Hebrew University of Jerusalem European Forum

More than Kin and Less than Kind: The Status of Occupied Territories under the European Unions 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

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 Israels 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 Israels 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 havetaken 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.

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, Africas 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, Moroccos 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 EUs 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--vis Morocco which is inconsistent with the EUs fundamental norms and with the jurisprudence of its judicial organ, erodes, so the paper claims, the credibility and legitimacy of Normative Power Europe.

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.

2. Relations between the European Union and the State of Israel

2.1 History and Origins
For obvious reasons, the relations of Israel and its citizens with Europe were always complex and charged.6 Yet, Israel and the then European Economic Community established diplomatic relations as early as in 1959, in 1975 they concluded their first free trade area agreement,7 and in 1994 the EU announced in Essen, Germany, its willingness to establish special relations with Israel.8 Indeed, in the course of time, Israel succeeded in partially overcoming these difficulties insofar as economic relations were concerned. Regionally, current relations between the parties are governed by the Barcelona Process, launched in 1995 in order to regulate and advance the economic, political and social relations between the EC and its Member States, on the one hand, and the twelve non-EC Mediterranean countries of that time (then including Cyprus and Malta), on the other.9

For analysis, see Ephraim Ahiram and Alfred Tovias, eds., Whither EU-Israeli Relations?: Common and Divergent Interests (Frankfurt am Main: P. Lang, 1995); Moshe Hirsch, Eyal Inbar and Tal Sadeh, The Future Relations between Israel and the European Communities: Some Alternatives (Tel Aviv: Bursi, 1996); Ilan Greilsammer and Joseph H. H. Weiler, eds., Europe and Israel: Troubled Neighbours (Berlin: W. de Gruyter, 1998). 7 For background, see Michael Rom, In the Path of Israels International Commercial Policy: GSP and the European Common Market (Tel Aviv: Ramot, 1998) [Hebrew]; Avi Primor, Israel and the EC, in Alfredo M. Rabello, ed., European Legal Traditions and Israel: Essays on Legal History, Civil Law and Codification, European Law (Jerusalem: Harry and Michael Sacher Institute for Legislative Research and Comparative Law, 1994), 9; Chava Shachor-Landau, Israel and the EC on the Eve of the Maastricht Agreement, in Alfredo M. Rabello, ibid., at 445; Daphna Kapeliuk (1993), A Legal Analysis of the Free Trade Agreement of 1975 between the European Community and the State of Israel, 27 Israel Law Review, 415; Talia Einhorn (1995), The Role of the Israeli Courts in Promoting Free Trade: A Critical Study in View of the EC-Israel FTA, 12 Bar-Ilan Law Studies, 165 [Hebrew]; Inon Dafni (2000), Israel and the European Union: The Current Picture and Expectations for the Future, 27(107) Israel Tax Quarterly, 49 [Hebrew]. 8 See Commission of the European Union, Extracts of the Conclusion of the Presidency of the Essen European Council, 9-10 December, 1994, Bulletin of the European Union, Supplement 2/95: The European Council considers that Israel, on account of its high level of economic development, should enjoy special status in its relations with the European Union, on the basis of reciprocity and common interest. 9 For the Barcelona Process and its implications for Israel, see Commission of the European Communities: Barcelona Declaration adopted at the Euro-Mediterranean Conference, 27-28 November 1995, Barcelona, 28 November 1995, final version. For comment, see Nellie Munin, The EU and Israel: State of the Play (Jerusalem: Ministry of Finance, 2004), 151-161 [Hebrew].

Bilaterally, relations are governed by the 1995 Association Agreement between the EC and its Member States, on the one hand, and the State of Israel, on the other (the Association Agreement).10 Under the Association Agreement, each party granted the other preferential economic, commercial, technological and research status. 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, exempt from custom duties and, in principle, free from quantitative restrictions. Liberalization of trade in agricultural goods, of services and of movement of capital is also regulated under the Association Agreement. The EU is in fact Israels chief trading partner.11 The Association Agreement must not, however, be regarded merely as an economic instrument. It also sets out the basis for, inter alia, cultural, research and political cooperation between the parties.12 For example, the Association Agreement refers to the mutual objective of promoting peace, security and regional cooperation, and to the need to advance stability, prosperity, understanding and tolerance in the Mediterranean. The establishment of close ties with the EU was indeed considered one of Israels greatest diplomatic achievements.13 Yet, the potential of the Essen Declaration, like the Association Agreement itself, has not been fully realized.14 The same applies to the Barcelona Process.15 Even worse, the strategic-political
10

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. For analysis, see especially Munin, ibid., at 145-226; Arie Reich, The Juridicization of International Trade Relations, Northwestern Journal of International Law and Business 17 (1997): 775; Eyal Inbar, Improving Israel-EU Relations: The European Economic Area as a Possible Model, Israel Affairs 5, no. 1 (1999): 109; Tal Sadeh, The European Union and Israel: The Customs Union Alternative, Israel Affairs 5, no. 1 (1999): 87; Alfred Tovias, Mapping Israels Policy Options Regarding Its Future Institutionalized Relations with the EU, CEPS Centre for European Policy Studies (2003); Moshe Hirsch, The 1995 Trade Agreement between the European Communities and Israel: Three Unsolved Issues, European Foreign Affairs Review 1, no. 1 (1996): 87. 11 For Israeli official statistics, see http://www.mof.gov.il/museum/hebrew/wider_europe.pdf. 12 See Commission Staff Working Paper, European Neighborhood Policy, Country Report, Israel [COM(2004)373 final], Brussels, 12.5.2004, SEC(2004) 568: The State of Israel participated in the 4th and 5th Framework Programme for Research and Technological Development. In June 2003 the agreement under which Israel joined the 6th Framework Programme was signed. Israel and the Commission initialed in March 2004 the agreement on Galileo, Europes satellite radio navigation programme. 13 Sasson Sofer, Towards Distant Frontiers: The Course of Israeli Diplomacy, Israel Affairs 10, nos. 1-2 (2004): 7. 14 For an analysis of Israels failure to realize the economic potential in its relations with the EU, see Einhorn, supra note 7. 15 See Country Report, Israel, supra note 12, at 5: Because of its relatively high level of economic development, Israel does not benefit from bilateral financial support under MEDA. However, it is eligible for MEDA funds earmarked for regional cooperation. While initially Israel participated in a

relationship since the Six Day War (1967) has largely been characterized by mutual suspicion and tension.16 Many Israelis view the EU as a hostile player, or in the words of Peters and Dachs, The European Union has become an easy scapegoat in israeli public discourse.17 Indeed, the Israeli media and the political arena often present negative images of the EU, bearing in mind the historical events of the Holocaust that often cause suspicion and revulsion among Israelis. While this external legitimacy deficit the EU suffers from in the State of Israel is not the central issue of this paper, clearly it affects perceptions and requires the EU to act carefully with respect to Israel.

