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THE ROLE OF STATE IMMUNITY AND ACT OF STATE IN THE NM CHERRY BLOSSOM CASE AND THE WESTERN SAHARA DISPUTE

Published online by Cambridge University Press:  21 December 2018

Tom Ruys
Affiliation:
Professor of Public International Law, University of Ghent, Tom.Ruys@UGent.be.
Corresponding
E-mail address:

Abstract

In early 2018, the Polisario Front and the Saharawi Arab Democratic Republic (SADR) obtained a favourable ruling from the South African Courts, granting the SADR ownership over a cargo of phosphate aboard the NM Cherry Blossom originating from a mine in the Moroccan-controlled part of the Western Sahara. Although hitherto largely unnoticed in legal circles, the Cherry Blossom case raises important questions concerning the outer bounds of State immunity and the scope of the act of State doctrine. In addition, the case holds potentially far-reaching ramifications for the international legal order if other domestic courts were to follow suit.

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Articles
Copyright
Copyright © British Institute of International and Comparative Law 2018 

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References

1 For a useful overview of the legal background, see General Court of the EU, Front Polisario v Council of the EU, Judgment of 10 December 2015 in Case T-512/12, ECLI:EU:T:2015:953 [1]–[16].

2 The Polisario Front defines itself as a national liberation movement. It has previously been recognized by the UN General Assembly as ‘the representative of the people of the Western Sahara’. UNGA Res 34/37, ‘The Question of Western Sahara (21 November 1979) [7].

3 Negotiations on the region's final status indeed continue under UN auspices (coordinated in particular by the UN Secretary-General's Personal Envoy for Western Sahara). For the most recent UN resolutions, see (nn 104 and 105).

4 The SADR was proclaimed by the Polisario Front in 1976. It exercises control over some 20–25 per cent of the territory it claims. It is currently recognized as a State by some 45 UN Members and is a formal member of the African Union.

5 On this concept, see eg Kittrie, OF, Law as a Weapon of War: Lawfare (Oxford University Press 2016)CrossRefGoogle Scholar.

6 Front Polisario v Council (n 1) [114].

7 ibid [223].

ibid

8 Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council, UN Doc S/2002/161 (hereafter the ‘2002 UN Legal Opinion’).

9 Front Polisario v Council (n 1) [241].

10 Court of Justice of the EU (Grand Chamber), Council of the EU v Front Polisario, Judgment of 21 December 2016 in Case C-104/16P, ECLI:EU:C:2016:973 [88]-[93] (finding that ‘[i]n view of the separate and distinct status accorded to the territory of Western Sahara by virtue of the principle of self-determination, in relation to that of any State’, the words ‘territory of the Kingdom of Morocco’ in the Association Agreement could not be interpreted in such a way that the Western Sahara was included within the territorial scope of that agreement.

11 ibid [94]–[99].

ibid

12 ibid [100]–[108] (holding that ‘the people of Western Sahara must be regarded as a “third party”’ within the meaning of art 34 VCLT, implying that the implementation of the Association Agreement required their consent.

ibid

13 ibid [133].

ibid

14 Court of Justice of the EU (Grand Chamber), Western Sahara Campaign UK, Judgment of 27 February 2018 in Case C-266/16, ECLI:EU:2018:118 [63].

15 General Court, Front Polisario v Council, Order of 19 July 2018 in Case T-180/14, ECLI:EU:T:2018:496.

16 See Cases T-376/18 (Front Polisario v Council) and T-275/18 (Front Polisario v Council). These applications reportedly target a Council Decision authorizing the Commission to reopen negotiations with a view to modifying the Fisheries Partnership Agreement with Morocco, on the one hand, and a civil aviation agreement with Morocco, on the other hand.

17 For particularly insightful critique, see Odermatt, J, ‘Council of the European Union v Front Populaire pour la Libération de la Saguia-El-Hamra et Du Rio de Oro (Front Polisario)’ (2017) 111 AJIL 731CrossRefGoogle Scholar.

