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Hebrew University of Jerusalem European Forum

More than Kin and Less than Kind: The Status of Occupied Territories under the European Union’s Bilateral Trade Agreements

By: Eyal Rubinson, MA Candidate* Supervisor: Dr. Guy Harpaz

I would like to express my gratitude for the limitless help and support of Dr. Guy Harpaz, and for the most generous funding of the Konrad Adenauer Foundation. I am also indebted to Mica Boulakia for her support throughout the project, and to the European Forum at the Hebrew University of Jerusalem, and especially Mr. Paltiel Lauterstein and Mrs. Ateret Zer-Cavod for their assistance and devotion. Any remaining errors are mine and mine alone.

November 2010 Jerusalem

Contents
1. Introduction ................................................................................................................ 2 2. Relations between the European Union and the State of Israel ................................. 4 2.1 History and Origins .............................................................................................. 4 2.2 The EU and the Israeli-Palestinian Conflict ........................................................ 6 3. Relations between the European Union and the Kingdom of Morocco .................... 9 3.1 History and Origins .............................................................................................. 9 3.2 The Dispute over the Legal Status of Western Sahara ...................................... 11 4. The EU-Israeli Dispute over Exports from the Territories ...................................... 15 4.1 Historical Background and Legal Introduction.................................................. 15 4.2 A Technical Resolution of the Dispute? ............................................................ 18 5. The Brita Case.......................................................................................................... 20 5.1 Legal Proceedings before the ECJ ..................................................................... 20 5.2 Opinion of Advocate General Bot ..................................................................... 21 5.3 The Judgment of the ECJ ................................................................................... 24 6. Analysis.................................................................................................................... 27 6.1 Trade Law Versus Public International Law? ................................................... 27 6.2 Inconsistencies as Manifestations of Double Standards? .................................. 31 7. Summary and Conclusions ...................................................................................... 38 8. References ................................................................................................................ 39

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1. Introduction
One of the most intriguing and complex trade conflicts between the EU and the State of Israel, erupting in the mid-1990s and lasting until the present, has concerned the legal status of products exported by Israel to the EU from territories which were placed under Israel‟s control following the Six Day War (1967) (the “Territories”),1 and particularly the West Bank. Israel argues that due to its de facto control of the West Bank, these products are produced in Israel‟s customs territory, falling within the scope of the 1995 Association Agreement between the EC and the State of Israel (EC-Israel Agreement),2 and hence are entitled to preferential treatment under the Agreement. On the contrary, the EU holds the position that de jure the Territories do not belong to the State of Israel, that products produced therein are not to be subject to the EC-Israel Association Agreement and hence should not benefit from preferential treatment under it.3 The European Court of Justice (ECJ), after obtaining the Opinion of Advocate General Bot (the Opinion),4 held on 25 February 2010 that these products
* MA candidate, specializing in international law, Department of International Relations, Hebrew University of Jerusalem. The introductory chapters of this project are the result of a previous case note initially examining the Brita ruling. See Guy Harpaz and Eyal Rubinson, “The Interface between Trade, Law and Politics and the Erosion of Normative Power Europe: Comment on Brita”, European Law Review 35, vol. 4 (2010): 551-571. For comments please contact eyal.rubinson@mail.huji.ac.il. 1 For analysis of the dispute, see Guy Harpaz, “The Dispute over the Treatment of Products Exported to the European Union from the Golan Heights, East Jerusalem, the West Bank and the Gaza Strip: The Limits of Power and the Limits of the Law”, Journal of World Trade 38, no. 2 (2004): 1049; Moshe Hirsch, “Rules of Origin as Foreign Policy Instruments?”, Fordham International Law Journal 26 (2003): 572; Christian Hauswaldt, “Problems under the EC-Israel Assoc. Agreement: The Export of Goods Produced in the West Bank and the Gaza Strip under the EC-Israel Association Agreement”, European Journal of International Law 14, no. 3 (2003): 591. 2 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, Official Journal L 147, 21 June 2000, p. 0003-0171. Approved by Decision 2000/384/EC, ECSC of the Council and the Commission of 19 April 2000, OJ 2000 L 147, p. 1. For analysis, see Guy Harpaz, “„A Proposed Model for Enhanced EU-Israeli Relations: Prevailing Legal Arrangements and Prospective Juridical Challenges”, Journal of World Trade 40, no. 6 (2006): 1115. 3 See Reply of the Council to written question P-2747/00 (OJ C 113/E 163): “Regarding the territorial scope of the Association Agreement, Article 83 applies only „to the territory of the State of Israel‟. The term „Israel‟ covers the territorial waters, which surround Israel, and under certain conditions also some sea-vessels. No further definition is contained in the agreement. For its part, the EC considers that the agreement applies solely to the territory of the State of Israel within its internationally recognised borders.... The EC and its Member States continue to base their relations with Israel and the Palestinians on the principles of international law, including the Fourth Geneva Convention on the Protection of Civilians (1949) prohibiting, inter alia, the establishment of settlements. The Israeli authorities have…taken a different view on the definition of the State of Israel, and maintain that the settlements issue is to be solved in the context of the Middle East Peace Process”. 4 Opinion of Advocate General Bot, delivered on 29 October 2009 in Case C-386/08. See http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-386/08.

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cannot enjoy preferential treatment under the EC-Israel Association Agreement (or under the 1997 EC-PLO Association Agreement).5 Another important territorial conflict that strongly affects trade capacities in its region is the dispute over the legal status of Western Sahara, Africa‟s last non-selfgoverning territory. Claimed and occupied by Morocco since 1976, Western Sahara faces a long-lasting bloody conflict between the Moroccans and the Polisario Front, a rebel movement established to promote independence for Western Sahara. The EU, Morocco‟s largest trading partner, has signed several trade agreements with Morocco, including a 1995 Association Agreement, as part of the Barcelona Process, and a 2006 bilateral Fisheries Agreement, fulfilling the EU‟s growing fisheries‟ import needs. However, similarly to the EU-Morocco Association Agreement, the Fisheries Agreement did not provide a territorial definition for “Morocco”, prompting strong criticism because of the alleged extension of the geographical scope of the Agreement to the waters off the coast of Western Sahara. This paper analyzes the disputes and their judicial resolutions. It highlights complexities of the issues involved, provides a legal analysis of the compatibility of the Fisheries Agreement and the EU-Morocco Association Agreement with international law, and compares the legal situation with the EU-Israeli dispute over exports from the Territories. The paper finally claims that despite the comparable attributes, the EU treats the two scenarios differently, allowing Morocco trade benefits with respect to occupied Western Sahara while denying benefits from Israeli settlement exports. The willingness of the EU political organs to pursue an approach vis-à-vis Morocco which is inconsistent with the EU‟s fundamental norms and with the jurisprudence of its judicial organ, erodes, so the paper claims, the credibility and legitimacy of Normative Power Europe.

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1997 Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, OJ 1997 L 187, p. 3 and Case C-386/08 Brita GmbH v Hauptzollamt Hamburg-Hafen respectively.

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Relations between the European Union and the State of Israel 2.9 For analysis. 9-10 December. final version. on the one hand. 1994). current relations between the parties are governed by the Barcelona Process.. Inon Dafni (2000). In the Path of Israel’s International Commercial Policy: GSP and the European Common Market (Tel Aviv: Ramot. Weiler. 27(107) Israel Tax Quarterly. The Role of the Israeli Courts in Promoting Free Trade: A Critical Study in View of the EC-Israel FTA. Whither EU-Israeli Relations?: Common and Divergent Interests (Frankfurt am Main: P. on the other.8 Indeed.. 151-161 [Hebrew]. 27 Israel Law Review. political and social relations between the EC and its Member States. 1998) [Hebrew]. 9. Daphna Kapeliuk (1993). the relations of Israel and its citizens with Europe were always complex and charged. 6 4 . 49 [Hebrew]. on account of its high level of economic development.6 Yet. European Legal Traditions and Israel: Essays on Legal History. Lang. see Commission of the European Communities: Barcelona Declaration adopted at the Euro-Mediterranean Conference. de Gruyter. 415. its willingness to establish special relations with Israel. see Nellie Munin.1 History and Origins For obvious reasons. in 1975 they concluded their first free trade area agreement. 8 See Commission of the European Union. Europe and Israel: Troubled Neighbours (Berlin: W. 1995). should enjoy special status in its relations with the European Union. Rabello. “Israel and the EC on the Eve of the Maastricht Agreement”. ed. 27-28 November 1995. 1994”. Israel succeeded in partially overcoming these difficulties insofar as economic relations were concerned. in Alfredo M. A Legal Analysis of the Free Trade Agreement of 1975 between the European Community and the State of Israel. 165 [Hebrew].. “Israel and the EC”. Avi Primor. 7 For background. 1996). Moshe Hirsch. 2004). For comment. The Future Relations between Israel and the European Communities: Some Alternatives (Tel Aviv: Bursi. Regionally. Eyal Inbar and Tal Sadeh. Israel and the then European Economic Community established diplomatic relations as early as in 1959..2. 9 For the Barcelona Process and its implications for Israel. Ilan Greilsammer and Joseph H. in Alfredo M. at 445. see Michael Rom. 1998). Germany. and the twelve non-EC Mediterranean countries of that time (then including Cyprus and Malta). in the course of time. on the basis of reciprocity and common interest…”. eds. Israel and the European Union: The Current Picture and Expectations for the Future. eds. European Law (Jerusalem: Harry and Michael Sacher Institute for Legislative Research and Comparative Law. 12 Bar-Ilan Law Studies. “Extracts of the Conclusion of the Presidency of the Essen European Council. Chava Shachor-Landau. 28 November 1995. The EU and Israel: State of the Play (Jerusalem: Ministry of Finance. Barcelona. Bulletin of the European Union. Rabello. Civil Law and Codification. Talia Einhorn (1995). Supplement 2/95: “The European Council considers that Israel. launched in 1995 in order to regulate and advance the economic. ibid.7 and in 1994 the EU announced in Essen. H. see Ephraim Ahiram and Alfred Tovias.