2.2 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).18 UN officials have long maintained that the Israeli occupation of Palestinian territories in the West Bank, East Jerusalem and the Gaza Strip since the Six Day War clashes with the Palestinian aspiration for statehood in these disputed areas.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,20 some of which use force and some, incitement through the media and education. Since the establishment of the State of Israel in 1948 and the creation of the Palestinian refugee problem,21 Europe has attempted to maintain its role as a neutral player in the region, although its overall impact has been minimal. During much of

number of projects, following the outbreak of the Second Intifada it has become increasingly difficult for the country to find partners in the Mediterranean area. 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), in the Euro-Med audiovisual and Euro-Med heritage programs. Regarding higher education, Israel is eligible for participation in the Erasmus and Tempus programs. 16 See Rosemary Hollis, The Politics of Israeli-European Economic Relations, Israel Affairs 1, no. 1 (1994): 118; Bianca Khnel, ed., Troubled Waters: Europe and Its Relations with the United States and Israel (Jerusalem: Institute for European Studies, 2003). 17 Joel Peters and Gisela Dachs, Israel and Europe, the Troubled Relationship: Between Perceptions and Reality, CEPS Working Paper (2004): 6. 18 For analysis, see Elena Aoun, European Foreign Policy and the Arab-Israeli Dispute: Much Ado about Nothing?, European Foreign Affairs Review 8 (2003): 289-312. 19 Ibrahim Gambari, the UN undersecretary-general for political affairs, Haaretz, 22 November 2006. 20 Mark Tessler, A History of the Israeli-Palestinian Conflict (Bloomington: Indiana University Press, 1994). 21 For analysis, see Benny Morris, The Birth of the Palestinian Refugee Problem, 1947-1949 (Cambridge: Cambridge University Press, 1987).

this period, the EU failed to devise a unified policy towards the region, with different countries changing their stances according to specific political and timing contexts, as claimed by Newman and Yacobi.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. This period is characterized by European policies aimed at directly addressing the political leadership of the conflict participants.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. Since 1967, European support for Israel gradually decreased, as the continuation of the occupation switched many Europeans support for the pre-1967 underdogs (Israel) to the post-1967 underdogs (the Palestinians).24 Since then, Europeans have been torn between their commitment and support for Israels right to exist in security, on the one hand, and the Palestinians right to self- determination, on the other. Some scholars claim that after the Arab oil embargo, which has been used as a tool to pressure Europeans to support Palestinian and Arab aspirations in the Middle East, European policies towards the area changed, and so did the Israeli perceptions of the European role in the conflict. Indeed, the Israeli media and the political arena often present negative images of the EU, bearing in mind the events of the Holocaust that often cause suspicion and revulsion among Israelis. In recent years, however, the EU has come closer to adopting a single policy towards the conflict, introducing the Roadmap for Peace in the Middle East.25 Officially presented in 2003, the Roadmap was the fruit of a joint effort by the members of the Quartet the EU, US, Russia and the UN, and its official goal was to reach a comprehensive settlement of the Israeli-Palestinian conflict. The plan consists of several phases, in each of which the parties would be expected to perform their obligations in parallel.26 The first phase deals with ending terror and violence, normalizing Palestinian life and building Palestinian institutions. The Palestinians are
22

David Newman and Haim Yacobi, The EU and the Israel/Palestine Conflict: An Ambivalent Relationship, Working Paper 3, EUBorderConf Working Paper Series (2004): 21. 23 Ibid. 24 Ibid, at p. 18. 25 Quartet on the Middle East, April 2003, Roadmap for Peace in the Middle East, available at: http://news.bbc.co.uk/2/hi/middle_east/2989783.stm. 26 Dov Weissglass, political adviser to Israeli Prime Minister Sharon, said at a Tel Aviv University conference on 6 June 2005 that this is the essence of the innovations and advantages in the Roadmap, as far as Israels concerned. See Haaretz, http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=486151&contrassID=2&subContrassID= 13&sbSubContrassID=0.

to cease incitement against Israel and to undertake comprehensive political reforms in preparation for statehood. In parallel, Israel is to withdraw from Palestinian areas occupied from 28 September 2000 and freeze all settlement activity. The Israeli disengagement from the Gaza Strip, which took place in 2005, could be seen as a partial implementation of Israels commitments under the Roadmaps first phase.27 The second phase involves the creation of a temporary Palestinian state with provisional borders and attributes of sovereignty, based on a new constitution, which is to be established with no reference to issues such as the future of Jerusalem, the refugees and permanent border and security issues.28 The third phase involves a permanent-status agreement and, in fact, ending the Israeli-Palestinian conflict. In this phase, the parties would reach a settlement based on UN Security Council Resolutions 242, 338 and 1397. After the implementation of these steps, the plan promises, all Arab states are to normalize relations with Israel. While so far the sides have made no progress towards fulfilling their obligations under the first phase of the plan, it is still the only political plan officially accepted by Israel, the Palestinians, the EU and the entire international community. Referring to the plan, the European Council noted that: The Council reiterated the importance of the Quartets Road Map for the re-establishment of a positive political perspective in the region. It called on both parties to seize the opportunity offered to put the Middle East Peace Process back on track.29 On different occasions, the EU has expressed its willingness to promote confidence-building measures between the parties and to assist the implementation of the plan. Although this constitutes modest progress indeed, evidently the EUs involvement in the Israeli-Palestinian conflict is still significant.

27

In a letter to President Bush discussing the disengagement plan (14 April 2004), Sharon wrote: This initiative, which we undertake not accordingly to the Roadmap, is an independent Israeli initiative, yet it does not contradict the Roadmap, to which we are committed. Available at: http://www.knesset.gov.il/process/docs/DisengageSharon_letters_eng.htm. 28 Israel has presented 14 reservations to the original plan (June 2005), which mostly concern the security issues of the temporary Palestinian state. These reservations are extremely limiting to the new states sovereignty. For the full list of the Israeli reservations, see www.knesset.gov.il/process/docs/roadmap_response.htm. 29 Statements on official EU website, http://ec.europa.eu/comm/external_relations/mepp/index.htm.