18 Court of Justice of the EU, Brita, Judgment of 25 February 2010 in Case C-386/08, ECLI:EU:C:2010:91; Court of Justice of the EU, Anastasiou (1), Judgment of 5 July 1994 in Case C-432/92 ECLI:EU:C:1994:277; Court of Justice of the EU, Anastasioiu (2), Judgment of 4 July 2000 in Case C-219/98, ECLI:EU:C:2000:360. Further: S Talmon, ‘The Cyprus Question before the European Court of Justice’ (2001) 12 EJIL.

19 See also on the region's phosphate reserves, and, more generally, on the vast phosphate reserves within the Kingdom of Morocco itself: IFDC (International Fertilize Development Center), ‘World Phosphate Rock Reserves and Resources’ (September 2010) available at <https://pdf.usaid.gov/pdf_docs/Pnadw835.PDF>.

20 Primer Tribunal Marítimo de Panamá, Sahrawi Arab Democratic Republic v La Darién Navegación & Ors (5 June 2017) on file with the author. Note: the temporary arrest of the vessel following a Court Order in May (and until the posting of a bond) did negatively affect the share price of Agrium, the Canadian-based purchaser of the phosphate and the main importer of phosphate mined in the Western Sahara (M Shaw, ‘Territorial Dispute Halts Phosphate Rock Shipment from Morocco’ Investing News (18 May 2017)). Already in 2016, Agrium—now Nutrien Ltd.—commissioned an audit which ultimately concluded that the company was ‘not causing or contributing to potential or actual negative human rights impacts in the Western Sahara’ through its supplier relationship with OCP/Phosboucraa. Norton Rose Fulbright, ‘Human Rights Assessment Report: Agrium Phosphate Rock Supply from Western Sahara’ (2016) available at <https://www.nutrien.com/sites/default/files/uploads/2018-01/NRF_Human%20Rights%20Assessment%20Report%202016.pdf> 12. Early 2018, however, Nutrien announced its intention to halt imports from the Western Sahara. Western Sahara Resource Watch, ‘“Biggest Importer” of Phosphate Rock Is Pulling out’ (29 January 2018) available at <http://wsrw.org/a105x4051>.

21 Original text: ‘que el tribunal se pronuncie sobre una pugna político/diplomática por la extracción de un material de un territoria que dos naciones dicen le pertenece y en el cual las demandadas son personas ajenas.’

22 High Court of South Africa, Eastern Cape Local Division, Port Elizabeth, The Saharawi Arab Democratic Republic and The Polisario Front v owner and charterers of the MV ‘NM Cherry Blossom’ & Ors [2017] ZAECPEHC 31; 2017 (5) SA 105 (ECP), Order of 15 June 2017 (hereafter the ‘Cherry Blossom Order’).

23 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12.

24 NM Cherry Blossom (n 22) [54].

25 High Court of South Africa, Eastern Cape Local Division, Port Elizabeth, The Saharawi Arab Democratic Republic and The Polisario Front v owner and charterers of the MV ‘NM Cherry Blossom’ & Ors, Order of 23 February 2018, available at <http://wsrw.org/files/dated/2018-02-23/20180223_south_africa_ruling.pdf>.

26 See ‘UPDATE 1 - Seized Western Sahara cargo released from South Africa after auction - OCP’ (9 May 2018) available at <https://af.reuters.com/article/westernSaharaNews/idAFL8N1SF7CE> (the release suggests that other potential buyers were reluctant to participate in the auction).

27 Note: some companies have expressed their conviction that phosphate mining in the Western Sahara complies with the UN Framework as spelled out in the 2002 UN Legal Opinion. See eg, Ravensdown, ‘Ravensdown's Position on Western Sahara’ available at <https://www.ravensdown.co.nz/services/product-availability/phosphate-rock-supply> (referring inter alia to the employment and investment resulting from the mining activities). See also above (n 20), for the report commissioned by Agrium, now Nutrien. See, however, for a more critical account the contributions by Smith, Zunes and Saul in the special edition of 27(3) Global Change, Peace & Security (2015) on ‘Western Sahara: The Role of Resources in Its Continuing Occupation’.

