise an illegal situation 4. Summary VI. The Council’s request to limit in time the effects of the declaration of invalidity VII. Conclusion

I. Introduction

1. The present request for a preliminary ruling concerns the validity of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco ( 2 ) (‘the Fisheries Agreement’), of the Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Agreement ( 3 ) (‘the 2013 Protocol’), and of Council Regulation (EU) No 1270/2013 of 15 November 2013 on the allocation of fishing opportunities under the 2013 Protocol, ( 4 ) in that they establish and implement the exploitation by the European Union and the Kingdom of Morocco of the biological maritime resources of Western Sahara.

2. This is the first request for a preliminary ruling on the validity of the international agreements concluded by the Union and their acts of conclusion. In that sense, it raises new questions of law concerning the Court’s jurisdiction to rule on the validity of international agreements concluded by the Union, the conditions which individuals must satisfy in order to rely on the rules of international law in the context of the examination of the validity of those international agreements and also the interpretation of those rules. Those questions are of fundamental importance as regards judicial review of the external actions of the Union and the process of decolonisation of Western Sahara which has been under way since the 1960s.

3. Admittedly, a number of the answers to those questions will have political ramifications. However, as the International Court of Justice has held, ‘the fact that a legal question also has political aspects, “as, in the nature of things, is the case with so many questions which arise in international life”, does not suffice to deprive it of its character as a “legal question” and to “deprive the Court of a competence expressly conferred on it by its Statute …”. Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task …’. ( 5 )

II. Legal context

A. The Fisheries Agreement

4. The Fisheries Agreement follows on from a series of fisheries agreements concluded after 1987 between the Union and the Kingdom of Morocco. Its conclusion was approved on behalf of the Community by Regulation No 764/2006. Pursuant to Article 17 of that regulation, it entered into force on 28 February 2007. ( 6 )

5. In the words of its preamble and Articles 1 and 3, the Fisheries Agreement establishes a partnership designed to contribute to the effective implementation of the fisheries policy of the Kingdom of Morocco and, more broadly, to the sustainable preservation and exploitation of living sea resources, by means of rules on economic, financial, technical and scientific cooperation between the parties, the conditions governing access by fishing vessels flying the flag of a Member State of the Union to Moroccan fishing zones, the arrangements for policing fishing activities in those zones, and cooperation between undertakings in the fisheries sector.

6. Article 2, entitled ‘Definitions’, provides as follows: ‘For the purposes of this Agreement, the Protocol and the Annex: (a) “Moroccan fishing zone” means the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco; …’

7. Article 5, entitled ‘Access by Community vessels to fisheries in Moroccan fishing zones’, provides: ‘1. Morocco undertakes to authorise [Union] vessels to engage in fishing activities in accordance with this Agreement, including the Protocol and Annex thereto. … 4. The [Union] undertakes to take all the appropriate steps required to ensure that its vessels comply with this Agreement and the legislation governing fisheries in the waters over which Morocco has jurisdiction, in accordance with the United Nations Convention on the Law of the Sea.’

8. Article 7, entitled ‘Financial contribution’, provides: ‘1. The [Union] shall grant Morocco a financial contribution in accordance with the terms and conditions laid down in the Protocol and Annexes. This contribution shall be composed of two related elements, namely: (a) a financial contribution for access by Community vessels to Moroccan fishing zones, without prejudice to the fees due by Community vessels for the licence fee; (b) [Union] financial support for introducing a national fisheries policy based on responsible fishing and on the sustainable exploitation of fisheries resources in Moroccan waters. 2. The component of the financial contribution referred to in point (b) of paragraph 1 shall be determined by mutual agreement and in accordance with the Protocol in the light of objectives identified by the two parties to be achieved in the context of the sectoral fisheries policy in Morocco and an annual and multiannual programme for its implementation.’

9. Article 11, entitled ‘Area of application’, provides as follows: ‘This Agreement shall apply, on the one hand, to the territories in which the [FEU] Treaty … applies, under the conditions laid down in that Treaty and, on the other, to the territory of Morocco and to the waters under Moroccan jurisdiction.’

10. Article 13, entitled ‘Settlement of disputes’, provides that ‘the contracting parties shall consult each other on any dispute concerning the interpretation or application of this Agreement’.

11. According to Article 16, ‘the Protocol and the Annex and appendices thereto shall form an integral part of this Agreement’. That protocol and the Annex and the Appendices thereto had been concluded for a period of four years. ( 7 ) They are therefore no longer in force, but have been replaced by the 2013 Protocol and the Annex and Appendices thereto.

B. The 2013 Protocol

12. On 18 November 2013, the Union and the Kingdom of Morocco signed the 2013 Protocol, which sets out the fishing opportunities and financial contribution set out in the Fisheries Agreement. It entered into force on 15 July 2014. ( 8 )

13. Article 1 of that protocol, entitled ‘General principles’, provides as follows: ‘This Protocol, together with its Annex and Appendices, form an integral part of the [Fisheries Agreement] … which forms part of the [Association] Agreement … The Protocol is implemented in accordance with … Article 2 of the same Agreement concerning the respect for democratic principles and fundamental human rights.’

14. Article 2, entitled ‘Period of application, duration and fishing opportunities’, provides: ‘From the application of this Protocol and for a period of four years, the fishing opportunities granted under Article 5 of the Fisheries Agreement shall be those stated in the table attached hereto. The first subparagraph above shall apply subject to the provisions of Articles 4 and 5 of this Protocol. …’

15. In the words of Article 3, entitled ‘Financial contribution’: ‘1. The estimated total annual value of the Protocol is EUR 40000000 for the period referred to in Article 2, distributed as follows: (a) EUR 30000000 by way of the financial contribution referred to in Article 7 of the Fisheries Agreement, allocated as follows: (i) EUR 16000000 as a financial contribution for access to the resource; (ii) EUR 14000000 as support for the fisheries sector in Morocco; (b) EUR 10000000 corresponding to the estimated amount of fees owed by shipowners under the fishing licences granted under Article 6 of the Fisheries Agreement and in accordance with the provisions of Chapter I, Sections D and E, of the Annex to this Protocol. … 4. The financial contribution referred to in paragraph 1(a) shall be paid to the Treasurer-General of the Kingdom of Morocco into an account opened with the Public Treasury of the Kingdom of Morocco, the references of which shall be communicated by the Moroccan authorities. 5. Subject to the provisions of Article 6 of this Protocol, the Moroccan authorities shall have full discretion regarding the use to which this financial contribution is put.’

16. Article 6, entitled ‘Support for sectoral fisheries policy in Morocco’, provides as follows: ‘1. The financial contribution referred to in Article 3(1)(a)(ii) of this Protocol will help to develop and implement Morocco’s sectoral fisheries policy as part of the “Halieutis” strategy for developing the fisheries sector. 2. The contribution shall be allocated and managed by Morocco on the basis of the setting up by the two parties, by mutual agreement within the Joint Committee, of the objectives to be met and of the relevant annual and multiannual programme, in accordance with the “Halieutis” strategy and based on an estimation of the anticipated impact of the projects to be carried out. … 6. Depending on the nature of the projects and the duration of their implementation, Morocco shall submit a report to the Joint Committee on the implementation of projects that have been completed with sectoral support as provided for by this Protocol; the report shall include information on any social and economic consequences, particularly the impact on employment, investment and any other quantifiable repercussions of the measures taken, together with their geographical distribution. This information is to be prepared on the basis of indicators to be defined in greater detail by the Joint Committee. 7. Morocco shall also submit, prior to the expiry of this Protocol, a final report on the implementation of the sectoral support provided for by this Protocol, including the elements referred to in the paragraphs above. 8. The two parties shall, if necessary, continue to monitor the implementation of the sectoral support beyond the expiry of this Protocol or, as the case may be, in the event of its suspension in accordance with the provisions of this Protocol. …’

C. Regulation No 764/2006

17. In the words of recital 1, ‘the [Union] and the Kingdom of Morocco have negotiated and initialled a Fisheries Partnership Agreement providing [EU] fishermen with fishing opportunities in the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’.

18. According to Article 1, ‘the [Fisheries Agreement] is hereby approved on behalf of the [Union]’.

D. Decision 2013/785

19. In accordance with recital 2, ‘the Union has negotiated with the Kingdom of Morocco a new Protocol granting vessels of the Union fishing opportunities in the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco as regards fishing’.

20. In the words of Article 1, ‘the [2013 Protocol] is approved on behalf of the Union’.

E. Regulation No 1270/2013

21. In accordance with recital 2, ‘the Union has negotiated with the Kingdom of Morocco a new Protocol to the Partnership Agreement which grants European Union vessels fishing opportunities in the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco as regards fishing. The new Protocol was initialled on 24 July 2013’.