It also sets out the basis for. inter alia.5. 1 (1996): 87. security and regional cooperation.12 For example.13 Yet. 12 See Commission Staff Working Paper. Israel. p. the Association Agreement refers to the mutual objective of promoting peace. “Towards Distant Frontiers: The Course of Israeli Diplomacy”. 1 (1999): 109. free from quantitative restrictions. research and political cooperation between the parties.mof. at 5: Because of its relatively high level of economic development. has not been fully realized. see Einhorn. prosperity. 12. supra note 7. no. While initially Israel participated in a 5 . relations are governed by the 1995 Association Agreement between the EC and its Member States. on the one hand. be regarded merely as an economic instrument. “Mapping Israel‟s Policy Options Regarding Its Future Institutionalized Relations with the EU”. Moshe Hirsch. however. nos. SEC(2004) 568: “The State of Israel participated in the 4th and 5th Framework Programme for Research and Technological Development. of services and of movement of capital is also regulated under the Association Agreement. Arie Reich. 14 For an analysis of Israel‟s failure to realize the economic potential in its relations with the EU. Israel does not benefit from bilateral financial support under MEDA.il/museum/hebrew/wider_europe. see http://www. “Improving Israel-EU Relations: The European Economic Area as a Possible Model”. the strategic-political 10 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States. no. In June 2003 the agreement under which Israel joined the 6th Framework Programme was signed. Europe‟s satellite radio navigation programme”. of the other part. “The European Union and Israel: The Customs Union Alternative”. However. commercial. Alfred Tovias. 13 Sasson Sofer. in principle. Tal Sadeh.10 Under the Association Agreement.Bilaterally. European Neighborhood Policy. it is eligible for MEDA funds earmarked for regional cooperation. Liberalization of trade in agricultural goods.11 The Association Agreement must not. and the State of Israel. The EU is in fact Israel‟s chief trading partner. 1-2 (2004): 7. like the Association Agreement itself. see especially Munin. no. “The Juridicization of International Trade Relations”. cultural. and to the need to advance stability.2004. ibid. Israel Affairs 5. Israel [COM(2004)373 final]. and the State of Israel. supra note 12. The core of the Association Agreement is the creation of a free trade area for industrial goods. Goods can thus be exported from the State of Israel to the EU and vice versa.15 Even worse. CEPS – Centre for European Policy Studies (2003). The establishment of close ties with the EU was indeed considered one of Israel‟s greatest diplomatic achievements. Brussels.gov. “The 1995 Trade Agreement between the European Communities and Israel: Three Unsolved Issues”. each party granted the other preferential economic. 15 See Country Report.pdf. 11 For Israeli official statistics. understanding and tolerance in the Mediterranean. Eyal Inbar. on the other (the Association Agreement). 21 June 2000. Official Journal L 147. European Foreign Affairs Review 1. Israel and the Commission initialed in March 2004 the agreement on Galileo. Northwestern Journal of International Law and Business 17 (1997): 775. For analysis. exempt from custom duties and. the potential of the Essen Declaration. 1 (1999): 87. 0003-0171.. Country Report. Israel Affairs 5. Israel Affairs 10. of the one part.14 The same applies to the Barcelona Process. at 145-226. technological and research status.

1 (1994): 118. or in the words of Peters and Dachs. Israel Affairs 1. East Jerusalem and the Gaza Strip since the Six Day War clashes with the Palestinian aspiration for statehood in these disputed areas. 1947-1949 (Cambridge: Cambridge University Press.18 UN officials have long maintained that the Israeli occupation of Palestinian territories in the West Bank. A History of the Israeli-Palestinian Conflict (Bloomington: Indiana University Press. “Israel and Europe. bearing in mind the historical events of the Holocaust that often cause suspicion and revulsion among Israelis. 22 November 2006. 16 See Rosemary Hollis. no. the Israeli media and the political arena often present negative images of the EU. 20 Mark Tessler. European Foreign Affairs Review 8 (2003): 289-312. Israel is eligible for participation in the Erasmus and Tempus programs.19 This situation becomes even more problematic with the establishment of movements on both sides aiming for rejecting any territorial rights or aspirations of the other side in the Holy Land. “The European Union has become an easy scapegoat in israeli public discourse”.2 The EU and the Israeli-Palestinian Conflict The Arab-Israeli conflict was among the first foreign themes addressed by the EU (then the European Economic Community). although its overall impact has been minimal. in the Euro-Med audiovisual and Euro-Med heritage programs. Since the establishment of the State of Israel in 1948 and the creation of the Palestinian refugee problem. During much of number of projects.20 some of which use force and some. Regarding higher education. While this “external legitimacy deficit” the EU suffers from in the State of Israel is not the central issue of this paper. Bianca Kühnel.21 Europe has attempted to maintain its role as a neutral player in the region. ed. 17 Joel Peters and Gisela Dachs. 1987).. the Troubled Relationship: Between Perceptions and Reality”. The Birth of the Palestinian Refugee Problem. 1994). 18 For analysis. 21 For analysis. Troubled Waters: Europe and Its Relations with the United States and Israel (Jerusalem: Institute for European Studies. “The Politics of Israeli-European Economic Relations”.16 Many Israelis view the EU as a hostile player. CEPS Working Paper (2004): 6. 6 .17 Indeed. following the outbreak of the Second Intifada it has become increasingly difficult for the country to find partners in the Mediterranean area. 19 Ibrahim Gambari. the UN undersecretary-general for political affairs. incitement through the media and education.relationship since the Six Day War (1967) has largely been characterized by mutual suspicion and tension. clearly it affects perceptions and requires the EU to act carefully with respect to Israel. “European Foreign Policy and the Arab-Israeli Dispute: Much Ado about Nothing?”. Yet Israel participates in Euro-Med Youth (promoting people-to-people contacts and cooperation between actors of civil society and NGOs in the youth field). see Benny Morris. 2. Haaretz. see Elena Aoun. 2003).

the Israeli media and the political arena often present negative images of the EU. The Palestinians are 22 David Newman and Haim Yacobi. which has been used as a tool to pressure Europeans to support Palestinian and Arab aspirations in the Middle East. the Roadmap was the fruit of a joint effort by the members of the Quartet – the EU. The plan consists of several phases.this period.bbc. 24 Ibid.23 Such compulsory forms of intervention are often seen as constituting the „carrot‟ and „stick‟ at the disposal of a wealthy and powerful third party. as claimed by Newman and Yacobi.stm. 23 Ibid. “The EU and the Israel/Palestine Conflict: An Ambivalent Relationship”. bearing in mind the events of the Holocaust that often cause suspicion and revulsion among Israelis.26 The first phase deals with ending terror and violence. European support for Israel gradually decreased. and so did the Israeli perceptions of the European role in the conflict. Europeans have been torn between their commitment and support for Israel‟s right to exist in security.determination. EUBorderConf Working Paper Series (2004): 21. however. April 2003. introducing the Roadmap for Peace in the Middle East. See Haaretz. Roadmap for Peace in the Middle East. US. available at: http://news. normalizing Palestinian life and building Palestinian institutions. and the Palestinians‟ right to self. in each of which the parties would be expected to perform their obligations in parallel. 25 Quartet on the Middle East. said at a Tel Aviv University conference on 6 June 2005 that “this is the essence of the innovations and advantages in the Roadmap. 26 Dov Weissglass. Since 1967. the EU failed to devise a unified policy towards the region. on the other. In recent years. Russia and the UN. and its official goal was to reach a comprehensive settlement of the Israeli-Palestinian conflict.22 The Six Day War can be seen as a turning point not only in the Israeli-Palestinian conflict but also in the European approach to the region. 18. as far as Israel‟s concerned”. 7 .co. European policies towards the area changed. as the continuation of the occupation switched many Europeans‟ support for the pre-1967 “underdogs” (Israel) to the post-1967 “underdogs” (the Palestinians). on the one hand.jhtml?itemNo=486151&contrassID=2&subContrassID= 13&sbSubContrassID=0. Indeed.25 Officially presented in 2003. This period is characterized by “European policies aimed at directly addressing the political leadership of the conflict participants”. with different countries changing their stances according to specific political and timing contexts.24 Since then.co. http://www. the EU has come closer to adopting a single policy towards the conflict.uk/2/hi/middle_east/2989783. political adviser to Israeli Prime Minister Sharon. at p. Some scholars claim that after the Arab oil embargo.il/hasite/pages/ShArtPE. Working Paper 3.haaretz.

Israel is to withdraw from Palestinian areas occupied from 28 September 2000 and freeze all settlement activity.27 The second phase involves the creation of a “temporary” Palestinian state with provisional borders and attributes of sovereignty. see www.29 On different occasions. http://ec. could be seen as a partial implementation of Israel‟s commitments under the Roadmap‟s first phase.htm. the Palestinians. which we undertake not accordingly to the Roadmap. Sharon wrote: “This initiative. which took place in 2005. the parties would reach a settlement based on UN Security Council Resolutions 242.il/process/docs/DisengageSharon_letters_eng.knesset. Available at: http://www. For the full list of the Israeli reservations. which mostly concern the security issues of the temporary Palestinian state. the refugees and permanent border and security issues. While so far the sides have made no progress towards fulfilling their obligations under the first phase of the plan. The Israeli disengagement from the Gaza Strip. all Arab states are to normalize relations with Israel.to cease incitement against Israel and to undertake comprehensive political reforms in preparation for statehood.eu/comm/external_relations/mepp/index. is an independent Israeli initiative.htm. in fact. Referring to the plan. yet it does not contradict the Roadmap. it is still the only political plan officially accepted by Israel.htm. the plan promises.knesset. the EU has expressed its willingness to promote confidence-building measures between the parties and to assist the implementation of the plan. ending the Israeli-Palestinian conflict.gov. 29 Statements on official EU website. the European Council noted that: “The Council reiterated the importance of the Quartet‟s Road Map for the re-establishment of a positive political perspective in the region. These reservations are extremely limiting to the new state‟s sovereignty. 338 and 1397. Although this constitutes modest progress indeed. the EU and the entire international community. which is to be established with no reference to issues such as the future of Jerusalem.il/process/docs/roadmap_response. In parallel. 28 Israel has presented 14 reservations to the original plan (June 2005).gov. After the implementation of these steps. to which we are committed”.28 The third phase involves a permanent-status agreement and. It called on both parties to seize the opportunity offered to put the Middle East Peace Process back on track”. 8 .europa. based on a new constitution. evidently the EU‟s involvement in the Israeli-Palestinian conflict is still significant. In this phase. 27 In a letter to President Bush discussing the disengagement plan (14 April 2004).

see Elena Baracani. no. Aziz Elbehri and Thomas Hertel.1 History and Origins Located only 13 km off the shores of Spain. 1 (2002): 152.30 Morocco and the European Economic Community established diplomatic relations in 1960. The reports are available at: http://ec. Multilateral Liberalization”.eu/legislation_summaries/external_relations/relations_with_third_countries/mediterranea n_partner_countries/r15001_en. Available at: http://europa. “The European Union and Democracy in the Arab Muslim World”.pdf. 9 . the EU-Morocco Action Plan was adopted for a period of five years. see Thomas Rutherford. final version. In July 2005. July 2005. in order to further 30 For analysis. “Two Cheers for Whom?: The European Union and Democratization in Morocco”. see Said Haddadi. 2 (2002).31 The EU-Morocco Association Agreement was later signed as part of the Barcelona Process32 which began in 1995. “From the EMP to the ENP: A New European Pressure for Democratization?: The Case of Morocco”. 31 For background and analysis. Centre for European Policy Studies Middle East & Euro-Med Project Working Paper No. To date. April 2008 and April 2009. 22 (2003): 73-89. no. 1997). “A Comparative Analysis of the EU-Morocco FTA vs. and in 1969 they concluded their first free trade area agreement. the rule of law and human rights – all within the framework of the European Neighbourhood Policy. “The EMP and Morocco: Diverging Political Agendas?”. seeking to strengthen bilateral ties and promote Morocco‟s advanced status.europa. on the one hand.eu/world/enp/pdf/action_plans/morocco_enp_ap_final_en. no. and the twelve non-EC Mediterranean countries on the other.3. in December 2006. in October 2008 the EU and Morocco signed a joint document within the framework of the Association Agreement. World Economy 25. Moreover. Democratization 9. Matthew McQueen. 32 For background.htm. Said Haddadi.eu/world/enp/pdf/country/morocco_enp_country_report_2004_en. see European Union-Morocco Action Plan. The Process was initiated in order to regulate and advance the economic. For analysis.33 addressing mutually recognized priorities and actions to be pursued in the areas of democratization. and entered into force in 2000. Relations between the European Union and the Kingdom of Morocco 3. see Commission of the European Communities: Barcelona Declaration adopted at the Euro-Mediterranean Conference. Centre for the Study of European Politics and Society Working Paper (2005). GTAP Working Paper 31. Alasdair R.europa. Barcelona. the Kingdom of Morocco is one of the EU‟s most important partners in the Mediterranean region. The European Union and the South: Relations with Developing Countries (London: Routledge. 2004. political and social relations between the EC and its Member States. 28 November 1995. 33 For background. available on EU website at: http://ec. Mediterranean Politics 8. Marjorie Lister. 27-28 November 1995. Youngs. three progress reports have been drawn up. 9 (1997): 1369-1385. Economic Modeling (1997) 14: 237-269. “Morocco‟s Free Trade Agreement with the European Community: A Quantitative Assessment”. “The EU‟s Free-Trade Agreements with Developing Countries: A Case of Wishful Thinking?”. Elisabeth Rutstrom and David Tarr.pdf.