28 While Morocco is rarely described as an occupying power (see also below n 90), some have argued that the law of belligerent occupation (including the principle of usufruct) is applicable to Morocco's control over the Western Sahara. Further: Saul, B, ‘The Status of Western Sahara as Occupied Territory under International Humanitarian Law and the Exploitation of Natural Resources’ (2015) 27(3) Global Change, Peace & Security 301CrossRefGoogle Scholar.

29 South Africa, Supreme Court of Appeal, Minister of Justice and Constitutional Development & others v Southern African Litigation Centre & others (2016) (3) SA 317 (SCA) [66].

30 UK Supreme Court, Belhaj and Rahmatullah (No 1) v Straw & Ors [2017] UKSC 3.

31 NM Cherry Blossom (n 22) [68].

32 ibid [75], [83]–[84].

ibid

33 ‘A proceeding before a court of a State shall be considered to have been instituted against another State if that other State: … (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.’ Note: the High Court did not take a position as to whether art 6(2)(b) UNCSI was reflective of customary international law, although it did cite Lord Sumption's position that the UNCSI represents ‘an authoritative statement … on the current understanding of the limits of state immunity in civil cases’ [77]. It may be noted that the UK Court of Appeal in Belhaj previously held that art 6(2)(b) UNCSI could not be considered reflective of a rule of customary international law (UK Court of Appeal (civil division), Belhaj, 30 October 2014, [2014] EWCA Civ 1394, [47]). The customary status of the provision (or lack thereof) was not, however, addressed explicitly in the subsequent judgment of the UK Supreme Court, albeit that Lord Mance did appear to raise doubts in this respect. Belhaj (n 30) [25] (Lord Mance).

34 NM Cherry Blossom (n 22) [85].

35 ibid [83]–[84].

ibid

36 It has been suggested that the High Court's approach may have been driven by ulterior motives. In particular, Angelet emphasizes the fact that South Africa had recognized the SADR as a sovereign State and suggests that the Court may have been reluctant to apply the rules of State immunity (or, possibly, the act of State doctrine (on which, see further below)) to the detriment of another sovereign State. N Angelet, ‘Immunity and the Exercise of Jurisdiction: Indirect Impleading and Exequatur’ in T Ruys and N Angelet (eds), The Cambridge Handbook on Immunities and International Law (Cambridge University Press) (forthcoming – on file with the author). Be that as it may, the recognition of the SADR by South Africa is not mentioned as a relevant factor in the Court's treatment of the State immunity defence (or the act of State defence). On a different note, it is observed that the recognition of the SADR by Panama did not prevent the Panamanian Court from concluding it had no jurisdiction in the case concerning the M/N Ultra Innovation (n 20).

37 ILC, Draft articles on Jurisdictional immunities of States and their property, with commentaries, UN Doc A/46/10, reproduced in (1991) YbILC Vol. II, Pt Two, 13, 25.

38 Famous cases include the seminal Schooner Exchange case before the US Supreme Court (1812) or the Parlement Belge in the UK (1879). A remnant of this case law can be found in section 11 of the South African Immunities Act (Act No 87, 1981) pertaining to Admiralty proceedings. At the same-time, relevant case-law pertaining to indirect impleading is not limited to actions involving ships and their cargo. The ILC Commentary also identifies several examples pertaining, for instance, to visiting forces, ammunitions and weapons and aircraft. Other cases concern proprietary or possessory rights over gold bars or monies (ibid 25).

39 According to Angelet, for instance, ‘Article 6.2 is capable of encompassing a wide range of situations where the third State is not a party to the proceedings, beyond the hypothesis of ex parte proceedings regarding its rights or legal interests in the domestic legal order of the forum State’. Angelet (n 36).

40 ibid 25 [13].

ibid

41 TD Grant, ‘Article 6’ in O'Keefe, R, Tams, CJ and Tzanakopoulos, A (eds), The United Nations Convention on Jurisdictional Immunities of States and their Property: A Commentary (Oxford University Press 2013) 110Google Scholar. Note: while Lord Sumption ‘would not altogether rule out the possibility that litigation between other parties might directly affect interests of a foreign state other than interests in property’, he stressed that ‘it is not easy to imagine such a case’. Belhaj (n 30) [196] (Lord Sumption).