22. Article 1(1) allocates among the Member States the fishing opportunities established under the 2013 Protocol. According to that allocation, the United Kingdom of Great Britain and Northern Ireland is to receive a quota of 4525 tonnes in the industrial pelagic fishing zone.

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

23. Western Sahara Campaign UK (‘WSC’) is an independent voluntary organisation established in the United Kingdom whose aim is to support the recognition of the right of the people of Western Sahara to self-determination.

24. WSC has brought two related claims against the Commissioners for Her Majesty’s Revenue and Customs, United Kingdom (‘HMRC’) and the Secretary of State for Environment, Food and Rural Affairs, United Kingdom (‘the Secretary of State’).

25. HMRC is the defendant in the first action, whereby WSC disputes the preferential tariff treatment of products originating in Western Sahara, certified as products originating in the Kingdom of Morocco. The Secretary of State is the defendant in the second action, whereby WSC disputes the opportunity offered to the Secretary of State by the contested measures to issue licences to fish in the waters adjacent to Western Sahara.

26. In those actions, WSC disputes the legality of 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, signed in Brussels on 26 February 1996 (OJ 2000 L 70, p. 2, ‘the Association Agreement’) and the Fisheries Agreement in so far as they apply to Western Sahara. In WSC’s submission, those agreements are invalid on the ground that they are contrary to the general principles of EU law and to Article 3(5) TEU, under which the Union is required to respect international law. In that connection, WSC maintains that those agreements, concluded in the context of an illegal occupation, infringe several rules of international law, in particular the right of the people of Western Sahara to self-determination, Article 73 of the Charter of the United Nations, the principle of permanent sovereignty over natural resources and the rules of international humanitarian law applicable to military occupations.

27. HMRC and the Secretary of State contend that WSC does not have locus standi to rely on the rules of international law in order to challenge the validity of those agreements and that in any event its actions, which seek to challenge before the Courts of England and Wales the policy of the Kingdom of Morocco with respect to Western Sahara, are not justiciable. As regards the substance, they maintain that there is nothing in those agreements to substantiate the conclusion that the Union has recognised or assisted in the infringement of binding rules of international law. Furthermore, they submit that the fact that the Kingdom of Morocco continues to occupy Western Sahara does not preclude the conclusion with the Kingdom of Morocco of an agreement on the exploitation of the natural resources of that territory and that in any event the parties to those agreements recognise that that exploitation must benefit the people of that territory.

28. In that context, the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) (‘the High Court’ or ‘the referring court’) considers that ‘[the institutions of the European Union are not] always entitled to be indifferent to where the sovereign borders of a [non-member State] end, particularly where there is an unlawful occupation of territory of another [State]’, ( 9 ) without infringing the principles of the Charter of the United Nations and the principles that bind the European Union, however wide the discretion which they enjoy with respect to foreign affairs may be.

29. The referring court is of the view that even though the Kingdom of Morocco claims that Western Sahara is part of its sovereign territory, that claim is not recognised by the international community generally or by the Union in particular. On the contrary, the referring court considers that the presence of the Kingdom of Morocco is an occupation, which it even characterises as a ‘continued occupation’. ( 10 ) The question, therefore, is whether it is lawful for an organisation such as the European Union, which respects the principles of the United Nations Charter, to conclude with a third State an agreement relating to a territory outside the recognised borders of that State.

30. In that regard, the referring court considers that, even if the institutions of the Union did not make a manifest error of assessment in concluding that the continued occupation of the territory of Western Sahara by the Kingdom of Morocco does not preclude, under international law, the conclusion of any agreement for the exploitation of the natural resources of the territory, the fundamental question is whether the specific agreements concerned are contrary to certain principles of international law and whether sufficient account has been taken of the will of the population of Western Sahara and its recognised representatives.

31. According to that court, there is an arguable case of a manifest error of assessment by the institutions of the Union in their application of international law, in that those agreements were concluded without the Kingdom of Morocco recognising its status as an administrating power or complying with either the obligations arising under Article 73 of the Charter of the United Nations or the obligation to support the self-determination of the people of Western Sahara.

32. In those circumstances, the High Court decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) In the [Association Agreement], do the references to “Morocco” in Articles 9, 17 and 94 and Protocol 4 refer only to the sovereign territory of Morocco as recognised by the United Nations and the European Union … and therefore preclude products originating in Western Sahara from being imported into the EU free of customs duties pursuant to the Association Agreement? (2) If products originating in Western Sahara may be imported into the EU free of customs duties pursuant to the Association Agreement, is the Association Agreement valid, having regard to the requirement under Article 3(5) [TEU] to contribute to the observance of any relevant principle of international law and respect for the principles of the United Nations Charter and the extent to which the Association Agreement was concluded for the benefit of the Saharawi people, on their behalf, in accordance with their wishes and/or in consultation with their recognised representatives? (3) Is the [Fisheries Agreement] (as approved and implemented by Regulation No 764/2006, Decision 2013/785 and Regulation No 1270/2013) valid, having regard to the requirement under Article 3(5) [TEU] to contribute to the observance of any relevant principle of international law and respect for the principles of the United Nations Charter and the extent to which the [Fisheries Agreement] was concluded for the benefit of the Saharawi people, on their behalf, in accordance with their wishes, and/or in consultation with their recognised representatives? (4) Is the [applicant] entitled to challenge the validity of EU acts based on alleged breach of international law by the EU, having regard, in particular, to: (a) the fact that, although the [applicant] has standing under national law to impugn the validity of the EU acts, it does not assert any rights under EU law; and/or (b) the principle in Case of the Monetary Gold Removed from Rome in 1943 (ICJ Reports 1954, p. 19) that the International Court of Justice may not make findings that impugn the conduct of, or affect the rights of, a State that is not before the Court and has not consented to be bound by the decisions of the Court?’

33. By order of 23 November 2016, the referring court joined the Confédération marocaine de l’agriculture et du développement rural (Comader) as an interested party in the proceedings pending before it.

IV. Procedure before the Court

34. The request for a preliminary ruling was lodged at the Court Registry on 13 May 2016. The Spanish, French and Portuguese Governments and the Council and the European Commission lodged written observations.

35. By letter of 17 January 2017, the Court asked the referring court whether, in the light of the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973), it wished to maintain its first and second questions.

36. By letter of 3 February 2017, the referring court withdrew its first and second questions, as it considered that there was no longer any need to answer them.

37. By letter of 17 February 2017, the Court invited the parties to the main proceedings and the interveners to comment before it on any impact that the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973) might have on the answer to the third question, and to answer a number of questions within three weeks, which WSC, Comader, the Spanish and French Governments ( 11 ) and the Council and the Commission did.

38. A hearing was held on 6 September 2017, at which WSC, Comader, the Spanish and French Governments and the Council and the Commission submitted their oral observations.

V. The third and fourth questions

39. By its third question, the referring court asks the Court to rule on the validity of the Fisheries Agreement, as approved by Regulation No 764/2006 and implemented by the 2013 Protocol (approved by Decision 2013/785) and Regulation No 1270/2013, having regard to Article 3(5) TEU, which places the EU under an obligation to ‘contribute … to the strict observance … of international law [and] respect for the principles of the United Nations Charter’ and, moreover, to the extent to which that agreement was concluded for the benefit of the Saharawi people, on their behalf, in accordance with their wishes and/or in consultation with their recognised representatives.

40. By its fourth question, the referring court asks the Court to rule on the conditions on which international law may be relied on in the context of the judicial review of the acts of the Union by a request for a preliminary ruling on validity.

41. To my mind these questions are closely linked and should be examined together.

A. The jurisdiction of the Court

42. The third question targets the Fisheries Agreement (as supplemented by the 2013 Protocol) and asks the Court to rule on the validity of that international agreement concluded by the Union. However, it also refers to the acts approving and implementing that agreement that were adopted by the Council.

43. The Council contends that the Court does not have jurisdiction to give a preliminary ruling on the validity of the Fisheries Agreement, since, as an international agreement, it is not an act of the institutions within the meaning of subparagraph (b) of the first paragraph of Article 267 TFEU. In the Council’s submission, the validity of an international agreement concluded by the Union can be examined only before that agreement is concluded, by means of the opinion procedure laid down in Article 218(11) TFEU. In the alternative, the Council, supported by the Commission and the Spanish and French Governments, maintains that the request for a preliminary ruling may be considered to relate in reality to the validity of the acts approving the conclusion of the Fisheries Agreement and the 2013 Protocol, namely Regulation No 764/2006 and Decision 2013/785.

