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Forbes | 29 June 2021
UK to face judical review of Morocco trade deal, after high court allows challenge over Western Sahara
by Dominic Dudley
A group campaigning for the rights of Western Sahara’s Saharawi people has been granted permission by the High Court in London to bring a judicial review against the UK government’s trade deal with Morocco.
It is thought to be the first such legal challenge to a trade agreement signed by the UK since it left the European Union (EU).
The Western Sahara Campaign UK (WSCUK) had issued judicial review proceedings against the Department for International Trade and the Treasury in March over the UK-Morocco Association Agreement, claiming it breached the UK’s obligations under international law. In a ruling by the High Court in London issued on June 28, Mr Justice Chamberlain gave permission for that to go ahead.
“If the claimant is correct, the defendants are acting unlawfully by according preferential tariff treatment to goods originating in Western Sahara and in doing so are facilitating the exploitation of the resources that territory contrary to international law,” he wrote in his judgement.
The association agreement was signed in October 2019 and designed to replicate the EU’s trading arrangements with Morocco, which the UK would no longer be party to once it left the EU.
Both the EU and UK association agreements give preferential tariffs for certain products from Morocco and these also apply to products from Western Sahara. In Annex E of the UK’s agreement, for example, it says “Products originating in Western Sahara subject to controls by customs authorities of Morocco shall benefit from the same trade preferences.”
Morocco has claimed Western Sahara as part of its territory since it invaded in 1975. That claim is not widely recognized and the UN has included Western Sahara on a list of non-self-governing territories since 1963. Officially, the UK regards the status of Western Sahara as "undetermined".
WSCUK argues the UK deal should not apply to Western Sahara products as, under international law, Morocco should not be allowed to exploit the resources of Western Sahara without the consent of its people and unless for their exclusive benefit.
WSCUK welcomed yesterday’s High Court ruling as “excellent news in our quest for justice for the Saharawi people.” In a statement, WSCUK coordinator John Gurr said “This is an important step for the Saharawi people. The challenge to an agreement that allows the theft of the natural resources of Western Sahara and further entrenches the Moroccan occupation can now proceed.”
Erin Alcock of law firm Leigh Day, which is representing WSCUK, said “This case will present the court with an important opportunity to consider the legality of a post-Brexit trade deal implemented in the UK in the context of international legal obligations.”
The Department for International Trade declined to comment, with a spokesperson saying “We do not comment on ongoing legal proceedings”.
In 2015, WSCUK brought successful judicial review proceedings against the UK government over its implementation of a previous version of the EU-Morocco Association Agreement and the EU-Morocco Fisheries Partnership Agreement.
Morocco has suffered numerous other legal setbacks over its claims to Western Sahara in European courts since then. It has also seen the number of international buyers for the territory’s phosphate exports dwindle in recent years.