42 Grant (n 41) 111.

43 Fox, H and Webb, P, The Law of State Immunity (3rd edn, Oxford University Press 2013) 310Google Scholar.

44 Belhaj (n 30) [197] (Lord Sumption).

45 NM Cherry Blossom (n 22) [13].

46 ibid [190] (Lord Sumption).

ibid

47 UK House of Lords, Buttes Gas and Oil Co v Hammer [1982] AC 888.

48 Note, however, that the case was deemed non-justiciable on other grounds. ibid 938 (and see further below on the act of State doctrine).

49 ibid 926.

ibid

50 Case of the Monetary Gold Removed from Rome in 1943 (Italy v France, UK and USA) [1954] ICJ Rep 19, 32. Note also the contrast with the ICJ's Western Sahara Opinion, where the Court dismissed Spain's objection that it could not deliver the requested opinion absent Spain's consent, on the basis of the following reasoning: ‘[t]he issue between Morocco and Spain regarding Western Sahara is not one as to the legal status of the territory today, but one as to the rights of Morocco over it at the time of colonization. The settlement of this issue will not affect the rights of Spain today as the administering Power … ‘[T]he questions … do not … relate to a territorial dispute … between the interested parties … . The Court finds that the request for an opinion does not call for adjudication upon existing territorial rights or sovereignty over territory.’ Western Sahara (n 23) [42]–[43].

51 Case concerning East Timor (Portugal v Australia) [1995] ICJ Rep 90 [19]. Note, however, the Dissenting Opinion of Judge Skubiszewski ([1995] ICJ Rep [224]), who thought that the Court overextended the principle established in the Monetary Gold case. In essence, Judge Skubiszewski believed that the Court was not required to determine the rights and obligations of an absent third party (Indonesia), since those rights and obligations had been previously established by relevant UN resolutions. See eg at [85]: ‘By now taking judicial notice of the relevant United Nations decisions the Court does not adjudicate on any claims of Indonesia nor does it turn the interests of that country into the “very subject-matter of the dispute”.’

52 NM Cherry Blossom (n 22) [71].

53 Interestingly, Angelet construes art 6(2)(b) UNSCI along the lines of the Monetary Gold principle. Angelet suggests that the crucial question is whether « l'appréciation de la légalité de l'acte de l'Etat tiers (ou de l'organisation internationale) constitue une simple préalable à sa décision sur une affaire qui relève par ailleurs de sa compétence naturelle, ou s'il s'agit au contraire de l'objet véritable du litige. » N Angelet, ‘Les juges belges face aux actes des organisations internationales’ in A Lagerwall (ed), Les juges belges face aux actes adoptés par les Etats étrangers et les organisations internationales – quel contrôle au regard du droit international ? (Larcier 2017) 27, [31]. See also Angelet (n 36) (‘Monetary Gold and the Ensuing Jurisprudence of the World Court May Also Assist in Delimitating the Immunity of the Absent State.’).

54 R Jennings, The Place of the Jurisdictional Immunity of States in International and Municipal Law (Europa-Institüt 1988) 3–4.

55 Crawford, J, ‘International Law and Foreign Sovereigns: Distinguishing Immune Transactions’ (1983) 54 BYBIL 80Google Scholar. See also Crawford, J, ‘Execution of Judgments and Foreign Sovereign Immunity’ (1981) 75 AJIL 856CrossRefGoogle Scholar.

56 Belhaj (n 30), [27] (Lord Mance): ‘In the courts below, Leggatt J … distinguished [East Timor and Monetary Gold] as cases about international jurisdiction, required in the case of the International Court to be based on consent, in contrast with which domestic courts exercise compulsory jurisdiction over those within their reach. That is correct as far as it goes, but states’ domestic jurisdiction also depends on consent in contexts where state immunity otherwise exists. The situation is therefore nuanced.’

57 Ibid. [28].

Ibid.