44. To my mind, that plea of lack of jurisdiction must be rejected, for the following reasons.

45. In the words of subparagraph (b) of the first paragraph of Article 267 TFEU, the Court is to have jurisdiction to give preliminary rulings concerning ‘the validity and interpretation of acts of the institutions … of the Union’.

46. It is settled case-law that, for the purposes of that provision, an international agreement concluded by the Union constitutes, ‘in so far as concerns [the Union], an act of one of the institutions of the [Union]’ within the meaning of Article 267 TFEU. ( 12 ) On that basis, the Court has often had occasion to interpret, by way of a preliminary ruling, provisions of such agreements concluded by the Union, ( 13 ) including, moreover, the Fisheries Agreement. ( 14 )

47. Furthermore, according to the Court, the review of validity in the preliminary ruling procedure extends to all acts of the institutions ‘without exception’, ( 15 ) as the FEU Treaty has ‘established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the Courts of the European Union’. ( 16 )

48. That said, the international agreements concluded by the Union are part of the international legal order, since they are concluded with a third party, and at the same time of the legal order of the Union.

49. Although in the international legal order an international agreement may be declared invalid only on one of the grounds exhaustively listed in Articles 46 to 53 of the Vienna Convention on the Law of Treaties, concluded in Vienna on 23 May 1969 ( 17 ) (‘the Vienna Convention on the Law of Treaties’), it follows from Article 218(11) TFEU that ‘the provisions of … an agreement [entered into by the European Union] must … be entirely compatible with the [EU and FEU] Treaties and with the constitutional principles stemming therefrom’. ( 18 )

50. It is in order to avoid as far as possible the legal and international political complications that would result if an international treaty concluded by the European Union were incompatible with the EU and FEU Treaties yet remained valid in international law that the authors of the Treaties created the preventive opinion procedure now laid down in Article 218(11) TFEU.

51. In order to found its jurisdiction to assess the compatibility of international agreements in the opinion procedure, the Court has also relied on the fact that that jurisdiction was in any event conferred on it by virtue of Articles 258, 263 and 267 TFEU. It has held that ‘the question whether the conclusion of a given agreement is within the power of the [Union] and whether, in a given case, such power has been exercised in conformity with the provisions of the Treaty [was], in principle a question which [might] be submitted to the Court of Justice, either directly, under Article [258 TFEU] or Article [263 TFEU], or in accordance with the preliminary procedure’. ( 19 )

52. The Court therefore has jurisdiction to examine ‘all questions that are liable to give rise to doubts as to the substantive or formal validity of the [international] agreement with regard to the [EU and FEU] Treaties’. ( 20 )

53. In that sense, in order to avoid the abovementioned complications, where the Court has delivered a negative opinion on the compatibility of an ‘envisaged’ international agreement with the EU and FEU Treaties, that agreement may not enter into force unless it has first been amended. ( 21 ) In any event, the Court will be able to review ex post facto the substantive or formal compatibility ( 22 ) of the agreement with the EU and FEU Treaties if an action for annulment of the agreement is brought before it or if a reference is made to it for a preliminary ruling on the validity of the agreement.

54. It follows from the foregoing that the Court has jurisdiction to review the act of the Council approving the conclusion of an international agreement, ( 23 ) which includes the review of the internal lawfulness of that decision in the light of the agreement in question. ( 24 ) In that context, the Court may review the lawfulness of the act of the Council (including the provisions of the international agreement the conclusion of which it approves) with regard to the EU and FEU Treaties and the constitutional principles stemming from those Treaties, including respect for fundamental rights ( 25 ) and international law, ( 26 ) in accordance with Article 3(5) TEU.

55. The Court therefore has jurisdiction to annul (in case of an action for annulment) or to declare invalid (in case of a request for a preliminary ruling) the Council decision approving the conclusion of the international agreement at issue ( 27 ) and to declare that agreement incompatible with the EU and FEU Treaties and with the constitutional principles stemming from those Treaties.

56. In those situations, the international agreement continues to bind the parties in international law and it is for the EU institutions to eliminate the incompatibilities between that agreement and the EU and FEU Treaties and with the constitutional principles stemming from those Treaties. ( 28 ) If the incompatibilities prove impossible to eliminate, the institutions must denounce the agreement or withdraw from it, ( 29 ) in accordance with the procedure laid down in Articles 56 and 65 to 68 of the Vienna Convention on the Law of Treaties ( 30 ) and, in this instance, Article 14 of the Fisheries Agreement. In that sense, an analogy may be drawn with Article 351 TFEU, which envisages the same situation as regards the Treaties concluded by Member States before their accession to the Union.

57. Last, it should be made clear that the principle stated by the International Court of Justice in the Case of the Monetary Gold removed from Rome in 1943 ( 31 ) and referred to in the fourth question for a preliminary ruling, namely that that court cannot exercise its jurisdiction to settle a dispute between two States where, in order to do so, it must examine the conduct of a third State which is not a party to the proceedings, ( 32 ) is not, as the Council and the Commission maintain, relevant in this case. That principle, which is to be found in the Statute of the International Court of Justice, does not exist in the Statute of the Court of Justice of the European Union and, in any event, could not exist in EU law since it would automatically preclude the possibility of reviewing the compatibility with the EU and FEU Treaties of the international agreements concluded by the Union if the third State that signed the agreement with the Union was not a participant in the proceedings before it.

58. In the light of those considerations, the questions for a preliminary ruling seek to establish: – the validity of Regulation No 764/2006, in that it approves the Fisheries Agreement ‘providing [EU] fishermen with fishing opportunities in the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’; ( 33 ) – the validity of Decision 2013/785, in that it approves the 2013 Protocol ‘granting vessels of the Union fishing opportunities in the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco as regards fishing’ ( 34 ) and fixing the corresponding financial contribution; – the validity of Regulation No 1270/2013, in that it allocates among the Member States the fishing opportunities established under the 2013 Protocol; and – the compatibility of the Fisheries Agreement and the 2013 Protocol with the EU and FEU Treaties and with the constitutional principles stemming from those Treaties, including, in particular, the protection of fundamental rights and observance of international law which Article 3(5) TEU imposes on the European Union’s external action.

59. In what follows I shall refer to those acts together as ‘the contested acts’.

B. Substance

1. Preliminary observations

60. Both for the parties to the main proceedings and for the interveners before the Court, the contested acts are applicable to the territory of Western Sahara and to the adjacent waters. However, that situation is not clear from the wording of the Fisheries Agreement and the 2013 Protocol. Indeed, none of their provisions expressly refers to Western Sahara.

61. It is therefore appropriate to examine first of all whether the contested acts are applicable to Western Sahara, because, if they were not, their validity could not be challenged by reference to the rules to which the referring court and WSC refer. ( 35 )

62. To my mind, an interpretation of the Fisheries Agreement and the 2013 Protocol consistent with the rules on the interpretation of treaties set out in Article 31 of the Vienna Convention on the Law of Treaties leads to the conclusion that they are indeed applicable to the territory of Western Sahara and to the adjacent waters, for the following reasons.

63. According to Article 31(1) of that convention, ‘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’. According to Article 31(2), ‘the context … shall comprise, in addition to the text, including its preamble and annexes[,] any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty’. The context therefore includes the 2006 Protocol, which is no longer in force but the content of which was, in essence, as regards the scope of the Fisheries Agreement, the same as that of the 2013 Protocol.

64. Article 31(3) of that convention also requires that, together with the context, ‘any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’ is to be taken into account. Therefore, when interpreting the scope of the Fisheries Agreement, it is necessary to take the relevant provisions of the 2013 Protocol into account.

65. In this instance, in accordance with Article 11 thereof, the Fisheries Agreement is to apply, so far as the Kingdom of Morocco is concerned, ‘to the territory of Morocco and to the waters under Moroccan jurisdiction’. Article 2(a) of that agreement defines the ‘Moroccan fishing zone’ in which the fishing activities provided for in that agreement take place as ‘the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’. ( 36 )

66. Those terms are specified in Appendices 2 and 4 to the Annex to the 2013 Protocol. At the Court’s request, the Commission produced six charts showing the extent of the fishing zones in accordance with the specifications set out in those appendices:

67. As is apparent from those charts, fishing zone No 3 (cat. 3: small-scale fishing/south) extends south of parallel 30°40’00”N and beyond three nautical miles; fishing zone No 4 (cat. 4: demersal fishing) extends south of parallel 29°N and beyond the 200 meters isobath for trawlers and beyond 12 nautical miles for longliners; fishing zone No 5 (cat. 5: tuna fishing) covers all of Morocco’s Atlantic zone beyond 3 nautical miles, apart from a protected area east of a line from 33°30’N/7°35’W to 35°48’N/6°20’W; and fishing zone No 6 (cat. 6: industrial pelagic fishing) extends south of parallel 29°N and beyond 15 nautical miles for freezer trawlers and beyond 8 nautical miles for RSW trawlers. ( 37 )

68. As regards the latter fishing zone, it is apparent from the minutes of the third Joint Committee of the Fisheries Agreement, which met in Brussels on 17 and 18 March 2008, that the Union and the Kingdom of Morocco agreed that the activity in that zone could operate only south of parallel 26°07’N. In fact, Chapter III of the Annex to the 2013 Protocol and Appendix 4 to that annex allow the Kingdom of Morocco to alter those geographical coordinates unilaterally provided that any change is notified to the Commission one month in advance.