http://europa. was to promote EU fisheries in the waters of Morocco by providing the European fleet with access to fish resources “falling within the sovereignty or jurisdiction of the Kingdom of Morocco”. adopted by Council Regulation EC No 764/2006 of 22 May 2006 (OJ L141). see EU website at: http://ec. petroleum gas and other hydrocarbons. a territory which has been under Moroccan control since 1975.eu/doclib/docs/2006/september/tradoc_113421.pdf. is available at: http://eur-lex. economic integration and other cooperation initiatives. the EU is by far its largest. from fisheries and aquaculture. see http://trade. An official report states that “with a production of almost 7 million tonnes of fish. most important trading partner. over 6 million tons a year had to be imported to meet the demands of the EU. articles 2(a). despite the EU‟s massive fishery catches. covering the period from February 2007 to February 2011. This prompted strong criticism because of the alleged extension of the geographical scope of the Agreement to the waters off the coast of Western Sahara. 36 For background and official full statistics.europa. one of the most significant Moroccan exports to the EU is the fisheries sector.35 While the main products Morocco imports from the EU are fabrics. IP/07/1155.eu/LexUriServ/LexUriServ. “The New Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco: Fishing Too Far South?”. the Fisheries Agreement does not provide a territorial definition of the Kingdom of Morocco.htm.ec. 11. which the EU called “one of the major fisheries agreements for the EC”. 38 Ibid. The Agreement.europa. and as much as 71. For analysis. 35 For official statistics and economic analysis.9% of Moroccan exports are destined for it.34 Maintaining such intimate ties with Morocco. 37 “Morocco-EU Fisheries Partnership Agreement”.eu/rapid/pressReleasesAction. regarded by the EU as an “extremely important economic activity in the European Union”. This paper will provide a legal analysis of the issues involved in the compatibility of the Fisheries Agreement and the EU-Morocco 34 Document‟s full text is available on EU website: “EU-Morocco: Association Council Decides to Strengthen Bilateral Relations”.do?reference=IP/07/1155&format=HTML&aged=0&langu age=%20ENLanguage=en.38 Similarly to the EU-Morocco Association Agreement. Official statistics shows that more than half of Morocco‟s foreign purchases (51.do?uri=OJ:L:2006:141:0004:0037:EN:PDF.. The aim of the Agreement.eu/fisheries/index_en. “Morocco-EU Fisheries Partnership Agreement”. 11 . Resulting from this situation. Anuario Español de Derecho Internacional 1 (2006). in 2005. the EU is the world‟s second largest fishing power after China”. in June 2006 the EU and Morocco signed a bilateral Fisheries Agreement.37 as part of the Common Fisheries Policy (CFP).political relations. see Enrico Milano.36 Yet.europa.4%) originate from the EU.

“The Decolonisation Process in Western Sahara”.un. 40 For background. Supp. 29 UN GAOR Supp. A/9631 (1974). Available at: www.org/doc/RESOLUTION/GEN/NR0/738/94/IMG/NR073894. see Obinna B. agreed to postpone its planned referendum on self-determination in the territory. 2008 revision. World Population Prospects. Mark Smith. “Sovereignty over Unoccupied Territories: The Western Sahara Decision”. a sparsely populated desert territory in northwestern Africa. 1975. International and Comparative Law Quarterly 28 (1979): 296-312. indeed. determining Western Sahara at the time of colonization by Spain was not.42 On 13 December 1974. the General Assembly adopted Resolution 3292. 16. in turn.1. For analysis. 12. In addition. 42 Principle VI. decolonization processes were initiated in 1975. Table A. Erik Jensen. Case Western Reserve Journal of International Law 9.41 Spain. 43 General Assembly Resolution 3292. 104. Harvard International Law Journal 17 (1976): 609-621.pdf. 31. a territory belonging to no one (terra nullius)”. 3. available at: http://daccess-ddsny. 2 (1977): 135-161.org/doc/RESOLUTION/GEN/NR0/152/88/IMG/NR015288. 29. ICJ Reports. p. “The International Court of Justice: Advisory Opinion on the Western Sahara”. Okere.pdf?OpenElement. available at: http://daccess-ddsny. Mark Janis. 2004). at the time of colonization by Spain. After 90 years of the Spanish mandate starting in 1885. GAOR 15th Session. 23 (1999): 7-30. 41 ICJ Advisory Opinion on Western Sahara. UN Doc. a territory belonging to no-one (terra nullius)?” and “What were the legal ties between the territory and the Kingdom of Morocco and the Mauritanian entity”?43 The Court published its Advisory Opinion on 16 October 1975. Toby Shelley. 11 . at 103.un. no. the Court could not find “any legal ties of territorial sovereignty between Western Sahara and the Moroccan State that might affect the principle of self-determination through the 39 For an official UN geographic and demographic analysis. VI-IX UN Doc A/4684 (1960).org/esa/population/publications/wpp2008/wpp2008_text_tables. Department of Economic and Social Affairs Population Division (2009). 2004).Association Agreement with international law. Western Sahara: Anatomy of a Stalemate (London: Lynne Rienner.40 triggering a Moroccan request for the UN General Assembly to refer the issue of the fate of postmandate Western Sahara to the International Court of Justice (ICJ).pdf?OpenElement. General Assembly Resolution 1514 (XV) 15 December 1960. no.2 The Dispute over the Legal Status of Western Sahara Western Sahara. 39 is Africa‟s last non-self-governing territory. see Kamal Fadel. comparing the legal situation with the EU-Israeli dispute over the legal treatment of goods exported from the territories which have been under Israel‟s control since the Six Day War. asking the ICJ to decide on the following issues: “Was Western Sahara. “The Western Sahara Case”. Indigenous Law Bulletin 4.un. in which the people of Western Sahara could choose either full independence or to remain attached to Spain. see United Nations. Endgame in the Western Sahara: What Future for Africa’s Last Colony? (London: Zed.

Marc Plattner and Daniel Brumbers.1975. Morocco and Mauritania.47 After Spanish colonial forces departed in February 1976. “Quicksand in the Western Sahara?: From Referendum Stalemate to Negotiated Solution”.un. “The Green March in Historical Perspective”. UN Doc. 49 For detailed analysis of the Madrid Agreement.org/doc/RESOLUTION/GEN/NR0/782/27/IMG/NR078227. 12 . UN Doc. and tilted the balance of power in his favor until his death in 1999. in particular. “transfer sovereignty over the territory”50 in accordance with the UN and international law.46 this could not be implemented because of Morocco‟s deferral.45 This well-calculated act. 45 For further reading and analysis. 67-75 (Baltimore: Johns Hopkins University Press. Middle East Journal 33 (1976): 20-33.11.48 The territory was ceded to both Morocco and Mauritania with the signing of a partition agreement in Madrid on 14 November 1975 between Spain. in Larry Diamond. resulted in a denunciation by the Security Council in Resolution 380 urging Morocco to “immediately withdraw from the territory of Western Sahara all the participants in the march”. “Depoliticization in Morocco”. Spain in fact reneged on its initial intent to conduct a referendum on self-determination in Western Sahara. 2003). Available at: http://daccess-ddsny. 48 See Jerome Weiner. in return for access to natural resources and fishing rights in Western Sahara waters for ten years.. see Jerome Weiner. pressuring the Spanish authorities to negotiate directly over the future status of Western Sahara‟s territory. Although Spain officially withdrew from Western Sahara in February 1976. see Jacques Roussellier. of the principle of selfdetermination through the free and genuine expression of the will of the peoples of the territory”. Morocco commenced a massive government-encouraged civilian march into the territory of Western Sahara. S/Res/380. 06. 50 Letter from the Under Secretary General for Legal Affairs to the President of the Security Council.01. 47 For further discussion.44 Thus. The UN produced no official response to this 44 Paragraph 162: “The court has not found legal ties of such a nature as might affect the application of resolution 1514 in the decolonization of Western Sahara and. However. known as “the Green March”. S/2002/161. Shortly after the rendering of the ICJ Advisory Opinion. It also greatly increased the king‟s popularity as defender of the country‟s territorial integrity and symbol of its sovereignty. 46 United Nations Security Council Resolution 380. no. 29. Islam and Democracy in the Middle East.49 By signing the agreement. “The Green March in Historical Perspective”. Middle East Journal 33 (1979): 20-33. the local Sahrawi (Western Sahara natives) population was entitled to self-determination through the planned referendum. it never did. 10 (2005): 311-336.2002. see Abdeslam Maghraoui. in a legal fashion.free and genuine expression of the will of the peoples of the territory”. eds. International Negotiation 2.pdf?OpenElement. Morocco took control of the northern two-thirds of Western Sahara while Mauritania took what was left in the south. the designated referendum never took place.