58 Confirming that such conduct is of a jure imperii character, see eg Fox and Webb (n 43) 404 (referring to ‘the exercise of regulatory control by the State as in … expropriation, nationalization, … regulation by the State of the exploitation of natural resources’); US District Court for the Central District of California, International Association of Machinists and Aerospace Workers v OPEC I 477 F.Supp.553 (C.D. CAL 1979), 18 September 1979 (regarding the control over oil resources as a sovereign function, and funding support for this position in UNGA Res 1803(XVII) according to which ‘a sovereign state has the sole power to control its natural resources’).

59 In this sense: Fox and Webb (n 43) 404, 430–1; Yang, X, State Immunity in International Law (Cambridge University Press 2012) 298ffCrossRefGoogle Scholar. As both works observe, acts of expropriation or nationalization constitute an exercise of sovereign authority. The only country applying an exception denying immunity in respect of claims relating to expropriation of property contrary to international law is the United States (no such exception exists, for instance, in the South African Immunities Act). The scope of the US exception is moreover limited to the nationalization or expropriation of property without payment of the prompt, adequate and effective compensation required by international law, as well as takings which are arbitrary or discriminatory in nature. It also requires a territorial nexus with the US, in particular in the form of commercial activity in the US.

60 UK House of Lords, Kuwait Airways Corp v Iraqi Airways Co and others (Kuwait Airways (No. 1) [1995] 3 Amm ER 694.

61 For an insightful discussion of the case, see eg Evans, MD, ‘When the State Taketh and the State Giveth’ (1996) 45(2) International and Comparative Law Quarterly 401CrossRefGoogle Scholar.

62 Kuwait Airways (n 60) 718 (Lord Mustill), 721 (Lord Slynn of Hadley). Further: Evans (n 61) 405–6.

63 UK Court of Appeal (Civil Division), Kuwait Airways Corp v Iraqi Airways Co and others [1995] 1 Lloyd's Rep 25 (see in particular at 37 (Simon Brown LJ)). Consider also H Fox, ‘A “Commercial Transaction” under the State Immunity Act 1978’ (1994) 43 ICLQ 199.

64 France, Court of Cassation (First Civil Chamber), Société algérienne de Commerce Alco & Ors v Sempac and Ors (2 May 1978) (1978) 65 ILR 73–5. But see France, Court of Cassation (First Civil Chamber), Société internationale de plantations d'Hévéas v Lao Import Export Company & Ors (20 October 1987) (1983) 80 ILC 430–2.

65 Grant (n 41) 107.

66 Cherry Blossom (n 22) [95]. In a similar vein: UK Belhaj (n 30) [200] (Lord Sumption) (international law ‘does not require [States] to apply any particular limitation on their subject matter jurisdiction in litigation to which foreign states are not parties and in which they are not indirectly impleaded. The foreign act of state doctrine is at best permitted by international law.’).

67 Paraphrasing I Brownlie, (1989) 63-I Annuaire I.D.I. 17.

68 See eg, Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), [1970] ICJ Rep 3 [93], and see the Separate Opinion of Judge Fitzmaurice ([1970] ICJ Rep. 64) [70] (referring to ‘an obligation to exercise moderation and restraint as to the extent of the jurisdiction assumed by its courts in cases having a foreign element’). See also Angelet (n 36), who suggests that the divergence between the common law and the civil law approach is perhaps overstated: ‘That the act of State doctrine originated in domestic law does not at all mean that common law courts could adjudicate cases typically falling within the realm of the doctrine, without violating international law. Rather, the application of the act of State doctrine pursuant to domestic law dispenses the courts from considering the international law limits to their powers.’

69 This position is affirmed in particular in Jurisdictional Immunities of the State (Germany v Italy; Greece intervening) [2012] ICJ Rep 99 [94] (‘The Court concludes that, under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict.’), [97] (‘[t]he Court concludes that even on the assumption that the proceedings … involved violations of jus cogens rules, the applicability of the customary international law on State immunity was not affected.’); ECtHR, Case of Jones and Others v The United Kingdom App Nos 34356/06 and 40528/06 (14 January 2014) [198].