69. The southern edge of those fishing zones is not specified, either in the Fisheries Agreement or in the 2013 Protocol. ( 38 ) Since the border between Western Sahara and the Kingdom of Morocco is at parallel 27°42’N (Pointe Stafford), ( 39 ) only fishing zone No 6, by subsequent agreement between the Union and the Kingdom of Morocco, explicitly covers the waters adjacent to Western Sahara. However, it is apparent from the charts produced by the Commission that fishing zones Nos 3 to 5 go as far as the maritime border between the Islamic Republic of Mauritania and Western Sahara, thus covering the waters adjacent to Western Sahara.

70. Furthermore, the quantities of catch per fishing zone stated by the Commission at the hearing confirm that the Fisheries Agreement and the 2013 Protocol apply almost exclusively to the waters adjacent to Western Sahara. ( 40 ) According to the Commission’s figures, catches in fishing zone No 6 alone represent around 91.5% of total catches taken within the framework of the Fisheries Agreement and the 2013 Protocol. That clearly shows that the application of the Fisheries Agreement and the 2013 Protocol to the waters adjacent to Western Sahara is precisely what the parties envisaged from the outset.

71. As regards the application of the Fisheries Agreement and the 2013 Protocol on land, Article 3(1)(a)(ii) of the 2013 Protocol provides that a part of the financial contribution paid by the Union to the Kingdom of Morocco and equivalent to EUR 14 million is to be paid as support for the fisheries sector in the Kingdom of Morocco, which, according to the Council and the Commission, includes investments in infrastructure on the territory of Western Sahara. In addition, Chapter X of the Annex to the 2013 Protocol provides that a part of the catches must be landed in Moroccan ports, which, according to the Council and the Commission, includes the ports of Western Sahara. Last, the Fisheries Agreement and the 2013 Protocol should, according to the Council and the Commission, benefit the people of Western Sahara, which in itself constitutes an application on land of that agreement and that protocol.

72. In the second place, the assertion that the Fisheries Agreement is applicable to Western Sahara and to the adjacent waters is supported by its genesis. As the Commission observes, the origin of the Fisheries Agreement lies in the fisheries agreements concluded with the Kingdom of Morocco by the Kingdom of Spain before the latter acceded to the Union, ( 41 ) which covered the waters adjacent to Western Sahara as waters under Moroccan jurisdiction. ( 42 ) I would also observe that the fisheries agreements concluded between the EU and the Kingdom of Morocco after 1988 have already given rise to a number of cases relating to fishing in the waters adjacent to Western Sahara. ( 43 ) In that sense, I consider that, like their predecessors, the Fisheries Agreement and the 2013 Protocol merely reprise and pursue the fishing activities of the Kingdom of Spain that already existed in the waters adjacent to Western Sahara before that Member State acceded to the European Union.

73. In the third and last place, Article 31(4) of that convention gives fundamental importance to the intentions of the parties when it states that ‘a special meaning shall be given to a term if it is established that the parties so intended’. To my mind, it was the intention of the European Union and the Kingdom of Morocco that the Fisheries Agreement should apply to Western Sahara and to the adjacent waters as waters under Moroccan sovereignty or jurisdiction. In 1976, the Kingdom of Morocco annexed the part of Western Sahara north of a straight line from the point at which the Atlantic coast intersects parallel 24°N to the point at which parallel 23°N intersects meridian 13°W, ( 44 ) in accordance with the Convention on the line of the State border established between the Islamic Republic of Mauritania and the Kingdom of Morocco, concluded in Rabat on 14 April 1976. ( 45 ) The annexation of Western Sahara by the Kingdom of Morocco was supplemented in 1979 when the southern part of Western Sahara ( 46 ) which that convention had granted to the Islamic Republic of Mauritania, was joined to the Kingdom of Morocco. The Kingdom of Morocco thus considers that Western Sahara comes under its sovereignty and that, consequently, the waters adjacent to Western Sahara are covered by the scope of the Fisheries Agreement and the 2013 Protocol.

74. As regards the European Union, it is clear from the declarations made by a number of Member States within the Council on the occasion of the approval of the 2013 Protocol that both it and the Fisheries Agreement are applicable to Western Sahara. ( 47 ) It was for that reason, moreover, that, as the referring court and the Commission explain, the European Parliament had initially blocked the renegotiation of the protocol establishing the fishing opportunities and the financial contribution provided for in the Fisheries Agreement. It was also for that reason that the Kingdom of Denmark and the Kingdom of Sweden voted against the approval of the conclusion of that protocol, that the Kingdom of the Netherlands, ( 48 ) the Republic of Finland and the United Kingdom abstained and that the Federal Republic of Germany, Ireland and the Republic of Austria expressed reservations. ( 49 )

75. In that context, contrary to the Association Agreement at issue in the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973), the parties’ intention seems to me to be manifestly established: the Fisheries Agreement and the 2013 Protocol are applicable to Western Sahara and to the waters adjacent thereto. The Court must therefore examine whether that intention, implemented by the contested acts, affects their legality under Article 3(5) TEU and the rules of international law on which WSC relies.

2. The possibility of relying on the rules of international law in order to challenge the validity of the contested acts

(a) General principles

76. WSC’s arguments seek, in essence, to challenge the contested acts from two aspects. In the first place, WSC maintains that the European Union cannot lawfully conclude with the Kingdom of Morocco agreements applicable to the territory of Western Sahara and the adjacent waters. In the second place, even on the assumption that the European Union could lawfully conclude such agreements, WSC maintains that the contested acts are, as regards their content, invalid in the light of Article 3(5) TEU and international law. For the purposes of its argument, WSC relies on a number of rules of international law, including, in particular, the right of peoples to self-determination, Article 73 of the Charter of the United Nations, the principle of permanent sovereignty over natural resources and international humanitarian law in so far as those rules govern the conclusion of international agreements applicable to occupied territories and the exploitation of their natural resources. At the hearing, WSC made clear that it was not challenging the validity of the contested acts in the light of international law of the sea.

77. In that context, on the basis of the principles stated in the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), the Secretary of State, Comader, the Spanish, French and Portuguese Governments, the Council and the Commission contend that WSC cannot rely on those rules of international law.

78. It should be borne in mind that, according to paragraphs 51 to 55 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), the ability to rely on the rules of international treaty law is subject to the following conditions: the EU must be bound by those rules; their content must be unconditional and sufficiently precise; and, last, their nature and their broad logic must not preclude judicial review of the contested act.

79. In the words of paragraphs 101 to 103 and 107 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), the possibility of relying on the rules of customary international law is subject to the following conditions: those rules must be capable of calling in question the competence of the European Union to adopt the contested act and the act must be liable to affect rights which the individual derives from EU law or to create obligations under EU law in his regard.

80. To my mind, if individuals must satisfy certain conditions in order to be able to plead the rules of international law in the context of judicial review of acts of the Union, the principles set out in that judgment are not automatically capable of being transposed to the present case. In effect, those principles relate to judicial review of unilateral acts of purely internal secondary law (regulations, directives, etc.), ( 50 ) whereas, as the Commission observes, ( 51 ) the present case raises the separate issue of the validity of an international agreement concluded by the Union by means of the act approving its conclusion (treaty secondary law). ( 52 )

81. In that regard, it should be borne in mind that the capacity of member of the United Nations Organisation (‘the United Nations’) is restricted to States. ( 53 ) Not being a member of the United Nations, the European Union is not a party to the Statute of the International Court of Justice, which members of the United Nations are pursuant to Article 93 of the United Nations Charter. In addition, Article 34 of the Statute of the International Court of Justice states that only States may be parties in cases before it.

82. It follows that review of the external action of the European Union does not fall within the jurisdiction of an international court or even of the International Court of Justice. Consequently, even if its action infringed a peremptory norm of international law within the meaning of Article 53 of the Vienna Convention on the Law of Treaties or the obligations ‘erga omnes’ of customary international law, ( 54 ) no international court would have jurisdiction to adjudicate on such an infringement.