3. Relations between the European Union and the Kingdom of Morocco

3.1 History and Origins
Located only 13 km off the shores of Spain, the Kingdom of Morocco is one of the EUs most important partners in the Mediterranean region.30 Morocco and the European Economic Community established diplomatic relations in 1960, and in 1969 they concluded their first free trade area agreement.31 The EU-Morocco Association Agreement was later signed as part of the Barcelona Process32 which began in 1995, and entered into force in 2000. The Process was initiated in order to regulate and advance the economic, political and social relations between the EC and its Member States, on the one hand, and the twelve non-EC Mediterranean countries on the other. In July 2005, the EU-Morocco Action Plan was adopted for a period of five years,33 addressing mutually recognized priorities and actions to be pursued in the areas of democratization, the rule of law and human rights all within the framework of the European Neighbourhood Policy. Moreover, in October 2008 the EU and Morocco signed a joint document within the framework of the Association Agreement, seeking to strengthen bilateral ties and promote Moroccos advanced status, in order to further

30

For analysis, see Said Haddadi, Two Cheers for Whom?: The European Union and Democratization in Morocco, Democratization 9, no. 1 (2002): 152; Marjorie Lister, The European Union and the South: Relations with Developing Countries (London: Routledge, 1997); Alasdair R. Youngs, The European Union and Democracy in the Arab Muslim World, Centre for European Policy Studies Middle East & Euro-Med Project Working Paper No. 2 (2002); Said Haddadi, The EMP and Morocco: Diverging Political Agendas?, Mediterranean Politics 8, no. 22 (2003): 73-89. 31 For background and analysis, see Thomas Rutherford, Elisabeth Rutstrom and David Tarr, Moroccos Free Trade Agreement with the European Community: A Quantitative Assessment, Economic Modeling (1997) 14: 237-269; Matthew McQueen, The EUs Free-Trade Agreements with Developing Countries: A Case of Wishful Thinking?, World Economy 25, no. 9 (1997): 1369-1385; Aziz Elbehri and Thomas Hertel, A Comparative Analysis of the EU-Morocco FTA vs. Multilateral Liberalization, GTAP Working Paper 31, 2004. 32 For background, see Commission of the European Communities: Barcelona Declaration adopted at the Euro-Mediterranean Conference, 27-28 November 1995, Barcelona, 28 November 1995, final version. Available at: http://europa.eu/legislation_summaries/external_relations/relations_with_third_countries/mediterranea n_partner_countries/r15001_en.htm. 33 For background, see European Union-Morocco Action Plan, July 2005, available on EU website at: http://ec.europa.eu/world/enp/pdf/action_plans/morocco_enp_ap_final_en.pdf. To date, three progress reports have been drawn up, in December 2006, April 2008 and April 2009. The reports are available at: http://ec.europa.eu/world/enp/pdf/country/morocco_enp_country_report_2004_en.pdf. For analysis, see Elena Baracani, From the EMP to the ENP: A New European Pressure for Democratization?: The Case of Morocco, Centre for the Study of European Politics and Society Working Paper (2005).

political relations, economic integration and other cooperation initiatives.34 Maintaining such intimate ties with Morocco, the EU is by far its largest, most important trading partner. Official statistics shows that more than half of Moroccos foreign purchases (51.4%) originate from the EU, and as much as 71.9% of Moroccan exports are destined for it.35 While the main products Morocco imports from the EU are fabrics, petroleum gas and other hydrocarbons, one of the most significant Moroccan exports to the EU is the fisheries sector, regarded by the EU as an extremely important economic activity in the European Union. An official report states that with a production of almost 7 million tonnes of fish, in 2005, from fisheries and aquaculture, the EU is the worlds second largest fishing power after China.36 Yet, despite the EUs massive fishery catches, over 6 million tons a year had to be imported to meet the demands of the EU. Resulting from this situation, in June 2006 the EU and Morocco signed a bilateral Fisheries Agreement,37 as part of the Common Fisheries Policy (CFP). The aim of the Agreement, which the EU called one of the major fisheries agreements for the EC, 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.38 Similarly to the EU-Morocco Association Agreement, the Fisheries Agreement does not provide a territorial definition of the Kingdom of Morocco. 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, a territory which has been under Moroccan control since 1975. This paper will provide a legal analysis of the issues involved in the compatibility of the Fisheries Agreement and the EU-Morocco
34

Documents full text is available on EU website: EU-Morocco: Association Council Decides to Strengthen Bilateral Relations, IP/07/1155, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1155&format=HTML&aged=0&langu age=%20ENLanguage=en. 35 For official statistics and economic analysis, see http://trade.ec.europa.eu/doclib/docs/2006/september/tradoc_113421.pdf. 36 For background and official full statistics, see EU website at: http://ec.europa.eu/fisheries/index_en.htm. 37 Morocco-EU Fisheries Partnership Agreement, adopted by Council Regulation EC No 764/2006 of 22 May 2006 (OJ L141). The Agreement, covering the period from February 2007 to February 2011, is available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:141:0004:0037:EN:PDF. For analysis, see Enrico Milano, The New Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco: Fishing Too Far South?, Anuario Espaol de Derecho Internacional 1 (2006). 38 Ibid., Morocco-EU Fisheries Partnership Agreement, articles 2(a), 11.

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Association Agreement with international law, comparing the legal situation with the EU-Israeli dispute over the legal treatment of goods exported from the territories which have been under Israels control since the Six Day War.

3.2 The Dispute over the Legal Status of Western Sahara

Western Sahara, a sparsely populated desert territory in northwestern Africa, 39 is Africas last non-self-governing territory. After 90 years of the Spanish mandate starting in 1885, decolonization processes were initiated in 1975,40 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).41 Spain, in turn, agreed to postpone its planned referendum on self-determination in the territory, in which the people of Western Sahara could choose either full independence or to remain attached to Spain.42 On 13 December 1974, the General Assembly adopted Resolution 3292, asking the ICJ to decide on the following issues: Was Western Sahara, at the time of colonization by Spain, 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, determining Western Sahara at the time of colonization by Spain was not, indeed, a territory belonging to no one (terra nullius). In addition, 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, see United Nations, Department of Economic and Social Affairs Population Division (2009), World Population Prospects, Table A.1. 2008 revision. Available at: www.un.org/esa/population/publications/wpp2008/wpp2008_text_tables.pdf. 40 For background, see Kamal Fadel, The Decolonisation Process in Western Sahara, Indigenous Law Bulletin 4, no. 23 (1999): 7-30; Toby Shelley, Endgame in the Western Sahara: What Future for Africas Last Colony? (London: Zed, 2004); Erik Jensen, Western Sahara: Anatomy of a Stalemate (London: Lynne Rienner, 2004). 41 ICJ Advisory Opinion on Western Sahara, ICJ Reports, 12, 1975. For analysis, see Obinna B. Okere, The Western Sahara Case, International and Comparative Law Quarterly 28 (1979): 296-312; Mark Smith, Sovereignty over Unoccupied Territories: The Western Sahara Decision, Case Western Reserve Journal of International Law 9, no. 2 (1977): 135-161; Mark Janis, The International Court of Justice: Advisory Opinion on the Western Sahara, Harvard International Law Journal 17 (1976): 609-621. 42 Principle VI, General Assembly Resolution 1514 (XV) 15 December 1960, VI-IX UN Doc A/4684 (1960), GAOR 15th Session, Supp. 16, p. 29, available at: http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/152/88/IMG/NR015288.pdf?OpenElement. 43 General Assembly Resolution 3292, 29 UN GAOR Supp. 31, at 103, 104, UN Doc. A/9631 (1974), available at: http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/738/94/IMG/NR073894.pdf?OpenElement.