bitter battle between the Polisario and Morocco prompted Morocco to construct a 2250-km-long “Defense Wall” separating the Moroccan-controlled areas in Western Sahara from the Polisario. The Sahrawi Arab Democratic Republic. 20. Mauritania officially renounced its claim to Western Sahara‟s territory in 1979 following an armed conflict with the Polisario Front. no. 1987): 31-62.upes. UN Doc. Maria Stephen and Jacob Mundy. Western Sahara currently has the status of a Non-SelfGoverning Territory within the meaning of Article 73 of the UN Charter.1988. 53 For background and information on the Sahrawi Arab Democratic Republic. it is safe to say that the EU has not taken sides in the dispute. see Claude Bontems. S/Res/621 and 690. Tony Hodges. no. supported by Algeria. eds. “Morocco versus Polisario: A Political Interpretation”. Journal of Modern African Studies 32. in Richard Lawless and Laila Monahan. “The Government of the Sahrawi Arab Democratic Republic”. As to the European stances on the dispute. 2 (1994): 265-278.org/default_eng.worldstatesmen. “A Battlefield Transformed: From Guerilla Resistance to Mass NonViolent Struggle in the Western Sahara”. See also Polisario‟s official website at: http://www. 52 For an up-to-date list of countries formally recognizing the Sahrawi Arab Democratic Republic. 13 . In September 1988. claiming the entire territory of Western Sahara as its own.asp. Spain does not play its de jure administrative role and the territory is administered de facto by 51 For background on the Polisario Front. 54 United Nations Security Council Resolution 621. see Anthony Pazzanita. 51 The Polisario Front declared the Sahrawi Arab Democratic Republic (SADR).04.agreement. “The Origins of Sahrawi Nationalism”. Journal of Military and Strategic Studies 8. administered by MINURSO.org/doc/RESOLUTION/GEN/NR0/541/48/IMG/NR054148. UN Doc. War and Refugees: The Western Sahara Conflict (London: Pinter. Morocco withdrew its membership in the Organization ever since.09. represented by a government-in-exile.1991.pdf?OpenElement. attempts to hold a referendum have failed and parties thus far have rejected all brokered proposals.53 Mauritania‟s withdrawal and the lasting. a partially52 recognized state in February 1976. The European Parliament determined that “Under international law. whose sovereignty remains unresolved and disputed. 29..54 Despite a UN-administered cease-fire that has remained in effect since September 1991. Third World Quarterly 9.html. the UN Security Council authorized in Resolution 621 the appointment of a Special Representative to Western Sahara and in April 1991 it established the UN Mission for the Referendum in Western Sahara (MINURSO) (Resolution 690). S/Res/690. Available at: http://daccess-ddsny.un. Morocco still claims and administers the majority of Western Sahara‟s territory. a Sahrawi rebel movement established to promote independence for Western Sahara. 3 (2006): 132.org/Western_Sahara. indirectly legitimizing the Moroccan claim to Western Sahara‟s territory. 1 (1987): 168-186. was seated as an Organization of African Unity (OAU) member in 1984. see http://www. no.

The resolution was strongly condemned in Turkey.eu/sides/getDoc. interested in maintaining close ties with Morocco. defense and economic ties with Turkey. 58 The situation described here could possibly be compared to the American interests in Turkey.264177.com/news/turkey-recalls-ambassador-from-washington-1.56 On the other hand. Congress adopted a non-binding resolution labelling the World War I-era massacre of Armenians by Turkish forces “genocide”. For analysis. Among the strong opponents of the EUMorocco Agreement are mainly northern states. have taken a more careful approach to the subject. is willing to overlook matters related to the recognition of the Armenian genocide. still holds many economic and political interests in Morocco.S.do?pubRef=-//EP//NONSGML+REPORT+A62006-0163+0+DOC+PDF+V0//EN. the U.55 Different EU Member States hold profoundly divergent positions towards the Western Sahara problem. 14 .europarl.S. and is closely linked with Morocco in matters of foreign policy and economy. however. which have consistently raised doubts about the legality of the EU-Moroccan relationship and initiated the Parliament and Commission resolutions discussed above. 56 Ibid.57 58 55 See http://www. 57 Ibid. Lately. as the former colonial power. see http://www. the southern states.europa.Morocco”. Spain. similarly to France. the U.haaretz. Maintaining strong political.

The core of the Agreement is the creation of a free trade area for industrial goods and the liberalization of trade in agricultural goods originating in the (then) Community and in Israel. The EU-Israeli Dispute over Exports from the Territories 4. “customs duties on imports and exports. first and foremost.62 Industrial goods can thus be exported from Israel to the EU and vice versa. 61 See. 1. Despite its seemingly modest scope in monetary terms. the EU and Israel have been in conflict over the legal status and resultant legal treatment of products exported by Israel to the EU from the Territories which came under Israel‟s control following the Six Day War. was divided into three areas. under the EC-Israel Agreement. In relation to the West Bank. Area B (under Israeli military competence and Palestinian civil competence). in principle.1 Historical Background and Legal Introduction Since 1998. namely the Golan Heights. 62 Article 8 of the EC-Israel Association Agreement.. Since Israel‟s disengagement from the Gaza Strip (2005). “originating products” are to benefit from the EC-Israel 59 60 For analysis. the West Bank and the Gaza Strip. and Area C (under Israeli responsibility in civil and security matters). Ibid. Harpaz. the dispute should be examined. shall be prohibited between the Community and Israel.60 Legally speaking.”. excluding East Jerusalem.. the West Bank. the dispute is focused. East Jerusalem and the West Bank. for practical purposes. The entitlement to preferential treatment under the EC-Israel Agreement is determined by Protocol 4 to the Agreement. the dispute is confined to the Golan Heights. free from quantitative restrictions. Articles 6-18 of the EC-Israel Association Agreement. on products produced in the Israeli settlements (which were excluded by the Israeli-Palestinian Interim Agreement from Area C) and exported by Israel to the EU as Israeli products. see G. cited above fn.61 With respect to industrial goods. With respect to the West Bank and according to the IsraeliPalestinian Interim Agreement on the West Bank and the Gaza Strip. exempt from custom duties and.59 the dispute has clouded EU-Israeli economic as well as political relations. Area A (under exclusive Palestinian military and civil competence). 15 . According to the Protocol. in particular. East Jerusalem. and any charges having equivalent effect.4.

the EU Member States and the State of Israel.1 certificate63 to be issued by the customs authorities of the exporting state. they may request subsequent verification of the EUR.66 Verification would then be carried out by the customs authorities of the exporting state. 16 .to the territory of the State of Israel”. Under Article 39 of the Protocol.Agreement upon submission of a EUR. a Customs Cooperation Committee was established. 67 Accordingly.64 Products originating in “Israel” are defined as products “wholly obtained in Israel” and products “obtained in Israel” which contain materials not wholly obtained there. 66 Provided for in Article 32 of the EC-Israel Protocol.. where the customs authorities of the importing state have reasonable doubts as to authenticity of the EUR. each of the parties may refer any dispute relating to the application or interpretation of the Agreement to the Association Council and the latter may refer that dispute to a binding disputesettlement mechanism provided under the same Article. an administrative body composed of customs experts and officials from the Commission. if in cases of reasonable doubt there is no reply within 10 months or if the reply does not contain sufficient information to determine the authenticity of the document in question or the real origin of the products. or where these procedures raise a question of interpretation of the Protocol. Article 83 of the Agreement merely refers “. The EC-Israel Agreement provides for the establishment of an Association Council responsible for examining any major issues arising within the framework of the Agreement (Article 75). 68 Article 33 of the EC-Israel Protocol. "entrusted with carrying out administrative cooperation with a view to the correct and uniform application" [of this Protocol]. the matter is to be submitted to a Customs Cooperation Committee. 69 See Article 83 of the Association Agreement. When a dispute arises in relation to the verification procedures and it cannot be settled between the customs authorities.70 Under this provision. But these provisions were not 63 64 Article 17(1)(a) of the EC-Israel Protocol.1 certificate. provided that those materials have undergone sufficient working or processing “in Israel”. Article 18(1) of the EC-Israel Protocol. the requesting customs authorities shall…refuse entitlement to the preferences.69 thereby failing to provide a territorial definition or to offer a clear statement of the Agreement‟s territorial application. 65 Articles 2(2)(a) and (b) of the EC-Israel Protocol.1 certificates.68 Neither the Protocol nor the EC-Israel Agreement addresses the question of the precise territorial scope of the EC-Israel Agreement. 70 Article 67 of the EC-PLO Agreement. An unsatisfactory verification procedure67 would result in the requesting customs authorities refusing entitlement to preferential treatment. the originating status of the product concerned or the fulfillment of the Protocol‟s other requirements.65 According to the Protocol..

17 . both parties preferring to resolve it through diplomatic channels. 76 Article 16 of the EC-PLO Protocol.73 Under Protocol 3 appended to the EC-PLO Agreement (EC-PLO Protocol). 74 Articles 2(2)(a) and (b) of the EC-PLO Protocol. at p. In the event of a dispute relating to the interpretation or application 71 72 Under Article 1(2) of the EC-PLO Agreement. which describes the products concerned in sufficient detail to enable them to be identified. which is designed to promote the economic and social development of the West Bank and the Gaza Strip and to encourage regional cooperation with a view to consolidating peaceful coexistence and economic and political stability. the term “originating products” includes products originating in the West Bank and Gaza Strip which are products wholly obtained in the West Bank and Gaza Strip and those incorporating materials which have not been wholly obtained there. provided that such materials have undergone sufficient working or processing in the West Bank and Gaza Strip. or any other charge having equivalent effect. 597. Alternatively. Another relevant agreement is the EC-PLO Association Agreement. shall be introduced on trade between the Community and the West Bank and Gaza Strip”.1 movement certificate. or on any other commercial document.76 Article 73 of the EC-PLO Agreement states that it applies to the “territory of the West Bank and the Gaza Strip”.invoked in this dispute.74 The EC-PLO Protocol further provides that products originating in the West Bank and Gaza Strip are to benefit from the EC-PLO Agreement upon submission of a EUR. 75 Article 15(1) of the EC-PLO Protocol. It must be stressed that these provisions apply to the whole of the West Bank and Gaza Strip. 73 C.72 According to Article 6 of the Agreement “imports into the Community of products originating in the West Bank and the Gaza Strip shall be allowed free of customs duties and of any other charge having equivalent effect and free of quantitative restrictions and of any other measure having equivalent effect…” (emphasis added). 71 According to the EC-PLO Agreement “[n]o new customs duty on imports. despite the fact that the Palestinian Authority enjoys only partial control of that territory. Article 5 of the EC-PLO Agreement (emphasis added). 1.75 The certificate is to be issued by the customs authorities of the exporting state. Hauswaldt. in the situations listed in Article 20(1) of the Protocol – a declaration made out by the exporter on an invoice. or on a delivery note. cited above fn. but neglects to define the precise boundaries of these territories.