83. However, certain international agreements allow the EU to ‘submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions’, an option recognised by the Court’s case-law. ( 55 )

84. That does not apply to the Fisheries Agreement, Article 13 of which, entitled ‘Settlement of disputes’, provides that ‘the contracting parties shall consult each other on any dispute concerning the interpretation or application of this Agreement’. Since no independent and impartial court, with jurisdiction to resolve any disputes arising under the Fisheries Agreement, has been created, the settlement of such disputes depends on the goodwill of the parties, and each of them can therefore easily block such settlement. ( 56 )

85. If the Court of Justice is therefore, by default, the only court with jurisdiction to review the external action of the Union and to ascertain that that action contributes to ‘the strict observance … of international law [and] respect for the principles of the United Nations Charter’, ( 57 ) it is scarcely surprising that it has held that ‘exercise of the powers delegated to the [EU] institutions in international matters cannot escape judicial review … of [validity]’. ( 58 )

86. In that context, although individuals must satisfy certain conditions in order to be able to rely on international law in order to challenge the compatibility of an international agreement concluded by the European Union with Article 3(5) TEU, those conditions cannot be such as to render effective judicial review of the external action of the Union impossible in practice.

87. However, that would in my view be the case if the principles set out in the situation referred to in the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), were transposed as such to review of the validity of the contested acts.

88. In fact, some of the rules of international law relied on in the present case are both rules of customary law and rules of treaty law, since they have been codified in a number of international treaties and conventions, whereas other rules, such as the right to self-determination, are part of general international law ( 59 ) and, on that basis, do not come exclusively under international treaty or customary law, the possibility of relying on which was addressed by the Court in its judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864).

89. Furthermore, while it was with the objective of not automatically precluding the possibility of relying on the rules of customary international law that the Court imposed different conditions applicable to such rules from those applicable to international treaty law, it would be contrary to that same objective if, as the Secretary of State, the Spanish, French and Portuguese Governments and the Council and the Commission propose, the possibility of relying on the rules of general international law were made subject to the conditions governing the possibility of relying on the rules of customary international law, where they satisfy the conditions that determine the possibility of relying on the rules of international treaty law.

90. Such a solution would automatically preclude the possibility for individuals to rely on rules, however essential, of international law, such as the peremptory norms of general international law or the obligations erga omnes of international law, for the following reasons.

91. First of all, according to the first of the conditions governing the possibility of relying on the rules of customary international law laid down by the Court where the contested act is an act of purely internal unilateral secondary law, the rules relied on must be capable of calling in question the competence of the Union to adopt that act. I recall that in the case that gave rise to the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), and in the cases that gave rise to the judgments cited in paragraph 107 of that judgment, the competence of the Union to adopt the contested act, which was claimed to produce extraterritorial effects, was at issue.

92. In the present case, no one is challenging the competence ( 60 ) of the Union to conclude the Fisheries Agreement and the 2013 Protocol or to adopt Regulation No 764/2006, Decision 2013/785 and Regulation No 1270/2013. On the contrary, WSC is challenging the compatibility of the Fisheries Agreement and of the 2013 Protocol with primary EU law and the internal lawfulness of Regulation No 764/2006, Decision 2013/785 and Regulation No 1270/2013. It would be absurd to limit review of the contested acts solely to the question of the competence of the Union and automatically to preclude substantive review of those acts by reference to the most fundamental norms of international law which are relied on in the present case.

93. Next, the application of the second condition governing the possibility of relying on the rules of customary international law in the context of a case such as that at issue is even more problematic. According to that condition, the contested act must be liable to affect rights which the individual derives from EU law or to create obligations under EU law with regard to him. ( 61 )

94. In the present case, the contested acts confer rights and obligations only on the European Union and the Kingdom of Morocco. I see no provision in those acts that would create rights or obligations with regard to individuals, other than, potentially (but I doubt it), the EU shipowners whose vessels have a fishing licence issued under the Fisheries Agreement. Therefore, even on the assumption that a category of individuals might initiate a judicial review of the contested acts on the basis of that condition, such a category would consist exclusively of those who benefit from the Fisheries Agreement and therefore have no interest in challenging it before the Court.

95. Last, why should judicial review be limited ‘to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying those principles’, ( 62 ) when those principles have ‘the same degree of precision as a provision of an international agreement’ ( 63 ) because they have been codified?

96. To conclude on this point, I consider that in the context of the judicial review of the international agreements concluded by the European Union and of the acts of the European Union approving or implementing such agreements, the possibility of relying on the rules of international law must indeed be subject to certain conditions, but independently of whether they strictly belong to one or more sources of international law according to the classification set out in Article 38(1) of the Statute of the International Court of Justice. Those conditions are the ones set out in paragraphs 53 to 55 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), namely that the Union must be bound by the rule relied on, the content of which must be unconditional and sufficiently precise and, last, the nature and the broad logic of which do not preclude judicial review of the contested act.

97. It is by reference to those principles that I shall examine the possibility of relying on the rules of international law relied on by WSC that are relevant in the present case.

(b) The possibility of relying on the rules of international law applicable to the conclusion of international agreements relating to the exploitation of the natural resources in Western Sahara

98. By the contested acts, the European Union concluded with the Kingdom of Morocco and implemented an international agreement which provides for the exploitation by the Union of the fish resources of Western Sahara. In that context, I shall examine the possibility of relying on the rules of international law that might call in question both the conclusion with the Kingdom of Morocco of an international agreement applicable to Western Sahara and the adjacent waters and the exploitation of its natural resources. In doing so, I shall take into account the facts that the Kingdom of Morocco regards itself as having sovereignty over Western Sahara; that from the viewpoint of the EU institutions, the Kingdom of Morocco is the de facto administering power of Western Sahara; and that in the view of the referring court and WSC, the Kingdom of Morocco is the occupying power of Western Sahara.

(1) The right to self-determination

(i) The right to self-determination forms part of ‘human rights’

99. First of all, I consider that the right to self-determination is not subject to the conditions governing the possibility of relying on the rules of international law because it forms part of human rights.

100. As the Court held in paragraphs 284 and 285 of the judgment 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), respect for human rights is a condition of the lawfulness of EU acts and measures incompatible with respect for human rights are not acceptable in the EU legal order. Thus, the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EU and FEU Treaties, such as Article 3(5) TEU and Article 21 TEU, which provide that the Union’s external action is to respect human rights. It is therefore incumbent on the Court to ensure that human rights are respected in the context of the full system of remedies established by the EU and FEU Treaties.

101. According to the Court’s settled case-law, ‘fundamental rights form an integral part of the general principles of law whose observance the Court ensures’. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories’. ( 64 )

102. All the Member States (and the Kingdom of Morocco) are parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR) ( 65 ) and the International Covenant on Civil and Political Rights (ICCPR), ( 66 ) signed in New York on 16 December 1966, of which the common Article 1 provides as follows: ‘1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations’. ( 67 )

103. Furthermore, Title VIII of the Helsinki Final Act of 1975, entitled ‘Equal rights and self-determination of peoples’, to which Article 21(2)(c) TEU refers and to which all Member States are parties, enshrines the right to self-determination in terms almost identical to those of Article 1 common to the ICESCR and the ICCPR. That title provides as follows: ‘The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States. By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development. The participating States reaffirm the universal significance of respect for and effective exercise of equal rights and self-determination of peoples for the development of friendly relations among themselves as among all States; they also recall the importance of the elimination of any form of violation of this principle.’

104. The right to self-determination is therefore a human right, which has been recognised as such by several international authorities and instruments and also in academic literature. ( 68 ) According to the International Court of Justice, the beneficiaries of that right are the peoples of non-self-governing territories and people subject to alien subjugation, ( 69 ) domination and exploitation. ( 70 )

(ii) The right to self-determination as a principle of general international law, of international treaty law and as an obligation erga omnes

105. In any event, as a rule of general international law ( 71 ) and an obligation erga omnes ( 72 ) which is codified in a number of international treaty instruments, ( 73 ) the right to self-determination satisfies the criteria governing the possibility of relying on it set out in point 96 of this Opinion, namely that it is binding on the Union, that its content is unconditional and sufficiently precise and that its nature and its broad logic do not preclude judicial review of the contested acts.

– The European Union is bound by the right to self-determination

106. As the Court held in its judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973), the Union is bound by the right to self-determination, which is a legally enforceable right erga omnes and one of the essential principles of international law. ( 74 ) On that basis, ‘[it] forms part of the rules of international law applicable to relations between the European Union and the Kingdom of Morocco’. ( 75 )

107. The right to self-determination is enshrined in Article 1(2) of the United Nations Charter. ( 76 ) Article 3(5) TEU, Article 21(1) TEU, Article 21(2)(b) and (c) TEU and Articles 23 TEU and 205 TFEU require the European Union to respect the principles of the United Nations Charter. Declaration 13 concerning the common foreign and security policy, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed in Lisbon on 13 December 2007, states that ‘the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations’. ( 77 )

108. In addition, the right to self-determination is among the principles of the Helsinki Final Act referred to in Article 21(2)(c) TEU. ( 78 )

109. Last, as is apparent from Article 1 of the 2013 Protocol, its implementation is subject to respect for democratic principles and fundamental human rights, which includes respect for the right of peoples to self-determination.