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free and genuine expression of the will of the peoples of the territory.44 Thus, the local Sahrawi (Western Sahara natives) population was entitled to self-determination through the planned referendum. However, the designated referendum never took place. Shortly after the rendering of the ICJ Advisory Opinion, Morocco commenced a massive government-encouraged civilian march into the territory of Western Sahara, pressuring the Spanish authorities to negotiate directly over the future status of Western Saharas territory.45 This well-calculated act, known as the Green March, 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;46 this could not be implemented because of Moroccos deferral. It also greatly increased the kings popularity as defender of the countrys territorial integrity and symbol of its sovereignty, and tilted the balance of power in his favor until his death in 1999.47 After Spanish colonial forces departed in February 1976, Morocco took control of the northern two-thirds of Western Sahara while Mauritania took what was left in the south.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, Morocco and Mauritania, in return for access to natural resources and fishing rights in Western Sahara waters for ten years.49 By signing the agreement, Spain in fact reneged on its initial intent to conduct a referendum on self-determination in Western Sahara. Although Spain officially withdrew from Western Sahara in February 1976, it never did, in a legal fashion, transfer sovereignty over the territory50 in accordance with the UN and international law. 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, in particular, of the principle of selfdetermination through the free and genuine expression of the will of the peoples of the territory. 45 For further reading and analysis, see Jerome Weiner, The Green March in Historical Perspective, Middle East Journal 33 (1976): 20-33. 46 United Nations Security Council Resolution 380, 06.11.1975, UN Doc. S/Res/380. Available at: http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/782/27/IMG/NR078227.pdf?OpenElement. 47 For further discussion, see Abdeslam Maghraoui, Depoliticization in Morocco, in Larry Diamond, Marc Plattner and Daniel Brumbers, eds., Islam and Democracy in the Middle East, 67-75 (Baltimore: Johns Hopkins University Press, 2003). 48 See Jerome Weiner, The Green March in Historical Perspective, Middle East Journal 33 (1979): 20-33. 49 For detailed analysis of the Madrid Agreement, see Jacques Roussellier, Quicksand in the Western Sahara?: From Referendum Stalemate to Negotiated Solution, International Negotiation 2, no. 10 (2005): 311-336. 50 Letter from the Under Secretary General for Legal Affairs to the President of the Security Council, 29.01.2002, UN Doc. S/2002/161.

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agreement, indirectly legitimizing the Moroccan claim to Western Saharas territory. Mauritania officially renounced its claim to Western Saharas territory in 1979 following an armed conflict with the Polisario Front, a Sahrawi rebel movement established to promote independence for Western Sahara, supported by Algeria. 51 The Polisario Front declared the Sahrawi Arab Democratic Republic (SADR), a partially52 recognized state in February 1976, claiming the entire territory of Western Sahara as its own.53 Mauritanias withdrawal and the lasting, 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. In September 1988, 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).54 Despite a UN-administered cease-fire that has remained in effect since September 1991, administered by MINURSO, attempts to hold a referendum have failed and parties thus far have rejected all brokered proposals. Morocco still claims and administers the majority of Western Saharas territory, whose sovereignty remains unresolved and disputed. As to the European stances on the dispute, it is safe to say that the EU has not taken sides in the dispute. The European Parliament determined that Under international law, Western Sahara currently has the status of a Non-SelfGoverning Territory within the meaning of Article 73 of the UN Charter. Spain does not play its de jure administrative role and the territory is administered de facto by

51

For background on the Polisario Front, see Anthony Pazzanita, Morocco versus Polisario: A Political Interpretation, Journal of Modern African Studies 32, no. 2 (1994): 265-278. See also Polisarios official website at: http://www.upes.org/default_eng.asp. 52 For an up-to-date list of countries formally recognizing the Sahrawi Arab Democratic Republic, see http://www.worldstatesmen.org/Western_Sahara.html. The Sahrawi Arab Democratic Republic, represented by a government-in-exile, was seated as an Organization of African Unity (OAU) member in 1984. Morocco withdrew its membership in the Organization ever since. 53 For background and information on the Sahrawi Arab Democratic Republic, see Claude Bontems, The Government of the Sahrawi Arab Democratic Republic, Third World Quarterly 9, no. 1 (1987): 168-186; Tony Hodges, The Origins of Sahrawi Nationalism, in Richard Lawless and Laila Monahan, eds., War and Refugees: The Western Sahara Conflict (London: Pinter, 1987): 31-62; Maria Stephen and Jacob Mundy, A Battlefield Transformed: From Guerilla Resistance to Mass NonViolent Struggle in the Western Sahara, Journal of Military and Strategic Studies 8, no. 3 (2006): 132. 54 United Nations Security Council Resolution 621, 20.09.1988, UN Doc. S/Res/621 and 690, 29.04.1991, UN Doc. S/Res/690. Available at: http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/541/48/IMG/NR054148.pdf?OpenElement.

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Morocco.55 Different EU Member States hold profoundly divergent positions towards the Western Sahara problem. Among the strong opponents of the EUMorocco Agreement are mainly northern states, which have consistently raised doubts about the legality of the EU-Moroccan relationship and initiated the Parliament and Commission resolutions discussed above.56 On the other hand, the southern states, interested in maintaining close ties with Morocco, have taken a more careful approach to the subject. Spain, as the former colonial power, still holds many economic and political interests in Morocco, similarly to France, and is closely linked with Morocco in matters of foreign policy and economy.57 58

55

See http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A62006-0163+0+DOC+PDF+V0//EN. 56 Ibid. 57 Ibid. 58 The situation described here could possibly be compared to the American interests in Turkey. Maintaining strong political, defense and economic ties with Turkey, the U.S. is willing to overlook matters related to the recognition of the Armenian genocide. Lately, however, the U.S. Congress adopted a non-binding resolution labelling the World War I-era massacre of Armenians by Turkish forces genocide. The resolution was strongly condemned in Turkey. For analysis, see http://www.haaretz.com/news/turkey-recalls-ambassador-from-washington-1.264177.

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4. The EU-Israeli Dispute over Exports from the Territories

4.1 Historical Background and Legal Introduction
Since 1998, 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 Israels control following the Six Day War, namely the Golan Heights, East Jerusalem, the West Bank and the Gaza Strip. Since Israels disengagement from the Gaza Strip (2005), the dispute is confined to the Golan Heights, East Jerusalem and the West Bank. With respect to the West Bank and according to the IsraeliPalestinian Interim Agreement on the West Bank and the Gaza Strip, the West Bank, excluding East Jerusalem, was divided into three areas; Area A (under exclusive Palestinian military and civil competence), Area B (under Israeli military competence and Palestinian civil competence), and Area C (under Israeli responsibility in civil and security matters). In relation to the West Bank, the dispute is focused, for practical purposes, 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. Despite its seemingly modest scope in monetary terms,59 the dispute has clouded EU-Israeli economic as well as political relations.60 Legally speaking, the dispute should be examined, first and foremost, under the EC-Israel Agreement. 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.61 With respect to industrial goods, customs duties on imports and exports, and any charges having equivalent effect, shall be prohibited between the Community and Israel....62 Industrial goods can thus be exported from Israel to the EU and vice versa, exempt from custom duties and, in principle, free from quantitative restrictions. The entitlement to preferential treatment under the EC-Israel Agreement is determined by Protocol 4 to the Agreement. According to the Protocol, originating products are to benefit from the EC-Israel

59 60

For analysis, see G. Harpaz, cited above fn. 1. Ibid. 61 See, in particular, Articles 6-18 of the EC-Israel Association Agreement. 62 Article 8 of the EC-Israel Association Agreement.