82 Israel was ultimately forced.78 Subsequently.77 Following futile negotiations designed to solve the long-running dispute. cited above fn. the Commission announced the publication of an Avis. 4. 2001/C 328/04. “Notice to Importers – Imports from Israel into the Community” (OJ 2001 C 328/6).of the EC-PLO Agreement. the Commission. stating that it was legally bound to guarantee the implementation of that Agreement and to protect the Union‟s own resources. at para. 79 See the draft minutes of the second meeting of the EU-Israel Association Council of 20 November 2001. 217 CEPS Working Document (2005). 6). 84 For analysis. Harpaz. 83 For analysis. available at: http://www. 4. p. 82 See Official Journal of the European Communities.do?reference=PRES/01/414&format=HTML&aged=0&lg= pl&guiLanguage=en. at a meeting of the EU-Israel Association Council (2001).79 the Commission highlighted the remaining differences of interpretation of the territorial scope of the EC-Israel Agreement. specify whether 77 78 Article 67 of the EC-PLO Agreement. 81 “Notice to Importers – Imports from Israel into the Community”. which was adopted by the EU-Israel Customs Cooperation Committee and which sparked much criticism both in Israel 83 and in the EU.be/book/widening-gap-between-rhetoric-and-reality-eu-policy-towards-israelipalestinian-conflict. 1.. each party may refer the dispute to the Joint Committee for settlement. reported the difficulties encountered in implementing the Protocol as it pertained to exports of goods certified as originating in Israel but actually produced in the Territories. 29. see G.84 Israel would specify the geographic location of production in the certificate of origin issued for goods exported to the EU. 23 November 2003. In August 2004. cited above fn.80 Consequently. referring to ibid. EC Commission. at p. to concede. 18 . “The Widening Gap between Rhetoric and Reality in the EU Policy towards the Israeli-Palestinian Conflict”.ceps. due to the asymmetric bargaining strengths of the two sides. p.eu/rapid/pressReleasesAction. 23 November 2001 (OJ 2001 C 328. 30. at para.2 A Technical Resolution of the Dispute? Under the solution agreed. however. at: http://europa. See the Opinion of AG Bot.81 informing importers that products exported by Israel from the Territories were not entitled to preferential treatment under the EC-Israel Agreement. the two parties reached what then seemed to be a “technical arrangement”. It would not. 4. referring to Implementation of the Interim Agreement on Trade and Trade-Related Matters between the European Community and Israel [SEC(1998) 695 final]. cited above fn. in a communication to the Council and the European Parliament on 12 May 1998. see Nathalie Tocci. 1057. 4. 80 See the Opinion of AG Bot.

to issue preferential proof in an official certificate of origin regarding goods exported from the Territories. the EU reiterates its position of principle on the Israeli practice of issuing preferential proofs of origin for goods coming from settlements in the occupied areas.the goods originated in the Territories or not. which are subject to non-preferential duties…. contrary to the EU‟s stance of principle. by allowing them to identify those goods which originate in Israel.85 Although the implementation of the technical arrangement seemed to have brought the dispute to an end. to provide preferential treatment only to goods exported from Israel proper (defined by the territorial borders on the eve of the Six Day War). 85 As the EU itself proclaimed in 2004: “This technical arrangement…will allow customs services of the EU Member States to apply the provisions of the Association Agreement regarding rules of origin in a more efficient and effective way. and which qualify for preferential duty. the dispute re-emerged in 2008 thanks to a reference submitted by a German court to the ECJ under the aegis of the preliminary ruling procedure. by instructing the national customs authorities of its Member States. The solution allowed Israel to meet the EU‟s demands. as opposed to those coming from the settlement areas. 19 . which are not covered by the Association Agreement”. while continuing. on the basis of the geographic location specified in the Israeli certificate of origin. this solution allowed the EU political organs (the Commission and the Council of Ministers) to give de facto meaning to its de jure nonrecognition of the Territories as part of the State of Israel. On the other hand.

86 According to AG Bot. 52-53. an Israeli settlement situated in the West Bank. cited above fn. 54. the German customs office requested subsequent verification of the proof of origin. When the goods arrived in Germany. 4 AG.000. Hauptzollamt Hamburg-Hafen. As such. That objection was dismissed.. a German company.87 Deeming that reply to be “insufficient” within the meaning of that term under Article 32(6) of the EC-Israel Protocol. leading Hauptzollamt Hamburg-Hafen to refuse preferential treatment to the products in question. Brita sought to obtain a preferential tariff under the EC-Israel Agreement on the basis of invoice declarations made out by the supplier confirming that the products concerned originated in Israel. at para. causing Brita to bring an action before the Finanzgericht Hamburg (Finance Court). by way of supplementary information. the German customs authorities. The Brita Case 5.1 Legal Proceedings before the ECJ The legal proceedings before the ECJ arose when Brita GmbH (Brita). The Israeli customs authorities failed to reply. 21 .88 leading Brita to launch an objection before the Hauptzollamt Hamburg-Hafen. the Ministerial Order (file reference III B 5 – Z 4215 28/01) stated that requests for subsequent verification must be made in relation to all preferential certificates issued in Israel where there was good reason to suspect that the goods concerned might be from Israeli-occupied settlements. 87 AG.5. ibid. based in Mishor Adumim. The Israeli exporter in question was operating from an Israeli settlement which is under Israeli responsibility in civil and security matters and was thus both de facto and de jure under Israel‟s customs authority. imported drink-makers for sparkling water manufactured by the Israeli company Soda-Club Ltd (Soda-Club).86 The Israeli customs authorities replied that the verification they had carried out had “…proven that the goods in question originate in an area that is under Israeli Customs responsibility. at paras. they are originating products pursuant to the Israel-EU…Agreement and are entitled to preferential treatment under that Agreement”. where there was good reason to suspect that the goods concerned might be from Israeli settlements in the Territories. whether the goods were produced in Israeli settlements in areas under Israeli control since 1967. 88 In the amount of approximately €19. However. based on a German ministerial order. requested the Israeli customs authorities to indicate. Postclearance recovery of customs duties was therefore sought.

insofar as the dispute relates to the territorial scope of the EC-Israel Agreement. 91 See Joined Cases C-23/04 to C-25/04 Sfakianakis [2006] ECR I-1265. cited above fn. at paras.1 certificate duly issued by the customs authorities of the state of export and the former are bound by the results of any subsequent verification conducted by the latter.89 asking inter alia whether the German customs authority should apply the EC-Israel and/or the EC-PLO Agreement to goods exported by Israel to the EU and certified as being of Israeli origin but which prove to originate in the occupied West Bank.The German Court stayed its proceedings and referred the case to the ECJ for a preliminary ruling. because none of the parties to the EC-Israel Agreement is in the best position to give a unilateral interpretation of the legal as opposed to factual question. the customs authorities of the importing EU 89 90 OJ C 285/26 of 8 November 2008. 77-82). in the opinion of the AG.90 Thus. at paras. such mutual recognition is not absolute (see further. C-218/83 Les Rapides Savoyards and Others [1984] ECR 3105. at para. however. 4. in principle. advising the ECJ to adopt an interpretation by which the goods in question would not be entitled to preferential treatment under either of the two relevant Association Agreements. at para. Opinion of AG Bot. the customs authorities of the state of import may not unilaterally declare invalid a EUR. Advocate General Bot delivered his Opinion. The AG referred to the ECJ‟s own jurisprudence. at para. 5. 92 Opinion of AG Bot. according to the AG. 4. 21 . with verifying the factual accuracy of information relating to the products‟ origin (since their origin is known and not contested) but with ascertaining the territorial scope of the EC-Israel Agreement. 85-86. as analyzed by the Opinion of AG Bot. cited above fn.93 Thus. namely what is the Agreement‟s territorial scope. 26. according to which “…origin is established by the authorities of the exporting country…”. However.91 The Brita case was not concerned.92 The strong presumption that exists with respect to verification of the accuracy of the facts by the customs authorities of the exporting state cannot apply in circumstances such as those in hand. 75. The first question addressed by the AG was whether the customs authorities of the importing EU Member State (Germany) were bound by the result of the subsequent verification carried out by the customs authorities of the exporting state (Israel). 93 Ibid. cited above fn..2 Opinion of Advocate General Bot On 29 October 2009. 4. 94.

pertaining to the more general question relating to the territorial scope of the Agreement.Member State are not bound by the result of the subsequent verification carried out by the Israeli customs authorities.97 This interpretation.. Moreover. 100 Ibid.95 The AG then addressed a third question. which is accepted by virtually the entire international community and which.. the above analysis of the 2004 technical arrangement leads one to conclude 94 95 Ibid. The AG further established that the conclusion of the EC-PLO Agreement with a view to granting a tariff preference to products originating in the West Bank and the Gaza Strip indicated that those products were not entitled to such preference under the EC-Israel Agreement. see ibid.. 4. The appropriate venue for solving the dispute was instead the Association Council. the West Bank and the Gaza Strip do not form part of that territory. The AG proceeded to hold that the Customs Cooperation Committee mechanism was intended to check the factual accuracy of the information relating to the origin of a product and not for disputes. according to the AG. at paras.99 must in his view lead to the conclusion that such products cannot benefit from the EC-Israel Agreement.. 98 For the analysis of these resolutions. 97 See the Opinion of AG Bot. at para. such as that in question.100 The EC-PLO Agreement was designed to promote the flow of trade from and to the West Bank and the Gaza Strip with a view to contributing to the development of these territories. This objective would be frustrated should products originating in the West Bank and the Gaza Strip be regarded as products of Israeli origin and be entitled to preferential treatment under the EC-Israel Agreement. at para. 111. 121-125. cited above fn. namely whether goods certified by the Israeli customs authorities as being of Israeli origin but which prove to originate in the West Bank are entitled to preferential treatment under either of the two Agreements. 96 See Article 83 of the EC-Israel Agreement. under public international law. was adopted by the UN Security Council98 and by the Council of the EU. at paras. 99 Ibid.94 The German customs authorities were not thus under an obligation to submit the dispute to the Customs Cooperation Committee. See Article 75(1) of the EC-Israel Association Agreement: “[e]ach of the parties may refer to the Association Council any dispute relating to the application or interpretation of this Agreement”. He noted that the EC-Israel Agreement applies “…to the territory of the State of Israel”96 and that. 99-100. at para. 22 . 109. 113 where the AG analyzes various EU sources. The AG answered that question in the negative.

It would also negate the objective of encouraging trade with those territories103 and would be inconsistent with the Israeli-Palestinian Agreement under which the Palestinians must be able to export their produce without restriction on the basis of certificates of origin issued by the Palestinian authorities. 23 . 104 Ibid.. 138. 4.1 certificates for such products lies with the customs authorities of the West Bank and the Gaza Strip. 128-129.105 In the Cypriot dispute. at paras.102 Such a course of action would ultimately undermine the efforts made to set up a system of administrative cooperation between the customs authorities of the EU Member States and those of the West Bank and the Gaza Strip. in order to benefit from the preferential treatment established by the ECPLO Agreement. at para.. holding that no entity other than the authorities of the Republic of Cyprus may issue a certificate of origin pertaining to products exported from any part of Cyprus.106 The AG inferred from that judgment 101 102 Ibid. 1. 130-131. under which responsibility for issuing EUR.. at paras.104 Such a solution was found by the AG also to be in direct conflict with the ECJ jurisprudence pertaining to the “comparable” case of the 1972 Agreement establishing an association between the European Economic Community and the Republic of Cyprus. analyzing C-432/92 Anastasiou and Others [1994] ECR I-3087. at paras. 106 See the Opinion of AG Bot. the competent authorities responsible for issuing certificates for such products are the Palestinian authorities and hence. p..101 The solution under which such certificates of origin would be issued by the Israeli authorities by virtue of the EC-PLO Agreement is also incompatible with the EC-PLO Agreement. exporters situated in the northern part of Cyprus exported their products to the United Kingdom with an accompanying certificate of origin issued by the occupying authorities of Northern Cyprus. Ibid.that its intention was to draw a distinction between goods originating in Israel (which are entitled to preferential treatment) and those from the West Bank settlements (which are not so entitled). 105 Agreement annexed to Council Regulation (EEC) No 1246/73 of 14 May 1973 (OJ 1973 L 133. In his opinion. 132-138. relying on Article 16(4) of the EC-PLO Protocol 3. at para. The AG also resolutely dismissed any solution under which a certificate of origin would be issued for the products by the Israeli authorities based on the EC-PLO Agreement. 103 Ibid. the certificates of origin must be issued only by the Palestinian customs authorities. cited above fn. The ECJ refused to recognize the legal force of such certificates. 127.