– The right to self-determination is a rule of international law which, from the viewpoint of its content, is unconditional and sufficiently precise

110. As the Court held in paragraph 55 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), ‘[this] condition … is satisfied where the provision relied on contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure’.

111. As shown in paragraphs 90, 92 and 93 of the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973), where the Court applied that right to Western Sahara and its people without expressing any doubt as regards its content and/or its scope, the right to self-determination satisfies that condition.

112. The fact that the International Court of Justice held that the construction of a wall by Israel in the territory of Transjordan constituted a violation of the right of the Palestinian people to self-determination because it was tantamount to a de facto annexation ( 79 ) shows that the right to self-determination is a right the content of which is sufficiently clear and precise to be applied.

113. Indeed, its content is sufficiently detailed in a number of instruments.

114. In that regard, the International Court of Justice has established, in Article 1(2) of the United Nations Charter, the existence of a ‘right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’. ( 80 )

115. The content of that right is stated in detail in Article 1 common to the ICESCR and the ICCPR ( 81 ) and the details of its implementation are set out in a number of United Nations General Assembly resolutions, including Resolutions 1514 (XV), 1541 (XV) and 2625 (XXV), to which the International Court of Justice has often referred. ( 82 )

116. In that regard, Resolution 1514 (XV) states the following: ‘1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation. 2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. … 4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected. …’

117. Resolution 1541 (XV) establishes the Principles which should guide the administering powers in the exercise of their obligations under Article 73 of the United Nations Charter. It should be noted that Principle VI provides that the right to self-determination is considered to have been exercised when the non-autonomous territory becomes a sovereign independent State or when it associates freely with an independent State or when it is integrated with an independent State.

118. As regards the integration of an independent State, Principle IX(b) states that ‘the integration should be the result of the freely expressed wishes of the territory’s peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The [United Nations] could, when it deems it necessary, supervise these processes’.

119. Last, Resolution 2625 (XXV) contains the ‘Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations’. Under the heading ‘The principle of equal rights and self-determination of peoples’, that resolution imposes on all States ‘the duty to promote, through joint and separate action, realisation of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter [of the United Nations]’.

120. It also imposes on States ‘the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence’.

121. As regards, more particularly, the non-self-governing territories, such as Western Sahara, that resolution states such a territory has ‘a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the [United Nations] Charter shall exist until the people of the … Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles’. ( 83 )

122. Last, in the general part, Resolution 2625 (XXV) declares that ‘the principles of the Charter which are embodied in this Declaration constitute basic principles of international law, and [the General Assembly] consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles’.

123. It follows from the foregoing that the right to self-determination is not subjected, in its implementation or in its effects, to the adoption of any subsequent measure.

124. In the present case, as the International Court of Justice and this Court have held, the people of Western Sahara enjoy the right to self-determination. ( 84 )

– The nature and the broad logic of the right to self-determination do not preclude judicial review of the contested acts

125. In paragraph 89 of the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973), the Court held that ‘the General Court was obliged to take [the right to self-determination] into account’ in the context of the action for annulment of the Association Agreement brought by Front Polisario. It follows that the nature and the broad logic of that right do not preclude judicial review of the acts of the Union.

126. In fact, Article 103 of the United Nations Charter provides that ‘in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’.

127. In addition, according to the International Court of Justice, ‘the right of peoples to self-determination has an erga omnes character’. ( 85 ) That means that ‘such obligations are by their very nature “the 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”’. ( 86 ) In that sense, the International Court of Justice has held that ‘all States are under an obligation not to recognise the illegal situation resulting from the [breach of an obligation erga omnes]. They are also under an obligation not to render aid or assistance in maintaining the situation created by such [breach]. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the [breach], to the exercise by the … people [concerned, in this instance the Palestinian people] of its right to self-determination is brought to an end’. ( 87 )

128. Last, the right to self-determination is frequently cited as a peremptory norm of international law, infringement of which may render an international agreement invalid in accordance with Article 53 of the Vienna Convention on the Law of Treaties. ( 88 ) It should be emphasised that, during the advisory opinion proceedings before the International Court of Justice in the Western Sahara case, the Kingdom of Spain recognised that the right to self-determination constituted in itself a peremptory norm of international law, ( 89 ) whereas the Kingdom of Morocco recognised that the principle of decolonisation, of which self-determination is one form, is a peremptory norm. ( 90 )

129. It follows that, far from precluding judicial review, the nature and the broad logic of the right to self-determination require the Court to determine whether, by the contested acts, the Union respected that right, did not recognise an illegal situation resulting from a breach of that right and did not render aid or assistance in maintaining such a situation. ( 91 )

(2) The principle of permanent sovereignty over natural resources

130. The principle of permanent sovereignty over natural resources guarantees the sovereign right of each State and each people to the free disposition of the natural wealth and resources of its territory in the interest of national development and of the well-being of its people. ( 92 ) It is a principle of customary international law ( 93 ) which as such is binding on the Union.

131. As the Under-Secretary-General for Legal Affairs of the United Nations, the Legal Counsel, Hans Corell, observed in his letter of 29 January 2002 to the President of the United Nations Security Council, ‘[the] exact legal scope and implications [of the principle of permanent sovereignty over natural resources] are still debatable’. ( 94 )

132. In fact, his legal opinion is testimony to that difficulty, since he uses different expressions to characterise what the exploitation of natural resources for the benefit of the people of the non-self-governing territory is. He speaks of exploitation which is not carried out ‘in disregard of the needs, interests and benefits of the people [of the non-self-governing territory]’ ( 95 ) or of exploitation ‘on … behalf [of the peoples of the non-self-governing territories] or in consultation with their representatives’ ( 96 ) and concludes that exploitation cannot proceed ‘in disregard of the interests and wishes of the people of [the non-self-governing territory]’. ( 97 )

133. Thus, in spite of the variation in terminology, it is certain that, at a minimum, the exploitation of natural resources must be carried out for the benefit of the people of the non-self-governing territory, which is sufficient to render that criterion of the principle of permanent sovereignty over natural resources sufficiently clear and precise.

134. It is also capable of forming the basis for a judicial review of the contested acts. In fact, the Parliament had initially blocked the adoption of the protocol eventually concluded in 2013, as it considered that the protocol did not provide sufficient safeguards to ensure that the fishery exploitation of the natural resources of Western Sahara by European Union vessels would be done for the benefit of the people of that territory. In addition, the Council and the Commission accept that the criterion of benefit for the people of Western Sahara is a condition of the lawfulness of the agreements concluded between the European Union and the Kingdom of Morocco which relate to Western Sahara.

(3) The rules of international humanitarian law applicable to the conclusion of international agreements concerning the exploitation of the natural resources of the occupied territory

135. In the referring court’s view, and in the submissions of WSC and of HMRC and the Secretary of State, Morocco’s presence in Western Sahara constitutes an occupation. ( 98 )

136. In that regard, I would observe that the question whether the Kingdom of Morocco is or is not the occupying power of Western Sahara and whether it concluded the Fisheries Agreement and the 2013 Protocol in that capacity is a question of interpretation of international law to which the conditions governing the possibility of relying on international law in EU law do not apply.

137. However, if the Kingdom of Morocco is the occupying power of Western Sahara (a question to which I shall return below ( 99 )), it must be possible to rely on the rules of international humanitarian law, codified in the regulations annexed to the Hague Convention of 18 October 1907 Respecting the Laws and Customs of War on Land (‘the 1907 Hague Regulations’) and the Geneva Convention of 12 August 1949 Relative to the Protection of Civilian Persons in Time of War (‘the Fourth Geneva Convention’), which concern the conclusion of international agreements applicable to the occupied territory (Article 43 of the 1907 Hague Regulations and the second paragraph of Article 64 of the Fourth Geneva Convention) and the exploitation of the natural resources of the occupied territory (Article 55 of the 1907 Hague Regulations).

138. Indeed, those provisions thus satisfy the criteria governing the possibility of relying on international law set out in point 96 of this Opinion.

139. In the first place, the provisions of the 1907 Hague Regulations and the Fourth Geneva Convention are intransgressible principles of customary international law which can be relied on erga omnes ( 100 ) and as such are binding on the European Union.