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Agreement upon submission of a EUR.1 certificate63 to be issued by the customs authorities of the exporting state.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, provided that those materials have undergone sufficient working or processing in Israel.65 According to the Protocol, where the customs authorities of the importing state have reasonable doubts as to authenticity of the EUR.1 certificate, the originating status of the product concerned or the fulfillment of the Protocols other requirements, they may request subsequent verification of the EUR.1 certificates.66 Verification would then be carried out by the customs authorities of the exporting state. An unsatisfactory verification procedure67 would result in the requesting customs authorities refusing entitlement to preferential treatment. When a dispute arises in relation to the verification procedures and it cannot be settled between the customs authorities, or where these procedures raise a question of interpretation of the Protocol, the matter is to be submitted to a Customs Cooperation Committee, an administrative body composed of customs experts and officials from the Commission, the EU Member States and the State of Israel.68 Neither the Protocol nor the EC-Israel Agreement addresses the question of the precise territorial scope of the EC-Israel Agreement. Article 83 of the Agreement merely refers ...to the territory of the State of Israel,69 thereby failing to provide a territorial definition or to offer a clear statement of the Agreements territorial application. 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).70 Under this provision, 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. But these provisions were not
63 64

Article 17(1)(a) of the EC-Israel Protocol. Article 18(1) of the EC-Israel Protocol. 65 Articles 2(2)(a) and (b) of the EC-Israel Protocol. 66 Provided for in Article 32 of the EC-Israel Protocol. 67 Accordingly, 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, the requesting customs authorities shallrefuse entitlement to the preferences. 68 Article 33 of the EC-Israel Protocol. Under Article 39 of the Protocol, a Customs Cooperation Committee was established, "entrusted with carrying out administrative cooperation with a view to the correct and uniform application" [of this Protocol]. 69 See Article 83 of the Association Agreement. 70 Article 67 of the EC-PLO Agreement.

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invoked in this dispute, both parties preferring to resolve it through diplomatic channels. Another relevant agreement is the EC-PLO Association Agreement, 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. 71 According to the EC-PLO Agreement [n]o new customs duty on imports, or any other charge having equivalent effect, shall be introduced on trade between the Community and the West Bank and Gaza Strip.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). It must be stressed that these provisions apply to the whole of the West Bank and Gaza Strip, despite the fact that the Palestinian Authority enjoys only partial control of that territory.73 Under Protocol 3 appended to the EC-PLO Agreement (EC-PLO Protocol), 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.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.1 movement certificate.75 The certificate is to be issued by the customs authorities of the exporting state.76 Article 73 of the EC-PLO Agreement states that it applies to the territory of the West Bank and the Gaza Strip, but neglects to define the precise boundaries of these territories. In the event of a dispute relating to the interpretation or application

71 72

Under Article 1(2) of the EC-PLO Agreement. Article 5 of the EC-PLO Agreement (emphasis added). 73 C. Hauswaldt, cited above fn. 1, at p. 597. 74 Articles 2(2)(a) and (b) of the EC-PLO Protocol. 75 Article 15(1) of the EC-PLO Protocol. Alternatively, 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, or on any other commercial document, which describes the products concerned in sufficient detail to enable them to be identified. 76 Article 16 of the EC-PLO Protocol.

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of the EC-PLO Agreement, each party may refer the dispute to the Joint Committee for settlement.77 Following futile negotiations designed to solve the long-running dispute, the Commission, in a communication to the Council and the European Parliament on 12 May 1998, 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.78 Subsequently, 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, stating that it was legally bound to guarantee the implementation of that Agreement and to protect the Unions own resources.80 Consequently, the Commission announced the publication of an Avis,81 informing importers that products exported by Israel from the Territories were not entitled to preferential treatment under the EC-Israel Agreement.82 Israel was ultimately forced, due to the asymmetric bargaining strengths of the two sides, to concede. In August 2004, the two parties reached what then seemed to be a technical arrangement.

4.2 A Technical Resolution of the Dispute?

Under the solution agreed, which was adopted by the EU-Israel Customs Cooperation Committee and which sparked much criticism both in Israel 83 and in the EU,84 Israel would specify the geographic location of production in the certificate of origin issued for goods exported to the EU. It would not, however, specify whether
77 78

Article 67 of the EC-PLO Agreement. See the Opinion of AG Bot, cited above fn. 4, at para. 29, referring to Implementation of the Interim Agreement on Trade and Trade-Related Matters between the European Community and Israel [SEC(1998) 695 final]. 79 See the draft minutes of the second meeting of the EU-Israel Association Council of 20 November 2001, at: http://europa.eu/rapid/pressReleasesAction.do?reference=PRES/01/414&format=HTML&aged=0&lg= pl&guiLanguage=en. 80 See the Opinion of AG Bot, cited above fn. 4, at para. 30, referring to ibid., p. 4. 81 Notice to Importers Imports from Israel into the Community, 23 November 2001 (OJ 2001 C 328, p. 6). 82 See Official Journal of the European Communities, 2001/C 328/04, 23 November 2003; EC Commission, Notice to Importers Imports from Israel into the Community (OJ 2001 C 328/6). 83 For analysis, see G. Harpaz, cited above fn. 1, at p. 1057. 84 For analysis, see Nathalie Tocci, The Widening Gap between Rhetoric and Reality in the EU Policy towards the Israeli-Palestinian Conflict, 217 CEPS Working Document (2005), available at: http://www.ceps.be/book/widening-gap-between-rhetoric-and-reality-eu-policy-towards-israelipalestinian-conflict.

18

the goods originated in the Territories or not. The solution allowed Israel to meet the EUs demands, while continuing, contrary to the EUs stance of principle, to issue preferential proof in an official certificate of origin regarding goods exported from the Territories. On the other hand, 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, by instructing the national customs authorities of its Member States, on the basis of the geographic location specified in the Israeli certificate of origin, 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 Although the implementation of the technical arrangement seemed to have brought the dispute to an end, 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.

85

As the EU itself proclaimed in 2004: This technical arrangementwill 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, by allowing them to identify those goods which originate in Israel, and which qualify for preferential duty, as opposed to those coming from the settlement areas, which are subject to non-preferential duties. 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, which are not covered by the Association Agreement.