the answer to that question closely depends on the interpretation of the territorial scope of the EC-Israeli Agreement in accordance with its Article 83 (the clause pertaining to territorial applicability).that certificates issued by authorities other than those designated by name in the relevant association agreement cannot be accepted as valid. The first was whether the customs authorities of the importing state are bound by the reply given by the customs authorities of the exporting state. 108 Ibid.107 An additional question addressed by the ECJ was whether there is an obligation to bring the dispute before the Customs Cooperation Committee. in turn. at paras. 109 Ibid. at paras. adopting to a large extent the reasoning of the AG. The Advocate General thus invited the Court to rule that goods certified by the Israeli customs authorities as being of Israeli origin but which prove to originate in the occupied territories. 71-73. Such interpretation is to be conducted.108 The main question addressed by the ECJ was whether the customs authorities of the importing Member State may refuse to grant the preferential treatment provided for under the EC-Israel Association Agreement where the goods in question originate in the West Bank. legal determination of the Agreement‟s territorial scope. by the international law of treaties. instead. including. are not entitled to preferential treatment under either of the two Association Agreements. 109 Article 31 of the Vienna Convention directs the Court to interpret Article 83 of the EC-Israel 107 Judgment of the Court in Case C-386/08. bring that question before the Association Council.. In the ECJ‟s view. 39-44. more specifically the West Bank. Each of the contracting parties may. The ECJ. answered that question in the negative. 5.3 The Judgment of the ECJ The ECJ distilled four interrelated questions from the referring German Court. in particular. the Vienna Convention on the Law of Treaties. the Court concluded that the question at issue does not concern the technical interpretation of the EC-Israel Protocol. at paras. Relying again on the reasoning of the AG. Thus the customs authorities of the importing state are not obliged to refer the dispute to the Customs Cooperation Committee. but the broader. 65-66. 24 . relying on Article 32(6) of the EC-Israel Protocol..

52. The two Association Agreements were concluded for the benefit of the State of Israel and of the Palestinian Authority of the West Bank and the Gaza Strip. or confer any rights. and of whether proof of origin falls to be issued by the 110 Ibid..110 The two Agreements and Protocols thus clearly imply that the two respective “customs authorities of the exporting [state]” have exclusive competence – within their territorial jurisdiction – to issue certificates of origin. 112 Ibid. under which the importing state‟s authorities could make an “elective determination”. at para. at paras. The two Protocols annexed to the two Agreements provide in identical terms that the invoice declaration required in order to be allowed preferential treatment is to be made out by an exporter who has been approved by the “customs authorities of the exporting [state]”.111 Thus to construe Article 83 of the EC-Israel Agreement as meaning that the Israeli customs authorities have competence in respect of products originating in the West Bank would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the EC-PLO Protocol..Agreement in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the Association Agreement‟s object and purpose. would be contrary to the principle of pacta tertiis nec nocent nec prosunt. 113 Ibid. relying on Articles 22(1)(a) and 23(1) of the EC-Israel Protocol and Articles 20(1)(a) and 21(1) of the EC-PLO Protocol.113 In concluding its judgment. granting preferential treatment on the basis of the declarations made by the Israeli authorities while leaving open the questions of which of the two Agreements applies. at paras. which is enshrined in Article 34 of the Vienna Convention. 46-50.. raised by the referring Court. 25 . on third states). respectively. In that respect. 111 Ibid. including the general principle of pacta tertiis nec nocent nec prosunt (Treaties do not impose any obligations. the effect of which would be to create an obligation for a third party without its consent. account is to be taken of any relevant rules of international law applicable in the relations between the parties. if any. 50-52. the ECJ dismissed the possibility.112 Thus Article 83 must be interpreted as meaning that products originating in the West Bank do not fall within the territorial scope of the EC-Israel Agreement and that they do not qualify for preferential treatment under that Agreement. Such an interpretation. at paras. 52-54..

with respect to the 1972 EECCyprus Agreement. 55-58. Ibid. 26 . the requirement of valid proof of origin issued by the competent authority cannot be considered to be a mere formality that may be overlooked simply if the place of origin is established by means of other evidence.Israeli authorities or by the Palestinian authorities. outlined above.. Elective determination is also inconsistent with the ECJ‟s own jurisprudence. referring to C-432/92 Anastasiou and Others. Furthermore. fn.. at para. at paras. which would have left open the questions of which of the two Agreements applies and of whether proof of origin falls to be issued by the Israeli or by the Palestinian authorities. at pp. 37-41.115 The Court thus concluded that the German customs authorities could refuse to grant preferential treatment as provided for under the EC-Israel Agreement on the grounds that the goods in question originated in the West Bank. 57.114 According to the ECJ. 114 115 Ibid. 103. these authorities may not make an elective determination.

121 The EC-Israel Agreement is. 1. Hirsch treats that approach as the “political-sovereignty” approach. which explicitly subjected itself to the GATT/WTO trade regime. at pp. Hirsch. Hauswaldt. 120 Ibid. which is recognized by the GATT/WTO regime 118 is that trade agreements are designed to promote free trade rather than to solve political and legal disputes. Hirsch. Compare with C. 580-584. who raises that possibility but. the ECJ was faced in the Brita proceedings with two possible approaches.1 Trade Law Versus Public International Law? According to the literature on rules of origin pertaining to disputed territories. Which of the two approaches is more suitable to the dispute in hand? Some writers such as Moshe Hirsch have advised the EU to adopt the trade-practical approach. on the basis of his analysis. 578-579. cited above fn. arguing that it can circumvent the contested political questions involved and save free trade agreements from falling hostage to political disputes. a trade agreement. 610. Under that approach. 1. at p. at p. 1. Analysis 6. 1.120 which ignores the de facto control of the disputed territory and focuses instead on the de jure legality. Hirsch. M. Hirsch. cited above fn.6. cited above fn.. see M. at pp.119 The second approach is the legal-sovereign approach. 588-590. 121 M. 122 See Article 6 of the Association Agreement and the analysis of M. seeking the entity which effectively controls that area and which is internationally responsible for it. 1.116 The first is the trade-practical approach. cited above fn. Hirsch. The entity in control would be the entity of origin and the goods in question would be considered its goods.117 The underlining assumption of that approach. dismisses it. the entity identified under international law as the appropriate sovereign of that territory would also be the entity of origin. 577. 1. 1.. at p. 119 Ibid. 27 . The underlying assumption is that trade agreements are not trade-purist and hence are to be subject to the rules of public international law. 118 See Article XXVI (5) (a) of the GATT. cited above fn. That approach ignores the issue of de jure entitlement of the disputed area under public international law and focuses instead on its de facto control. after all. as analyzed by M.122 116 117 For extensive analysis. See also C. sovereignty and recognition. Hauswaldt. at pp. cited above fn. 578. cited above fn. at pp. 578-579.

at paras. annexation and recognized borders and sovereignty. the ECJ did not ascribe any legal meaning to Israel‟s de facto control of the settlements or of Area C and relied instead on international law. Like the AG. 109 and 111. albeit in an implicit and formalistic manner. at para. as the AG did. particularly the observance of human rights and democracy. 113. The AG ignored the issue of Israel‟s de facto control of the settlements and its overall responsibility for them. 127 Ibid. The implicit adoption of the legal-sovereign approach led the ECJ to conclude that the German authorities were not bound by the verification procedure conducted by the Israeli authorities. see the Opinion of AG Bot. and that the goods in question were not Israeli and therefore not entitled to preferential treatment. Yet. the Court relied on the more abstract and politically-detached principle of pacta tertiis nec nocent nec prosunt as an interpretive tool to assist it in understanding the Agreement‟s territorial scope. Instead. 112. 110. under which both parties view the West Bank and the Gaza Strip as a single territorial unit. at para. at para. in reaching his conclusion that the goods in question could not be regarded as originating in Israel. at para. he relied in unequivocal terms on UN resolutions pertaining to Israel‟s borders. 28 . he placed heavy emphasis on Palestinian legal rights under the Israeli-PLO accords and on Israel‟s recognized borders under international law. 115. a different path. 4. however. which form the very basis of the Association”.The AG and the ECJ in Brita chose. that they were not required to submit the dispute to the Customs Cooperation Committee. 125 and on the Israeli-PLO Agreement. relying on the Preamble to the EC-Israel Agreement which states that “Considering the importance which the Parties attach to the principle of economic freedom and to the principles of the United Nations Charter. In that context.126 This led the AG to argue that “…the Court cannot but conclude…that the territories of the West Bank and the Gaza Strip do not form part of the territory of the State of Israel”127 and hence “it seems difficult to maintain” that a West Bank product “is entitled to preferential treatment under the EC-Israel Agreement”.123 on the ECIsrael Agreement and the importance it attaches to international law. 125 Ibid... instead of utilizing international law in order to directly confront the contested legal issues pertaining to the Israeli-Palestinian conflict and occupation. 114. 126 Ibid.. 128 Ibid. 123 For the analysis of these resolutions and other sources. 124 Ibid.. as well as for other areas in the West Bank.. relying on Article XI(1) of the Israeli-Palestinian Agreement. cited above fn. at para.124 on the EU‟s legal position regarding the borders of the State of Israel.128 The ECJ also relied on the legal-sovereign approach. See also Article 2 of that Agreement.

but it would also have led to treating settlements‟ products as Israeli. cited above fn. despite the fact that the Palestinian Authority had at that time only partial control of that territory. 133 For analysis.132 According to this approach. as well as the provisions of the Agreement itself. see http://www.130 In these circumstances. Tocci. 1. see Tocci. Moreover. the adoption of the legal-sovereign approach is consistent in some respects with the spirit of the EC-Israeli Agreement itself.htm. 130 For analysis of that reliance in the EU-Israeli context. 597. It must be recalled in this context that the wording of the EC-PLO Agreement applies the Agreement to the whole of the West Bank and Gaza Strip. the EEC/EC/EU has consistently stressed that the Palestinian people have the right to self-determination. cited above fn. see http://www. see G. the Court could not adopt the trade-practical approach. which includes their right to freely govern their own territory. at p. For analysis of the EU‟s position. Harpaz. 29 .il/process/docs/venice_eng. as of 1980.Moreover.131 In 1999.org/archives/pages/actualites/agitprop/maison08. which were defined as an “essential element” of the Agreement. cited above fn. an outcome tantamount to rewarding the State of Israel for its settlement policy in the West Bank. shall be based on respect for human rights and democratic principles.129 The legal-sovereign approach is also consistent with the overall tendency of the EU‟s political organs to see free trade agreements as instruments designed to promote political and legal aims.knesset.htm. the construction of Israeli settlements in the West Bank is both illegal and counterproductive for the achievement of peace. see N. which guides their internal and international policy and constitutes an essential element of this Agreement”. the Agreements being designed to emphasize the legal and territorial separateness of the Palestinian people and the Palestinian territories. the EU reinforced that position in the Berlin Declaration by stating that the Palestinians are entitled to exercise their rights of self-determination in the form of independent statehood.penelopes.133 This same approach led the EU to conclude two separate Agreements during 1995-1997.gov. which states that its purposes are not only trade-promotion but political-legal ones. 134 Thus. The Agreement actually subordinates all trade aspects provided in it to an overriding commitment to human rights and democratic principles. 84. one with the State of Israel and one with the PLO. 132 For the full text of the 1999 Berlin Declaration. 84. cited above fn. 134 C. 2. Hauswaldt. Such an approach would have also allowed Israel to utilize the EC-Israel Agreement in order to blur the physical and legal dividing 129 Article 2 of the Agreement states that “Relations between the Parties. the adoption of the trade-practical approach would not only run counter to the letter and spirit of the EC-PLO Agreement. 131 For the 1980 EEC Venice Declaration of 1980.