140. In the second place, their content is sufficiently precise and unconditional in that the obligations which they impose on the occupying powers are not subject, in their implementation or their effects, to the adoption of any subsequent measure.

141. In the third and last place, their nature and their broad logic as intransgressible rules do not preclude judicial review of the contested acts, and in particular of Regulation No 764/2006, Decision 2013/785 and Regulation No 1270/2013 in that they approve and implement an exploitation of the natural resources of Western Sahara agreed between the European Union and the Kingdom of Morocco. In fact, the European Union is under an obligation not to recognise an illegal situation resulting from a breach of those provisions and not to render aid or assistance in maintaining the situation created by that breach. ( 101 )

142. Having determined the rules of international law that may be relied on, I shall now examine the compatibility of the contested acts with those rules.

3. The validity of Regulation No 764/2006, Decision 2013/785 and Regulation No 1270/2013 and the compatibility of the Fisheries Agreement and the 2013 Protocol with the rules of international law referred to in Article 3(5) TEU that may be relied on

(a) Respect by the contested acts of the right of the people of Western Sahara to self-determination and of the obligation not to recognise an illegal situation resulting from that right and not to render aid or assistance in maintaining that situation

143. In its judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973), the Court held that the Association Agreement concluded between the European Union and the Kingdom of Morocco, which, according to its wording, is to apply to ‘the territory of the Kingdom of Morocco’, is not applicable to the territory of Western Sahara since such application would be incompatible with the right of the people of that territory to self-determination and also with Articles 29 (territorial application of treaties) and 34 (principle of the relative effect of treaties, according to which treaties must not harm or profit third parties without their consent) of the Vienna Convention on the Law of Treaties. ( 102 )

144. According to the Council and the Commission, the present case must be distinguished from the case that gave rise to the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973), in that, unlike the Association Agreement, the Fisheries Agreement and the 2013 Protocol are applicable to Western Sahara. According to their reading of that judgment, the problem of the Association Agreement was that it was applied to Western Sahara without being legally applicable there, because such application would be incompatible with the right of the people of that territory to self-determination and with Articles 29 (territorial application of treaties) and 34 (principle of the relative effect of treaties, according to which treaties must not harm or profit third parties without their consent) of the Vienna Convention on the Law of Treaties. It is on the basis of that argument that the solution envisaged by the Council and the Commission in order to render the application of the Association Agreement to Western Sahara consistent with the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973) would be to extend its scope by agreement in the form of an exchange of letters between the European Union and the Kingdom of Morocco so that Western Sahara would be expressly covered.

145. I am not persuaded by that line of argument. If the application to Western Sahara of an international agreement concluded with the Kingdom of Morocco, the territorial scope of which does not expressly include that territory, would be incompatible with the right of the people of that territory to self-determination, then an international agreement which, like the Fisheries Agreement and the 2013 Protocol, is applicable to the territory of Western Sahara and the adjacent waters ( 103 ) and authorises the exploitation by the European Union ( 104 ) of the fishery resources of Western Sahara would a fortiori also be incompatible with that right.

146. A fortiori, that argument seems to me to be sufficient to establish a breach of the right of the people of Western Sahara to self-determination. In the interest of completeness, I would add that the contested acts do not respect the right of the people of Western Sahara to self-determination in that they do not correspond to either the free pursuit of its economic development or to the free disposal of its wealth and of its natural resources ( 105 ) and that in any event, even if they did not in themselves breach the right to self-determination, they would not respect the European Union’s obligation not to recognise an illegal situation resulting from the breach of the right of the people of Western Sahara to self-determination and not to render aid or assistance in maintaining that situation. ( 106 )

(1) The existence of a free will of the people of Western Sahara to pursue by the contested acts its economic development and to dispose of its wealth and of its natural resources

147. The fact that no such will exists seems to be borne out by the following facts, ( 107 ) the substance of which was pleaded by WSC before the referring court and set out in its judgment. ( 108 )

148. On 20 December 1966, the United Nations General Assembly adopted Resolution 2229 (XXI) on the Question of Ifni and Spanish Sahara, in which it ‘reaffirm[ed] the inalienable right of the peoples of … Spanish Sahara to self-determination’ and invited the Kingdom of Spain, in its capacity as administering Power, to determine at the earliest possible date ‘the procedures for the holding of a referendum under [United Nations] auspices with a view to enabling the indigenous population of the Territory to exercise freely its right to self-determination’.

149. On 20 August 1974, the Kingdom of Spain informed the United Nations that it proposed to hold, under United Nations auspices, a referendum in Western Sahara. ( 109 )

150. In May 1975, in spite of the difficulties encountered, the United Nations Visiting Mission to Western Sahara ‘was able to conclude, after its stay in the territory, that the majority of the population within Spanish Sahara was manifestly in favour of independence’. ( 110 )

151. On 16 October 1975, the International Court of Justice, following a request by the United Nations General Assembly in the context of its work relating to the decolonisation of Western Sahara, delivered an Advisory Opinion according to which Western Sahara was not a territory belonging to no one (terra nullius) at the time of colonisation by Spain and also that although certain material showed the existence, at the time of Spanish colonisation, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara, it did not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco. ( 111 ) The Court therefore did not find legal ties of such a nature as might affect the application of United Nations General Assembly Resolution 1514 (XV) as regards the decolonisation of Western Sahara and, in particular, the application of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory. ( 112 )

152. In a speech delivered on the day of the publication of the Advisory Opinion, ‘the King of Morocco took the view that “the whole world [had] recognised that [Western] Sahara belonged” to the Kingdom of Morocco and that it only remained for the Kingdom “to peacefully occupy that territory”’; he called, to that end, for the organisation of a march in which 350000 persons took part, called ‘the Green March’. ( 113 )

153. Upon application by the Kingdom of Spain, the United Nations Security Council requested the United Nations Secretary-General, K. Waldheim, to report on the results of his consultations with the parties concerned, including in particular the Kingdom of Morocco. ( 114 )

154. The Kingdom of Morocco’s argument, described in that report, was that a referendum was unnecessary because the International Court of Justice had recognised the historic links of allegiance between the Sultan of Morocco and the tribes traditionally living in the territory of Western Sahara and that, in any event, ‘the populations of the territory had already de facto exercised their right to self-determination and had declared themselves in favour of returning the territory to Morocco’, the most recent evidence being ‘the oath of allegiance to the King of Morocco taken on behalf of the Saharawi tribes by [Mr Khatri Ould Said a Ould El Jomaini], President of the Yema’a[ ( 115 )]’ at a ceremony held on 4 November 1975 at the Palace of Agadir. ( 116 )

155. Following the Kingdom of Spain’s protests against the Green March, the United Nations Security Council adopted, on 6 November 1975, Resolution 380 (1975) on Western Sahara, in which it ‘deplore[d] the holding of the march’ announced and ‘call[ed] upon [the Kingdom of] Morocco immediately to withdraw from the territory of Western Sahara all the participants in [that] march’. The Kingdom of Morocco complied with that request a few days later.

156. During the crisis caused by the Green March, the Kingdom of Spain, the Kingdom of Morocco and the Islamic Republic of Mauritania took part in trilateral negotiations which led, on 14 November 1975, to the Declaration of Principles on Western Sahara by Spain, Morocco and Mauritania ( 117 ) (‘the Madrid Agreement’). In the words of that agreement, ‘Spain [would] proceed forthwith to institute a temporary administration in the Territory [of Western Sahara], in which Morocco and Mauritania [would] participate in collaboration with the Yema’a and to which would be transferred all the responsibilities and powers [which it possessed over that territory as administering Power]’, which was done.

157. The Madrid Agreement also provided that ‘the termination of the Spanish presence in the Territory [would] be completed by 28 February 1976 at the latest’ and that ‘the views of the Saharan population, expressed through the Yema’a, [would] be respected’.