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5. The Brita Case

5.1 Legal Proceedings before the ECJ
The legal proceedings before the ECJ arose when Brita GmbH (Brita), a German company, imported drink-makers for sparkling water manufactured by the Israeli company Soda-Club Ltd (Soda-Club), based in Mishor Adumim, an Israeli settlement situated in the West Bank. 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 Israels customs authority. When the goods arrived in Germany, 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. However, based on a German ministerial order, where there was good reason to suspect that the goods concerned might be from Israeli settlements in the Territories, the German customs office requested subsequent verification of the proof of origin.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. As such, they are originating products pursuant to the Israel-EUAgreement and are entitled to preferential treatment under that Agreement.87 Deeming that reply to be insufficient within the meaning of that term under Article 32(6) of the EC-Israel Protocol, Hauptzollamt Hamburg-Hafen, the German customs authorities, requested the Israeli customs authorities to indicate, by way of supplementary information, whether the goods were produced in Israeli settlements in areas under Israeli control since 1967. The Israeli customs authorities failed to reply, leading Hauptzollamt Hamburg-Hafen to refuse preferential treatment to the products in question. Postclearance recovery of customs duties was therefore sought,88 leading Brita to launch an objection before the Hauptzollamt Hamburg-Hafen. That objection was dismissed, causing Brita to bring an action before the Finanzgericht Hamburg (Finance Court).
86

According to AG Bot, cited above fn. 4 AG, at paras. 52-53, 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, ibid., at para. 54. 88 In the amount of approximately 19,000.

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The German Court stayed its proceedings and referred the case to the ECJ for a preliminary ruling,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.

5.2 Opinion of Advocate General Bot

On 29 October 2009, Advocate General Bot delivered his Opinion, 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. 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). The AG referred to the ECJs own jurisprudence, according to which origin is established by the authorities of the exporting country.90 Thus, in principle, the customs authorities of the state of import may not unilaterally declare invalid a EUR.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.91 The Brita case was not concerned, however, in the opinion of the AG, 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.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, according to the AG, 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, namely what is the Agreements territorial scope.93 Thus, insofar as the dispute relates to the territorial scope of the EC-Israel Agreement, the customs authorities of the importing EU
89 90

OJ C 285/26 of 8 November 2008. C-218/83 Les Rapides Savoyards and Others [1984] ECR 3105, at para. 26. 91 See Joined Cases C-23/04 to C-25/04 Sfakianakis [2006] ECR I-1265, as analyzed by the Opinion of AG Bot, cited above fn. 4, at para. 75. However, such mutual recognition is not absolute (see further, Opinion of AG Bot, cited above fn. 4, at paras. 77-82). 92 Opinion of AG Bot, cited above fn. 4, at paras. 85-86. 93 Ibid., at para. 94.

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Member State are not bound by the result of the subsequent verification carried out by the Israeli customs authorities. 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, such as that in question, pertaining to the more general question relating to the territorial scope of the Agreement.94 The German customs authorities were not thus under an obligation to submit the dispute to the Customs Cooperation Committee. The appropriate venue for solving the dispute was instead the Association Council.95 The AG then addressed a third question, 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. The AG answered that question in the negative. He noted that the EC-Israel Agreement applies to the territory of the State of Israel96 and that, under public international law, the West Bank and the Gaza Strip do not form part of that territory.97 This interpretation, which is accepted by virtually the entire international community and which, according to the AG, was adopted by the UN Security Council98 and by the Council of the EU,99 must in his view lead to the conclusion that such products cannot benefit from the EC-Israel Agreement. 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.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. Moreover, the above analysis of the 2004 technical arrangement leads one to conclude

94 95

Ibid., at paras. 99-100. 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. 96 See Article 83 of the EC-Israel Agreement. 97 See the Opinion of AG Bot, cited above fn. 4, at para. 109. 98 For the analysis of these resolutions, see ibid., at para. 111. 99 Ibid., at para. 113 where the AG analyzes various EU sources. 100 Ibid., at paras. 121-125.

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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). 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. In his opinion, the competent authorities responsible for issuing certificates for such products are the Palestinian authorities and hence, in order to benefit from the preferential treatment established by the ECPLO Agreement, the certificates of origin must be issued only by the Palestinian customs authorities.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, under which responsibility for issuing EUR.1 certificates for such products lies with the customs authorities of the West Bank and the Gaza Strip.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. 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.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.105 In the Cypriot dispute, 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. The ECJ refused to recognize the legal force of such certificates, 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., at paras. 130-131. Ibid., at para. 127, relying on Article 16(4) of the EC-PLO Protocol 3. 103 Ibid., at para. 138. 104 Ibid., at paras. 128-129. 105 Agreement annexed to Council Regulation (EEC) No 1246/73 of 14 May 1973 (OJ 1973 L 133, p. 1. 106 See the Opinion of AG Bot, cited above fn. 4, at paras. 132-138, analyzing C-432/92 Anastasiou and Others [1994] ECR I-3087.

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that certificates issued by authorities other than those designated by name in the relevant association agreement cannot be accepted as valid. 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, more specifically the West Bank, are not entitled to preferential treatment under either of the two Association Agreements.

5.3 The Judgment of the ECJ

The ECJ distilled four interrelated questions from the referring German Court. 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. The ECJ, adopting to a large extent the reasoning of the AG, answered that question in the negative.107 An additional question addressed by the ECJ was whether there is an obligation to bring the dispute before the Customs Cooperation Committee. Relying again on the reasoning of the AG, the Court concluded that the question at issue does not concern the technical interpretation of the EC-Israel Protocol, but the broader, legal determination of the Agreements territorial scope. Thus the customs authorities of the importing state are not obliged to refer the dispute to the Customs Cooperation Committee. Each of the contracting parties may, instead, bring that question before the Association Council.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. In the ECJs view, 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). Such interpretation is to be conducted, in turn, by the international law of treaties, including, in particular, the Vienna Convention on the Law of Treaties. 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, at paras. 65-66, relying on Article 32(6) of the EC-Israel Protocol. 108 Ibid., at paras. 71-73. 109 Ibid., at paras. 39-44.

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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 Agreements object and purpose. In that respect, account is to be taken of any relevant rules of international law applicable in the relations between the parties, including the general principle of pacta tertiis nec nocent nec prosunt (Treaties do not impose any obligations, or confer any rights, on third states), which is enshrined in Article 34 of the Vienna Convention. 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, respectively. 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].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.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. Such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would be contrary to the principle of pacta tertiis nec nocent nec prosunt.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.113 In concluding its judgment, the ECJ dismissed the possibility, raised by the referring Court, under which the importing states authorities could make an elective determination, 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, if any, and of whether proof of origin falls to be issued by the

110

Ibid., at paras. 46-50, 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. 111 Ibid., at paras. 50-52. 112 Ibid., at para. 52. 113 Ibid., at paras. 52-54.

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Israeli authorities or by the Palestinian authorities.114 According to the ECJ, 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. Elective determination is also inconsistent with the ECJs own jurisprudence, outlined above, with respect to the 1972 EECCyprus Agreement.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. Furthermore, these authorities may not make an elective determination, 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.

114 115

Ibid., at paras. 55-58. Ibid., at para. 57, referring to C-432/92 Anastasiou and Others, fn. 103, at pp. 37-41.