70 NM Cherry Blossom (n 22) [86].

71 Swissborough Diamond Mines (PTY) LTd and others v Government of the Republic of South Africa and others (12 December 1997) 1999 (2) SA 279 (T), 334D-F.

72 Van Zyl v Government of the Republic of South Africa [2008] (3) SA 294 (SCA) [5].

73 NM Cherry Blossom (n 22) [97].

74 ibid [100].

ibid

75 This is so because the scope of the ‘municipal act of State’ is often limited to acts of a State which take place or take effect within the territory of that State (eg Belhaj (n 30), [121]–[122](Lord Neuberger), [228] –[229] (Lord Sumption), and because of the unsettled status of the Western Sahara.

76 For a detailed discussion of the various strands of the ‘act of State’ doctrine, compare the (slightly divergent) approaches of Lord Mance and Lord Neuberger, on the one hand, and Lord Sumption, on the other hand, in Belhaj. The ‘municipal act of state’ essentially entails that domestic courts will not adjudicate upon the lawfulness or validity of a State's sovereign acts (as opposed to acts of a private law character) within its own territory, irrespective of whether they constitute legislative or executive acts of the latter State. Belhaj (n 30) [7], [11], [34–38] (Lord Mance), [120]ff (Lord Neuberger), [228]ff (Lord Sumption).

77 See (n 58).

78 Asserting that the act of State doctrine is limited to acts jure imperii, see eg Belhaj (n 30) [199] (Lord Sumption).

79 Buttes Gas (n 47).

80 Belhaj (n 30) [242] (Lord Sumption).

81 The act of State doctrine normally does not apply where a dispute might merely ‘incidentally’ disclose that a State has acted unlawfully. See eg US Supreme Court, W.S. Kirkpatrick & Co., Inc., et al., Petitioners v Environmental Tectonics Corporation, International (17 January 1990) 493 U.S. 400 (110 S.CT. 701), 406 (Justice Scalia).

82 Cherry Blossom (n 22) [58]. Consider also ibid [13].

83 See in particular the reasoning of Lord Wilberforce in Buttes Gas (n 47) 931–2, 935–6. In a similar vein: Belhaj (n 30) [90] (Lord Mance), [123], [147], [165] (Lord Neuberger), [227], [234] (Lord Sumption).

84 2002 UN Legal Opinion (n 8).

85 ibid [24]

ibid

86 NM Cherry Blossom (n 22) [48].

87 Front Polisario v Council (n 1) [110].

88 Sahrawi Arab Democratic Republic v La Darién Navegación (n 20).

89 NM Cherry Blossom (n 22) [100].

90 Belhaj (n 30) [123] (Lord Neuberger).

91 UK House of Lords, Kuwait Airways Corporation v Iraqi Airways Company & Ors (No. 5) [2002] UKHL 19 [26].

92 Belhaj (n 30).

93 Federal Court of Australia, Habib v Commonwealth of Australia (25 February 2010) [2010] FCAFC 12. See esp [119] (Jagot JJ).

94 UK House of Lords, Oppenheimer and Cattermole [1976] AC 249, 277 (Lord Cross of Chelsea).

95 Kuwait Airways (n 91).

96 East Timor (n 51) [29] and case law cited; Council v Front Polisario (n 10) [88].

97 ILC, ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’, 18 July 2006, UN Doc. A/CN.4/L.702, [33].

98 Eg, Belhaj (n 30), [107] (Lord Mance), [257] (Lord Sumption).

99 Belhaj (n 30), [107] (Lord Mance).

100 Kuwait Airways No. 5 (n 91) [26] (Lord Nicholls of Birkenhead).

101 ibid [140] (Lord Hope of Craighead). See also Canadian Supreme Court, Kazemi Estate v Islamic Republic of Iran (10 October 2014) 2014 SCC 62, [150] (Le Bell J).

ibid

102 Eg Belhaj (n 30), [80], [86] (Lord Mance); Belhaj (n 30) [88]–[89].

103 See eg Kuwait Airways No. 5 (n 91) [20] (Lord Nicholls of Birkenhead). See in particular UNSC Res 662 (9 August 1990) UN Doc S/RES/662; UNSC Res 664 (18 August 1990) UN Doc S/RES/664; UNSC Res 670 (25 September 1990) UN Doc S/RES/670.