158. It subsequently became apparent that that agreement was accompanied by a series of agreements between those three countries, formally called ‘acts of conversations’, designed to regulate certain economic aspects of the transfer of the administration of Western Sahara, including, in particular, fishing rights in the waters adjacent to that territory. ( 118 ) The existence of those agreements and the fact that they related to fishing were confirmed by the Minister for Foreign Affairs of the Kingdom of Spain, Mr Oreja Aguirre, during the parliamentary debate on the ratification of the 1977 Fisheries Agreement between the Kingdom of Spain and the Kingdom of Morocco. ( 119 ) According to that minister, those agreements amounted to ‘guidelines [or] directives’. ( 120 )

159. The existence of an agreement on fishing rights in the waters adjacent to Western Sahara, and the fact that its existence was not notified to the United Nations Secretary-General, are also confirmed by the diplomatic cables of the Secretary of State of the United States of America. ( 121 )

160. On 28 November 1975, 67 members of the Yema’a, including its Vice-President, meeting at El Guelta Zemmur (Western Sahara), unanimously declared that as the Yema’a was not democratically elected by the people of Western Sahara it could not decide on its self-determination. They unanimously decided that the Yema’a should be definitively dissolved. ( 122 )

161. On 10 December 1975, the United Nations General Assembly passed two resolutions on the Question of Western Sahara, the content of which is not identical, ( 123 ) because there was no consensus on how the Madrid Agreement was to be understood. Thus, Resolution 3458 A (XXX) makes no reference to that agreement and refers to the Kingdom of Spain ‘as the administering Power’ of Western Sahara, ( 124 ) whereas Resolution 3458 B (XXX) ‘takes note’ ( 125 ) of that agreement and does not refer to an administering Power but to the ‘parties to the Madrid Agreement of 14 November 1975’ ( 126 ) and to ‘the interim administration’. ( 127 )

162. It should be noted, however, that among the 144 State participants in the 2435th plenary session of the General Assembly, 88 voted for Resolution 3458 A (XXX), none against, 41 abstained and 15 did not vote. The present Member States of the European Union voted for that resolution, with the exception of the Portuguese Republic and the Kingdom of Spain, which abstained, and the Republic of Malta, which did not vote. The Kingdom of Morocco also did not vote.

163. More heavily contested, Resolution 3458 B (XXX) was approved by only 56 States, whereas 42 States voted against, 34 abstained and 12 did not vote. Only 11 of the present Member States of the European Union voted for that resolution, ( 128 ) 10 voted against, ( 129 ) 6 abstained ( 130 ) and one did not vote. ( 131 ) The Kingdom of Morocco voted for.

164. In spite of their discrepancies, both resolutions ‘reaffirm the inalienable right of the people of [Western] Sahara to self-determination’, ( 132 ) in accordance with United Nations General Assembly Resolution 1514 (XV), and agree that that right must be exercised freely. ( 133 )

165. In addition, Resolution 3458 A (XXX) provides that the right to self-determination must be exercised ‘under United Nations supervision’ and ‘requests the Secretary-General, in consultation with the Government of Spain, as the administering Power, … to make the necessary arrangements for the supervision of the act of self-determination’. ( 134 )

166. Likewise, Resolution 3458 B (XXX) provides for the exercise by the people of Western Sahara of its right to self-determination ‘through free consultations organised with the assistance of a representative of the [United Nations] appointed by the Secretary-General’. ( 135 )

167. At the end of 1975, the Kingdom of Spain began to withdraw its administration from Western Sahara. While the Spanish troops were withdrawing, the Moroccan and Mauritanian forces were entering the territory of Western Sahara. In some places there was armed confrontation between their forces and the forces of the Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario). ( 136 )

168. At a press conference in February 1976, Mr Olof Rydbeck, Swedish Ambassador to the United Nations and Special Envoy of the United Nations Secretary-General for Western Sahara, stated that ‘the military situation [in Western Sahara] as it [stood] [made] a meaningful consultation of the Saharans very difficult if not impossible’. ( 137 )

169. By its memorandum of 25 February 1976 to the United Nations Secretary-General, the Kingdom of Spain informed the Secretary-General that it had decided to put an end to its presence in Western Sahara on the following day (26 February 1976) and that a meeting of the Yema’a had been convoked for that day during which the Spanish Governor, acting in his capacity as a member of the interim administration, would inform the Yema’a of that decision. ( 138 )

170. On 26 February 1976, the Kingdom of Spain definitively terminated its presence on the territory of Western Sahara and by its letter of the same date to the United Nations Secretary-General declared that it was ‘absolved of all international responsibility for the administration [of Western Sahara] by ceasing to participate in the interim administration put in place there’ ( 139 ) and asserted that ‘the decolonisation of Western Sahara will be achieved when the Saharawi population will have been able to make its views known in a proper manner’. ( 140 )

171. On the same day, in spite of the dissolution decided on by 67 of its members, the Yema’a approved ‘the reintegration [of Western Sahara] in Morocco and Mauritania’ and ‘thus expressed the unanimous opinion of the Saharawi populations and all the tribes of which it is the emanation and the authentic and legitimate representative’. ( 141 ) From the Kingdom of Morocco’s viewpoint, that decision gives concrete form to the provision of the Madrid Agreement that ‘the opinion of the Saharawi population, expressed through the Yema’a, will be respected’.

172. As regards that meeting of the Yema’a, neither the Kingdom of Spain nor the United Nations recognised it as the exercise of the right of the people of Western Sahara to self-determination, in accordance with United Nations General Assembly Resolutions 3458 A and B (XXX). ( 142 )

173. According to the memorandum dated 25 February 1975 which the Kingdom of Spain sent to the United Nations Secretary-General, ‘that sitting [will] not take the place of the consultation with the population as provided for in the Madrid Agreements of 14 November 1975 and in General Assembly Resolution 3458 B (XXX), unless the necessary conditions are fulfilled, including, in particular, the presence of a representative of [the United Nations] appointed by [the Secretary-General] in accordance with paragraph 4 of the abovementioned resolution’. ( 143 )

174. In his reply to the Kingdom of Spain’s memorandum of 25 February 1975, the United Nations Secretary-General referred to paragraphs 7 and 8 of Resolution 3458 A (XXX) and to paragraph 4 of Resolution 3458 B (XXX) and concluded as follows: ‘It is evident from the paragraphs cited above that neither the Government of Spain, as the administering Power, nor the interim administration, of which Spain is a member, has taken the necessary steps to ensure the exercise of the right to self-determination by the populations of Western Sahara. Accordingly, even if time had permitted and the necessary clarifications had been furnished regarding the meeting of the Yema’a of which you informed me yesterday your Government was not aware, the presence at that meeting of a representative of the United Nations appointed by me would not, by itself, constitute fulfilment of the General Assembly resolutions referred to above’. ( 144 )

175. On 14 April 1976, the Kingdom of Morocco concluded with the Islamic Republic of Mauritania a treaty on the partition of the territory of Western Sahara ( 145 ) and formally annexed the provinces attributed to it by that treaty. ( 146 )

176. In the meantime, an armed conflict had broken out in that region between the Kingdom of Morocco, the Islamic Republic of Mauritania and the Front Polisario.

177. In May 1979, the Islamic Republic of Mauritania informed the United Nations Secretary-General that it was prepared to apply the provisions of United Nations General Assembly Resolutions 3458 A (XXX) and 3458 B (XXX) and to study the ways and means of arriving at the exercise of the right to self-determination in Western Sahara. ( 147 ) However, ‘since July 1978, the Moroccan Government [had] repeatedly stated that it would not give up any of “its recovered Saharan provinces”, nor would it agree to a mini-State under the Front [Polisario] in Mauritania’s sector of Western Sahara’. ( 148 )

178. On 10 August 1979, the Islamic Republic of Mauritania concluded a peace agreement with the Front Polisario, under which it renounced all territorial claims to Western Sahara. ( 149 ) The Kingdom of Morocco immediately took control of the territory evacuated by the Mauritanian forces ( 150 ) and proceeded to annex it. ( 151 )

179. On 21 November 1979, the United Nations General Assembly adopted Resolution 34/37 on the question of Western Sahara, in which it ‘reaffirm[ed] the inalienable right of the people of Western Sahara to self-determination and independence, in accordance with the Charter of the United Nations ... and the objectives of [its] Resolution 1514 (XV)’, ‘deeply deplore[d] the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco’, ‘urge[d] Morocco to join in the peace process and to terminate the occupation of the Territory of Western Sahara’ and ‘recommend[ed] to that end that the [Front Polisario], the representative of the people of Western Sahara, should participate fully in any search for a just, lasting and definitive political solution of the question of Western Sahara, in accordance with the resolutions and declarations of the United Nations’. ( 152 )

180. The armed conflict between the Kingdom of Morocco and the Front Polisario continued until, on 30 August 1988, the parties accepted in principle proposals for settlement put forward, in particular, by the United Nations Secretary-General and providing, in particular, for the proclamation of a ceasefire and the organisation of a referendum on self-determination under United Nations supervision. ( 153 )

181. Since that period no progress towards allowing the people of Western Sahara to exercise its right to self-determination has been recorded. As the United Nations Secretary-General observed in his last report on Western Sahara, ‘the fundamental difficulty [in seeking a solution] is that each party has a different vision and reading of the history and documents relating to the conflict. Morocco insists that Western Sahara is already part of Morocco, that the sole basis for negotiations is its initiative for autonomy under Moroccan sovereignty and that Algeria must be a party to those negotiations. [The Front] Polisario insists that, since the General Assembly identifies Western Sahara