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6. Analysis
6.1 Trade Law Versus Public International Law?
According to the literature on rules of origin pertaining to disputed territories, the ECJ was faced in the Brita proceedings with two possible approaches.116 The first is the trade-practical approach. 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, seeking the entity which effectively controls that area and which is internationally responsible for it. 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, 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.119 The second approach is the legal-sovereign approach,120 which ignores the de facto control of the disputed territory and focuses instead on the de jure legality, sovereignty and recognition. Under that approach, the entity identified under international law as the appropriate sovereign of that territory would also be the entity of origin. The underlying assumption is that trade agreements are not trade-purist and hence are to be subject to the rules of public international law. 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, arguing that it can circumvent the contested political questions involved and save free trade agreements from falling hostage to political disputes.121 The EC-Israel Agreement is, after all, a trade agreement, which explicitly subjected itself to the GATT/WTO trade regime.122

116 117

For extensive analysis, see M. Hirsch, cited above fn. 1. See also C. Hauswaldt, cited above fn. 1. M. Hirsch, cited above fn. 1, at p. 577. 118 See Article XXVI (5) (a) of the GATT, as analyzed by M. Hirsch, cited above fn. 1, at pp. 578-579. 119 Ibid., at p. 578. 120 Ibid., at pp. 580-584. Hirsch treats that approach as the political-sovereignty approach. 121 M. Hirsch, cited above fn. 1, at pp. 588-590. Compare with C. Hauswaldt, cited above fn. 1, at p. 610, who raises that possibility but, on the basis of his analysis, dismisses it. 122 See Article 6 of the Association Agreement and the analysis of M. Hirsch, cited above fn. 1, at pp. 578-579.

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The AG and the ECJ in Brita chose, however, a different path. The AG ignored the issue of Israels de facto control of the settlements and its overall responsibility for them, as well as for other areas in the West Bank. Instead, in reaching his conclusion that the goods in question could not be regarded as originating in Israel, he placed heavy emphasis on Palestinian legal rights under the Israeli-PLO accords and on Israels recognized borders under international law. In that context, he relied in unequivocal terms on UN resolutions pertaining to Israels borders;123 on the ECIsrael Agreement and the importance it attaches to international law;124 on the EUs legal position regarding the borders of the State of Israel; 125 and on the Israeli-PLO Agreement.126 This led the AG to argue that the Court cannot but concludethat the territories of the West Bank and the Gaza Strip do not form part of the territory of the State of Israel127 and hence it seems difficult to maintain that a West Bank product is entitled to preferential treatment under the EC-Israel Agreement.128 The ECJ also relied on the legal-sovereign approach, albeit in an implicit and formalistic manner. Like the AG, the ECJ did not ascribe any legal meaning to Israels de facto control of the settlements or of Area C and relied instead on international law. Yet, instead of utilizing international law in order to directly confront the contested legal issues pertaining to the Israeli-Palestinian conflict and occupation, annexation and recognized borders and sovereignty, as the AG did, 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 Agreements territorial scope. 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, that they were not required to submit the dispute to the Customs Cooperation Committee, and that the goods in question were not Israeli and therefore not entitled to preferential treatment.

123

For the analysis of these resolutions and other sources, see the Opinion of AG Bot, cited above fn. 4, at paras. 109 and 111. 124 Ibid., at para. 110, 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, particularly the observance of human rights and democracy, which form the very basis of the Association. See also Article 2 of that Agreement. 125 Ibid., at para. 113. 126 Ibid., at para. 114, relying on Article XI(1) of the Israeli-Palestinian Agreement, under which both parties view the West Bank and the Gaza Strip as a single territorial unit. 127 Ibid., at para. 112. 128 Ibid., at para. 115.

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

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lines between Israel and Palestine (which the EU supported). The Court, although formally detached from political considerations, could not have supported such an outcome, which would have resulted in Israel treating the West Bank as an appendix of Israel.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 Courts own jurisprudence. As stated above, the Courts 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 sovereigns territory. The EEC-Cyprus Trade Agreement was construed by the ECJ in accordance with the legal-sovereignty approach, and the same Court could not in legal terms justifiably adopt a conflicting trade-practical perspective in the Israeli-Palestinian context. Finally, the adoption of the trade-practical approach would have been in conflict with the jurisprudence of the International Court of Justice (ICJ). In 2004, the ICJ delivered its Advisory Opinion regarding the construction by Israel of a wall in the West Bank (the ICJ Opinion).136 The ICJ implied that such a construction was illegal under international law, that Israels entire settlement campaign in the West Bank was illegal, and that Israel could not justify one legal wrong (the construction of the wall) on the basis of another legal wrong (the settlements).137 Thus according to the ICJ, Israel could not benefit from its own legal wrongdoings in the West Bank. The adoption of the trade-practical approach would have brought about precisely that outcome, placing the ECJ in conflict with the ICJ Opinion. In sum, the avoidance of the trade-practical approach and the implicit adoption of the legal-sovereign approach was inevitable. Such a judicial choice ensured consistency between the EUs external trade policies and its common foreign policy in the EU-Israel-Palestinian context, and consistency within the ECJs own jurisprudence. The choice of the legal-sovereign approach necessitated, as a corollary, a heavy reliance on international law. However, was such reliance pursued by the Court in a commendable manner? The next section, which deals with inconsistencies

135 136

C. Hauswaldt, cited above fn. 1, at p. 610. Intl Ct. Justice 9 July 2004, 43 ILM 1009 (2004). 137 For a comparison between the Advisory Opinion and the position of the Israeli Supreme Court on that issue, see Guy Harpaz, The Israeli Supreme Court in Search of Universal Legitimacy, Cambridge Law Journal 65, no. 1 (2006): 7.

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arising from the ECJs judgment as manifestations of double standards, will try to provide an answer.

6.2 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,138 thereby extending its sphere of economic and normative influence139 and increasing the geographical scope of its peace community.140 For that purpose, the EU has positioned itself as a Normative Power, grounding its integration agenda in a distinctive normative foundation and exporting that normative European Model elsewhere.141 As a Normative Power, the EU relies on soft power instruments,142 which rest on cultural and political values and foreign policies, and which enable the EU to obtain what it wishes at times through attraction, as opposed to force, coercion or payment.143 These EU normative aspirations, which are heavily based on the ethos of international law, human rights, international institutions and multilateralism, are central to the EUs internal and external raison dtre, as evident in the Lisbon Treaty.144 The achievements of the EU on the normative front have, however, been modest, especially in the Middle East, due inter alia to the lack of external legitimacy. The concept of legitimacy has been extensively examined in the EU context.145 Suffice it to say that legitimacy may be seen as a normative belief that a rule or institution should be obeyed, not due to coercion or self-interest, but due to its inherent