104 This also distinguishes the Western Sahara dispute from the dispute over South Africa's presence in Namibia, which was expressly condemned by the Security Council (UNSC Res 276 (30 January 1970) UN Doc S/RES/678), a distinction expressly referred to in the 2002 UN Legal Opinion ((n 8) [19]). It is noted, however, that the General Assembly has in two resolutions deplored Morocco's ‘occupation’ of Western Sahara, in resolutions in 1979 and 1980 (‘The Question of Western Sahara, UNGA Res 34/37 (21 November 1979) and UNGA Res 35/19 (11 November 1980)), albeit that it has not repeated such characterization in the 38 years since previous resolutions referred to the ‘continued occupation of Western Sahara by Morocco’.

105 eg, UNSC Res 2351 (28 April 2017) UN Doc S/RES/2351, [8]; UNSC Res 2414 (27 April 2018) UN Doc S/RES/2414, [3].

106 eg, The Question of Western Sahara, UNGA Res 72/95 (7 December 2017) [2]–[3].

107 Kuwait Airways No. 5 (n 91) [29] (Lord Nicholls of Birkenhead).

108 See eg ‘U.S. Supports Moroccan Autonomy Plan for Western Sahara’ Reuters (19 March 2016).

109 eg African Union, Office of the Legal Counsel and Directorate for Legal Affairs of the African Union Commission, ‘Legal Opinion on the Legality in the Context of International Law, Including the Relevant United Nations Resolutions and the OAU/AU Decisions, of Actions Allegedly Taken by the Moroccan Authorities or Any Other State, Group of States, Foreign Companies or Any Other Entity in the Exploration and/or Exploitation of Renewable and Non-Renewable Natural Resources or Any Other Economic Activity in Western Sahara’ (2015) available at <https://au.int/sites/default/files/newsevents/workingdocuments/13174-wd-legal_opinionof-the-auc-legal-counsel-on-the-legality-of-the-exploitation-and-exploration-by-foreign-entities-of-the-natural-resources-of-western-sahara.pdf>. Note: the Opinion appears to simultaneously take the view (1) that any exploitation of natural resources by Morocco in the Western Sahara is by definition contrary to international law and (2) that exploitation of natural resources in the Western Sahara must be for the benefit of the people of the Western Sahara and in accordance with their wishes—without, however, examining whether Morocco's activities in the Western Sahara meet the framework spelled out in the 2002 UN Legal Opinion. Apart from the internal inconsistency of the Legal Opinion, it may, however, be observed that, even if the situation in the Western Sahara is regarded as one of belligerent occupation, this does not make resource exploitation absolutely prohibited. Further: Saul (n 28).

110 2002 UN Legal Opinion (n 8) [24].

111 See eg European Parliament, Legal Service, ‘Legal Opinion – Re: Protocol between the European Union and the Kingdom of Morocco Setting out the Fishing Opportunities and Financial Contribution Provided for in the Fisheries Partnership Agreement in Force between the Two Parties – 2013/0315(NLE)’ (4 November 2013) SG-0665/13 [18]. See also the answer by Vice-President Mogherini on behalf of the European Commission to a parliamentary question, dated 8 July 2015. Doc E-004499/2015 (citing the conclusion of the 2002 UN Legal Opinion). See also New York City Bar (Committee on United Nations), ‘Report on Legal Issues Involved in the Western Sahara Dispute: Use of Natural Resources’ (April 2011), available at <http://www.nycbar.org/pdf/report/uploads/20072089ReportonLegalIssuesInvolvedintheWesternSaharaDispute.pdf>.

112 2002 UN Legal Opinion (n 8) [14].

113 Consider eg the position of Jagot JJ in Habib (n 93) [119], stressing that there are ‘clear and identifiable standards’ with regard to the prohibition of torture.