Justice 9 July 2004. the avoidance of the trade-practical approach and the implicit adoption of the legal-sovereign approach was inevitable. The EEC-Cyprus Trade Agreement was construed by the ECJ in accordance with the legal-sovereignty approach. at p. However. Int‟l Ct. cited above fn. The adoption of the trade-practical approach would have brought about precisely that outcome. In sum.137 Thus according to the ICJ. Finally. the adoption of the trade-practical approach would have been in conflict with the jurisprudence of the International Court of Justice (ICJ). The choice of the legal-sovereign approach necessitated. see Guy Harpaz. Cambridge Law Journal 65. 31 . and the same Court could not in legal terms justifiably adopt a conflicting trade-practical perspective in the Israeli-Palestinian context.135 The choice of the legal-sovereign approach was thus inescapable. Yet another reason that rendered the legal-sovereign approach the only feasible judicial choice was the Court‟s own jurisprudence. placing the ECJ in conflict with the ICJ Opinion. although formally detached from political considerations. 43 ILM 1009 (2004). The Court. 1. “„The Israeli Supreme Court in Search of Universal Legitimacy”. which deals with inconsistencies 135 136 C. which would have resulted in Israel treating the West Bank as an appendix of Israel. as a corollary. the ICJ delivered its Advisory Opinion regarding the construction by Israel of a wall in the West Bank (the ICJ Opinion). could not have supported such an outcome. 1 (2006): 7. 610. 137 For a comparison between the Advisory Opinion and the position of the Israeli Supreme Court on that issue.lines between Israel and Palestine (which the EU supported). and consistency within the ECJ‟s own jurisprudence. In 2004. that Israel‟s entire settlement campaign in the West Bank was illegal. Such a judicial choice ensured consistency between the EU‟s external trade policies and its common foreign policy in the EU-Israel-Palestinian context. As stated above. no. Hauswaldt. was such reliance pursued by the Court in a commendable manner? The next section. a heavy reliance on international law.136 The ICJ implied that such a construction was illegal under international law. and that Israel could not justify one legal wrong (the construction of the wall) on the basis of another legal wrong (the settlements). the Court‟s settled jurisprudence is that a trade agreement concluded by the EU with a sovereign can only be relied upon by that sovereign and not by any political entity which occupied parts of the sovereign‟s territory. Israel could not benefit from its own legal wrongdoings in the West Bank.

Journal of Common Market Studies 40. Journal of Common Market Studies 40. been modest.145 Suffice it to say that legitimacy may be seen as a normative belief that a rule or institution should be obeyed. in Thomas Banchoff and Mitchell P. at p. and which enable the EU to obtain what it wishes at times through attraction.138 thereby extending its sphere of economic and normative influence139 and increasing the geographical scope of its “peace community”. at p. 140 Lily Gardner-Feldman. not due to coercion or self-interest.140 For that purpose.. 252. as evident in the Lisbon Treaty. 1 (2007): 89. 141 Ibid. 6. Legitimacy and the European Union: The Contested Polity (London: Routledge. 31 . 2004). the EU has positioned itself as a Normative Power. Nicolaïdes and R. K. due inter alia to the lack of external legitimacy. 7583. which are heavily based on the ethos of international law. 2 (2002): 235. are central to the EU‟s internal and external raison d’être. will try to provide an answer. coercion or payment. no. 139 See Ian Manners. grounding its integration agenda in a distinctive normative foundation and exporting that normative “European Model” elsewhere.143 These EU normative aspirations.. Richard Whitman. 1999). especially in the Middle East. “Reconciliation and Legitimacy: Foreign Relations and Enlargement of the European Union”. however. The concept of legitimacy has been extensively examined in the EU context. „“This is my EUtopia. Martin‟s Press.2 Inconsistencies as Manifestations of Double Standards? Since the early 1990s the EU has been striving to export its successful model of peace – democracy and democratization through trade – to other parts of the world..144 The achievements of the EU on the normative front have. From Civilian Power to Superpower?: The International Identity of the European Union (New York: St. no. ibid. 4 (2002): 768. “Normative Power Europe and the Problem of a Legitimacy Deficit: An Israeli Perspective”. the EU relies on “soft power” instruments. Smith.. 143 Ibid. but due to its inherent 138 Kalypso Nicolaïdis and Robert Howse. 77. 142 Joseph Nye. 145 For analysis. Howse. Soft Power: The Means to Success in World Politics (Boston: Public Affairs. international institutions and multilateralism. as opposed to force. European Foreign Affairs Review 21. eds. no. human rights.‟: Narrative as Power”. “Normative Power Europe: A Contradiction in Terms?”..141 As a Normative Power. 144 See Articles 3 and 21 of the consolidated version of the Treaty on European Union. 1998).142 which rest on cultural and political values and foreign policies.arising from the ECJ‟s judgment as manifestations of double standards. 77. see Guy Harpaz.

ibid. 151 For analysis of this practice. Ian Hurd. “Legitimacy and Authority in International Politics”. It must find the optimal balance between realpolitik and morals. cited above fn.normative strength. norms and international legitimacy. “The Cyprus Question before the European Court of Justice”. no. be remembered that the Taiwanese case is not entirely analogous to the 146 Jens Steffek. 381 and 387. beliefs and definitions. as Nye postulates. Suffice it to say that external pressures exerted by the EU should be compatible with its own fundamental principles and with its own raison d’être. 10-11. 2 (2003): 252.. How can the EU attain such legitimacy? Providing a comprehensive answer to this question lies beyond the scope of this paper. 142. 579-580. 1. no. it must equip itself not only with economic might but also with international legitimacy. European Journal of International Relations 9.150 Thus the judgment is judicially consistent. Nye.146 being perceived as desirable. 103. Hirsch. proper or appropriate within a socially constructed system of norms. cited above fn. 747-748. 148 J.147 Thus. at pp. where the ECJ found that “only the Cypriot State is the recognized Republic of Cyprus”. 6. Similarly. International Organization 53. Yet the approach adopted by the Court vis-à-vis Israel (and Cyprus) is in conflict with the EU‟s position. at pp. pursued by its political organs. 150 Case C-432/92..151 It must. while the EU‟s political organs do not recognize its sovereignty separately from China (the „One China Policy‟). however. The EU must adopt policies consistently and implement them in the same manner. see Stefan Talmon. “The Legitimation of International Governance: A Discourse Approach”. Civilian. 3 (1995): 574. See also Talmon. With respect to Taiwan. 1990). at p. 31. For further analysis. values. fn. pressures exerted by the EU on one external player should be consistent with pressures exerted on other external players. regarding goods exported from Taiwan and Western Sahara. 2 (1999): 379. “Managing Legitimacy: Strategic and Institutional Approaches”. The Power of Legitimacy among Nations (New York: Oxford University Press. Academy of Management Review 20.148 The EU should thus strive to acquire the status of a credible and legitimate actor. Admittedly. Thomas Franck.149 But can the EU‟s approach towards the goods exported by Israel from the West Bank be regarded as meeting these requirements? It is submitted that it cannot. the legal-sovereign approach adopted in Brita reflects that adopted in respect of Cyprus. on legitimacy. no. thus implementing the trade-practical approach in this regard. if the EU wishes to act as a civilian. especially para. European Journal of International Law 12 (2001): 727. “soft” superpower. normative power rests to a certain degree. see M. 149 Ibid. they do not disqualify the use of Taiwanese certificates of origin for goods imported from Taiwan. 147 Mark Suchman. 32 .

2009). UN Doc. University of Pretoria. the ICJ stated in unequivocal terms that the Palestinian people have the right to self-determination. see B7-0247/2009 (16 December. Case Western Reserve Journal of International Law 9. “Sovereignty over Unoccupied Territories: The Western Sahara Decision”. 12. Indigenous Law Bulletin 4. no. Marco Balboni from the University of Bologna.arso. Both Israel and Morocco are the objects of critical European Parliament154 and Security Council155 resolutions urging them to withdraw from territories occupied by them. for analysis. 16 October 1975. Okere.157 Thus.152 Such relevance is derived from the similar regulation of bilateral relations (EU-Israeli and EU-Moroccan Association Agreement) as well as the resemblance between the EU-Israel-West Bank and the EU-Morocco-West Sahara scenarios. of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory”. 6 November 1975. For the most recent EU Parliament Resolution on the subject. see M.org/ConferencePretoria2008comm. cited above fn. Endgame in the Western Sahara: What Future for Africa’s Last Colony? (London: Zed. 157 Ibid.153 Both Israel and Morocco are being accused by the international community of long-standing occupation (West Bank and Western Sahara respectively) in breach of the right of self-determination (the Palestinians and the Sahrawi population respectively). Western Sahara: Anatomy of a Stalemate (London: Lynne Rienner.org/doc/RESOLUTION/GEN/NR0/782/27/IMG/NR078227. Similarly. In 1975. Hirsch.Israeli one due to its different characteristics and because of the fact that.. 1. in 2004. Moreover. Harvard International Law Journal 17. “The Decolonisation Process in Western Sahara”. at Paragraph 162: “The Court has not found legal ties of such a nature as might affect the application of resolution 1514 in the decolonization of Western Sahara and. 154 See the words of Prof. in contrast to EU-Israeli trade. see Obinna B. 156 ICJ Advisory Opinion on Western Sahara. “The International Court of Justice: Advisory Opinion on the Western Sahara”.un. p. 2005). the ICJ could not find “any legal ties of territorial sovereignty between Western Sahara and the Moroccan State that might affect the principle of self-determination through the free and genuine expression of the will of the peoples of the territory”156 and asserted “the principle of self-determination through the free and genuine expression of the will of the peoples of the territory”. 23 (1999): 7. S/Res/380. International and Comparative Law Quarterly 28 (1979): 296. 155 United Nations Security Council Resolution 380. Toby Shelley. The ICJ has also adjudicated with respect to both scenarios. speaking at the conference on “Multilateralism and International Law with Western Sahara as a Case Study”. 153 152 33 . see Kamal Fadel. no. 1 (1976): 609. Erik Jensen. ICJ Reports 1975. the EU concluded Association Agreements with both For an early. Moshe Smith. For background. the local Sahrawi (Western Sahara indigenous) population was entitled to selfdetermination through the referendum planned at that time by Spain.pdf?OpenElement. available at: http://www.htm. in particular. “The Western Sahara Case”. at paragraph 190. at p. EU-Taiwan trade is not regulated by an Association Agreement. The case of Morocco-Western Sahara is more relevant to our analysis (despite the fact that it did not reach the ECJ). 4-5 December 2008. Available at: http://daccess-ddsny. no. 580. 2004). 2 (1977): 135. initial analysis. Mark Janis.