114 H Corell, ‘The Legality of Exploring and Exploiting Natural Resources in Western Sahara’ in N Botha, ME Olivier and D Van Tonder (eds), Multilateralism and International Law with Western Sahara as a Case Study (Verloren Van Themaat Centre 2010) 239.

115 It is recalled that Argentina previously initiated criminal proceedings against the executives of several UK oil companies in respect of allegedly unlawful exploratory drilling in the disputed waters around the Falklands Islands eg ‘Argentina Launches Legal Action against UK Oil Groups in the Falklands’ Financial Times (17 April 2015) available at <https://www.ft.com/content/7693840a-e505-11e4-8b61-00144feab7de>.

116 Consider eg J Crawford, ‘Opinion: Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories’ (24 January 2012) available at <https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf> eg at [91]. See in a similar vein the answer by Vice-President Mogherini on behalf of the European Commission in reaction to a parliamentary questions on the CJEU judgment in Case C-266/16, asserting that the ruling ‘did not impose any import ban on products originating in Western Sahara, but determined that at present the Association agreement contains no legal basis for granting tariff preferences to products coming from Western Sahara’. Doc E-000150/2018.

117 It is striking to note in this context that other potential buyers ostensibly refrained from participating in the auctioning of the Cherry Blossom cargo. See (n 25).

118 US Supreme Court, Banco Nacional de Cuba v Sabbatino (23 March 1964) 376 U.S. 398 (1964) 433. See also the Judgment of the Hanseatisches Oberlandesgericht Hamburg of January 2005 (1 W 78/04) cited in Belhaj (n 30) [69] (Lord Mance).

119 Further: Costelloe, D, Legal Consequences of Peremptory Norms in International Law (Cambridge University Press 2017)CrossRefGoogle Scholar.

120 The obligation not ‘recognize as lawful a situation created by a serious breach’ of jus cogens is enshrined in art 41(2) of the ILC's Articles on Responsibility of States for Internationally Wrongful Acts (for text and commentaries, see (2001) YbILC Vol. II, Pt Two, 114–16. Among other things, the obligation of non-recognition—which operates on the intergovernmental plane—prevents States from entering into treaty relations with other States in respect of unlawfully acquired territory, or from sending diplomatic missions to regimes that result from a breach of jus cogens. The non-recognition principle also restricts the extent to which States can enter into economic and other forms of relationship concerning unlawfully acquired territory, albeit that some flexibility is introduced by the so-called Namibia exception, where non-recognition of certain acts would ultimately be to the detriment of the inhabitants of the territory concerned. An in-depth analysis of the obligation of non-recognition is beyond the scope of our analysis (see: Costelloe ibid; Crawford (n 116) 18–22, 31 ff). Suffice it to note that it implicitly follows from the ICJ's Jurisdictional Immunities case (n 61) that the obligation of non-recognition cannot override the rules of State immunity. The obligation of non-recognition does not feature in the cited judgments of the EU Courts pertaining to the Western Sahara.

121 See eg Saul (n 28); Crawford (n 116) [99]ff.

122 Of course, this may raise questions as to the permissibility of such ban under WTO law, or as to the legality of third-party countermeasures—questions which are far beyond the remit of this short contribution. See eg Dawidowicz, M, Third-party Countermeasures in International Law (Cambridge University Press 2017)CrossRefGoogle Scholar.

123 As part of ‘the EU's non-recognition policy of the illegal annexation of Crimea and Sevastopol’, the EU has imposed ‘[a] ban on imports of goods originating in Crimea or Sevastopol unless they have Ukrainian certificates’. EEAS, ‘The EU Non-Recognition Policy for Crimea and Sevastopol: Fact Sheet’ (12 December 2017) available at <https://eeas.europa.eu/headquarters/headquarters-Homepage/37464/eu-non-recognition-policy-crimea-and-sevastopol-fact-sheet_en>.

124 This is so even if one embraces an expropriation exception to State immunity, which currently only the United States does in its FSIA.

125 Fox (n 63) 202.

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