I would have thought that it was obvious that an agreement of this kind that does not make a distinction between the waters adjacent to Western Sahara. 588. see Enrico Milano. thereby allowing Morocco trade benefits under its Association Agreement with the EU with respect to occupied Western Sahara. Corell concludes: “Under all circumstances. cited above fn. see Ambassador Hans Corell. Hans Corell.pdf. would violate international law”. 158 With respect to Israel. at: http://www.eu/LexUriServ/LexUriServ. “„The New Fisheries Partnership Agreement between the EC and the Kingdom of Morocco: Fishing Too Far South?”. 160 Ibid.php?cat=128&art=975. 22 May 2006.. the EU treats the two scenarios differently. the trade-practical approach is applied by the EU‟s political organs to the term “territory of Morocco”. initial analysis. Articles 2(a). 11.159 as part of the EU‟s Common Fisheries Policy (CFP). namely “to the territory of the State of Israel” and “to the territory of the Kingdom of Morocco”. Cornell held that “[it is]…obvious that an agreement…that does not make a distinction between the waters adjacent to Western Sahara and the waters adjacent to the territory of Morocco would violate international law”. adopted by Council Regulation EC No 764/2006 of 22 May 2006 (OJ L141). 162 For the full document. EU vessels were granted access to fish resources “falling within the sovereignty or jurisdiction of the Kingdom of Morocco”. available at: http://eng. available at: http://www. “Morocco-EU Fisheries Partnership Agreement”.se/res/SelectedMaterial/20081205pretoriawesternsahara1. and the waters adjacent to the territory of Morocco. thereby denying Israel any trade benefits pertaining to the West Bank. Under the agreement.160 Thus the EU has actively concluded a tailor-made trade agreement for the purpose of applying it to territories occupied by Morocco. former UN legal chief.do?uri=OJ:L:2006:141:0004:0037:EN:PDF. criticized this position in an interview following the signing of the Agreement. 34 .Israel and Morocco under the same aegis (the Barcelona Process) and in the same year (1995). Even worse. Hirsch. the legal-sovereign approach was applied.gees. The Agreement. covering the period from February 2007 to February 2011. is available at: http://eurlex.havc. defended the agreement and held in 158 159 For an early. see M. which was defined as “one of the major fisheries agreements for the EC”.org. at p.wsrw.org/index. 161 Swedish Radio. Yet with respect to Morocco. “The Legality of Exploring and Exploiting Natural Resources in Western Sahara”. in which he concluded that “… [The] protest against the Agreement is consistent with the opinion that I expressed in a statement to the Security Council”161. In his statement. 1. Yet despite these comparable attributes. EU Fisheries Commissioner.europa. Anuario Español de Derecho Internacional (2006). in 2006. In both cases. For analysis.162 Joe Borg. the EU concluded the EU-Morocco Fisheries Agreement. the territorial applicability of the Agreement was left undefined. first by the EU political institutions and subsequently by the ECJ to the term “territory of Israel”.

166 For an up-to-date list of countries formally recognizing the Sahrawi Arab Democratic Republic. Available at: http://www.165 As explained below. “The European Union and the Western Sahara Conflict: Managing the Colonial Heritage”. 9 March 2006. So.do?pubRef=//EP//NONSGML+REPORT+A6-2006-0163+0+DOC+PDF+V0//EN. 10-11. In 1976. see Jordi Vaquer Fanes. contrary to the EU position adopted in relation to Israel and the West Bank. a violent rebel movement established to promote independence for Western Sahara. have undertaken a more careful approach towards the subject. On the other hand. A legal opinion that was written by the legal service of the European Parliament in this context stated that “[in the Agreement]…the International legal status quo is accepted and an effort is made not to intervene in the dispute and to uphold International law”. 164 It is submitted that. Thus.northern states have constantly been raising doubts over the legality of the EU-Morocco relationship and initiating the Parliament and Commission resolutions discussed above. 165 For analysis. 164 Legal Opinion of the Legal Service of the European Parliament. representing the interests of the people of Western Sahara. claiming the 163 “Commission under Fire over Morocco Fisheries Agreement”. Doc. 144. mostly Spain and France. eds. 20 February 2006. see 35 . at pp. The EU‟s reliance on international law in order to justify such conduct seems highly unconvincing. Another possible explanation is the lack of a strong Sahrawi political movement. SJ-0085/06.europa. different EU Member States hold profoundly diverse positions towards the Western Sahara problem . the EU was willing to utilize legal means that would adversely affect the Sahrawi people and sacrifice its noble principles for the sake of advancing its fisheries sector and satisfying the interests of important EU Member States that maintain.com/9/21092. European Foreign Policy in an Evolving International System: The Road towards Convergence (Houndmills: Macmillan. for political and economic interests. 2007). the abovementioned Polisario Front. a partially166 recognized state. the opinion that was delivered by Corell). in the Moroccan context. the Commission proposal is in conformity with the legal opinion of the United Nations issued in January 2002”163 (i. declared the “Sahrawi Arab Democratic Republic”..europarl.e. in Nicola Casarini and Costanza Musu. EUobserver. available at: http://euobserver. The absence of such a political movement has caused a persistent lack of worldwide interest in the Sahrawi struggle for independence. close relations with Morocco. the EU implicitly recognizes Morocco‟s de facto control over these territories.eu/sides/getDoc.an interview that “Morocco is the de facto administrator of Western Sahara. by providing benefits to EU vessels fishing in the territorial waters of Western Sahara under an agreement concluded with Morocco. southern states.

29. This is particularly applicable to Israel. see “Security Council Report” project. was seated as an Organization of African Unity (OAU) member in 1984. Indeed. UN Doc. no. besides the regular yearly renewal of the MINURSO mandate. “Governance beyond the NationState: Reflections on the Democratic Deficit of the European Union”. The EU‟s normative agenda should instead be applied to the fullest extent possible in a consistent manner. Frank Decker.org/doc/RESOLUTION/GEN/NR0/541/48/IMG/NR054148. no.pdf?OpenElement.entire territory of Western Sahara as its own. Harpaz.169 This situation may be considered as one of the explanations for the adoption of the practical approach in this scenario. derogations that are being made in order to profit from short-term political-economic gains.org/site/c.securitycouncilreport. 170 For analysis. available at: http://daccess-ddsny. causing Morocco to withdraw its membership in the Organization. no discussions at all were held on the subject between 1991 and 2003. 2 (2002): 256-272. However. 20. 168 For statistics. 167 United Nations Security Council Resolutions 621.un. Ever since the 1991 establishment of the UN Mission for the Referendum in Western Sahara.09.04.2833281. a period in which the Security Council has rendered as many as fourteen resolutions on the “situation in the occupied Palestinian territories”. 142.170 Indeed. Journal of European Public Policy 9. a sub-narrative that is prevalent in Israeli discourse is that EU policies towards Israel are reflective of European double http://www.glKWLeMTIsG/b. inconsistent and politically-economically motivated manner.worldstatesmen. that was evidently not enough. The EU should thus cease its derogations from international legal norms and. S/Res/621 and 690.glKWLeMTIsG/b.org/Western_Sahara. UN Doc. The EU already suffers in the State of Israel from what may be termed an „external legitimacy deficit‟. Journal of Common Market Studies 44. Andreas Follesdal and Simon Hix.securitycouncilreport. 3 (2002): 533.1988.org/site/c.html. 169 Ibid. S/Res/690.168 In fact. see G. The Sahrawi Arab Democratic Republic. from its own norms. 167 the Security Council has not discussed the issue of Western Sahara. at http://www. 36 . cited above fn. The willingness of the EU political organs to pursue an approach vis-à-vis Morocco which is inconsistent with the EU‟s fundamental norms and with the jurisprudence of its judicial organ might erode the credibility. more importantly. legitimacy and effet utile of Normative Power Europe. represented by a government-in-exile. the EU cannot obtain the international legitimacy required for the purpose of serving as a Normative Power if it construes and applies international law and protects collective human rights in such an instrumental.. at http://www. “Why There Is a Democratic Deficit in the EU: A Response to Majone and Moravcsik”.2833281.1991.

37 . 101-102.171 The double standards applied in relation to Israel and Morocco are only likely to reinforce that perception. in Emanuel Adler and Michael Barnett. cited above fn. cited above fn.. For analysis. Harpaz. 1. Hirsch. The EU position in the dispute can be perceived in Israel as legitimate only if the EU pursues the same line of action vis-à-vis goods exported from other territories occupied by other countries. “Insecurity. 1998).172 Only then may the EU be seen in Israel as a “silent discipline power on the near abroad”. Security and Asecurity in the West European Non-War Community”. 142. 99. eds.standards. Security Communities (Cambridge: Cambridge University Press. at pp. 173 Ole Weaver. see G.173 171 172 For analysis of these arguments. thereby eroding the legitimacy of the EU as a Normative Power and preventing it from acting in such a manner. see M.

First.7. The paper advanced the argument that although the judgment‟s „bottom line‟ may be considered as correct in legal terms. the paper outlined the EU‟s treatment of Western Saharan goods. has failed to act according to the standards set in the Israeli scenario. 38 . thus practicing double standards and eroding the credibility of the EU as a Normative Power. A careful examination revealed that the ECJ‟s and AG‟s reliance on international law was in places pursued in an ill-founded (AG Bot) and one-dimensional. Summary and Conclusions The paper argued that the EU political and judicial approach with respect to goods exported by Israel from the West Bank is inconsistent with the EU‟s own practice in the context of Western Sahara. the paper analyzed the judicial solution offered by the ECJ in the Brita case. Second. the paper holds that the EU. and that such inconsistency erodes the credibility of the EU as a Normative Power. and found it to be opposed to the EU position adopted in relation to Israel and the West Bank. with respect to the contested issues pertaining to the legal status of Israel‟s exports from the West Bank. regarding itself as a „Normative Power‟ relying on „soft power‟ instruments based on the ethos of international law and human rights. After outlining the historical aspects of the EU‟s relations with both the State of Israel and the Kingdom of Morocco. after examining the EU‟s position in the Brita case. Thus. incomplete and selective manner (the ECJ). its reasoning is slender and leaves much to be desired. the paper examined the EU‟s economic cooperation agreements with both the former and the latter in light of its involvement in each one‟s conflict resolution attempts.

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