138

Kalypso Nicoladis and Robert Howse, This is my EUtopia...: Narrative as Power, Journal of Common Market Studies 40, no. 4 (2002): 768. 139 See Ian Manners, Normative Power Europe: A Contradiction in Terms?, Journal of Common Market Studies 40, no. 2 (2002): 235; Richard Whitman, From Civilian Power to Superpower?: The International Identity of the European Union (New York: St. Martins Press, 1998); K. Nicolades and R. Howse, ibid. 140 Lily Gardner-Feldman, Reconciliation and Legitimacy: Foreign Relations and Enlargement of the European Union, in Thomas Banchoff and Mitchell P. Smith, eds., Legitimacy and the European Union: The Contested Polity (London: Routledge, 1999), 77. 141 Ibid., at p. 252. 142 Joseph Nye, Soft Power: The Means to Success in World Politics (Boston: Public Affairs, 2004), 7583. 143 Ibid., at p. 77. 144 See Articles 3 and 21 of the consolidated version of the Treaty on European Union. 145 For analysis, see Guy Harpaz, Normative Power Europe and the Problem of a Legitimacy Deficit: An Israeli Perspective, European Foreign Affairs Review 21, no. 1 (2007): 89.

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normative strength,146 being perceived as desirable, proper or appropriate within a socially constructed system of norms, values, beliefs and definitions.147 Thus, if the EU wishes to act as a civilian, soft superpower, it must equip itself not only with economic might but also with international legitimacy. Civilian, normative power rests to a certain degree, as Nye postulates, on legitimacy.148 The EU should thus strive to acquire the status of a credible and legitimate actor. It must find the optimal balance between realpolitik and morals, norms and international legitimacy. How can the EU attain such legitimacy? Providing a comprehensive answer to this question lies beyond the scope of this paper. Suffice it to say that external pressures exerted by the EU should be compatible with its own fundamental principles and with its own raison dtre. Similarly, pressures exerted by the EU on one external player should be consistent with pressures exerted on other external players. The EU must adopt policies consistently and implement them in the same manner.149 But can the EUs approach towards the goods exported by Israel from the West Bank be regarded as meeting these requirements? It is submitted that it cannot. Admittedly, the legal-sovereign approach adopted in Brita reflects that adopted in respect of Cyprus, where the ECJ found that only the Cypriot State is the recognized Republic of Cyprus.150 Thus the judgment is judicially consistent. Yet the approach adopted by the Court vis--vis Israel (and Cyprus) is in conflict with the EUs position, pursued by its political organs, regarding goods exported from Taiwan and Western Sahara. With respect to Taiwan, while the EUs political organs do not recognize its sovereignty separately from China (the One China Policy), they do not disqualify the use of Taiwanese certificates of origin for goods imported from Taiwan, thus implementing the trade-practical approach in this regard.151 It must, however, be remembered that the Taiwanese case is not entirely analogous to the

146

Jens Steffek, The Legitimation of International Governance: A Discourse Approach, European Journal of International Relations 9, no. 2 (2003): 252; Ian Hurd, Legitimacy and Authority in International Politics, International Organization 53, no. 2 (1999): 379, 381 and 387; Thomas Franck, The Power of Legitimacy among Nations (New York: Oxford University Press, 1990). 147 Mark Suchman, Managing Legitimacy: Strategic and Institutional Approaches, Academy of Management Review 20, no. 3 (1995): 574. 148 J. Nye, cited above fn. 142, at p. 6. 149 Ibid., at pp. 10-11. 150 Case C-432/92, fn. 103, especially para. 31. For further analysis, see Stefan Talmon, The Cyprus Question before the European Court of Justice, European Journal of International Law 12 (2001): 727. 151 For analysis of this practice, see M. Hirsch, cited above fn. 1, at pp. 579-580. See also Talmon, ibid., 747-748.

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Israeli one due to its different characteristics and because of the fact that, in contrast to EU-Israeli trade, 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).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.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). Both Israel and Morocco are the objects of critical European Parliament154 and Security Council155 resolutions urging them to withdraw from territories occupied by them. The ICJ has also adjudicated with respect to both scenarios. In 1975, 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 territory156 and asserted the principle of self-determination through the free and genuine expression of the will of the peoples of the territory.157 Thus, the local Sahrawi (Western Sahara indigenous) population was entitled to selfdetermination through the referendum planned at that time by Spain. Similarly, in 2004, the ICJ stated in unequivocal terms that the Palestinian people have the right to self-determination. Moreover, the EU concluded Association Agreements with both
For an early, initial analysis, see M. Hirsch, cited above fn. 1, at p. 580. For background, see Kamal Fadel, The Decolonisation Process in Western Sahara, Indigenous Law Bulletin 4, no. 23 (1999): 7; Toby Shelley, Endgame in the Western Sahara: What Future for Africas Last Colony? (London: Zed, 2004); Erik Jensen, Western Sahara: Anatomy of a Stalemate (London: Lynne Rienner, 2005). 154 See the words of Prof. Marco Balboni from the University of Bologna, speaking at the conference on Multilateralism and International Law with Western Sahara as a Case Study, University of Pretoria, 4-5 December 2008, available at: http://www.arso.org/ConferencePretoria2008comm.htm; For the most recent EU Parliament Resolution on the subject, see B7-0247/2009 (16 December, 2009). 155 United Nations Security Council Resolution 380, 6 November 1975, UN Doc. S/Res/380. Available at: http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/782/27/IMG/NR078227.pdf?OpenElement. 156 ICJ Advisory Opinion on Western Sahara, 16 October 1975, ICJ Reports 1975, p. 12, 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, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory. 157 Ibid., at paragraph 190; for analysis, see Obinna B. Okere, The Western Sahara Case, International and Comparative Law Quarterly 28 (1979): 296; Moshe Smith, Sovereignty over Unoccupied Territories: The Western Sahara Decision, Case Western Reserve Journal of International Law 9, no. 2 (1977): 135; Mark Janis, The International Court of Justice: Advisory Opinion on the Western Sahara, Harvard International Law Journal 17, no. 1 (1976): 609.
153 152

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Israel and Morocco under the same aegis (the Barcelona Process) and in the same year (1995). In both cases, the territorial applicability of the Agreement was left undefined, namely to the territory of the State of Israel and to the territory of the Kingdom of Morocco. Yet despite these comparable attributes, the EU treats the two scenarios differently. 158 With respect to Israel, the legal-sovereign approach was applied, first by the EU political institutions and subsequently by the ECJ to the term territory of Israel, thereby denying Israel any trade benefits pertaining to the West Bank. Yet with respect to Morocco, the trade-practical approach is applied by the EUs political organs to the term territory of Morocco, thereby allowing Morocco trade benefits under its Association Agreement with the EU with respect to occupied Western Sahara. Even worse, in 2006, the EU concluded the EU-Morocco Fisheries Agreement,159 as part of the EUs Common Fisheries Policy (CFP). Under the agreement, which was defined as one of the major fisheries agreements for the EC, EU vessels were granted access to fish resources falling within the sovereignty or jurisdiction of the Kingdom of Morocco.160 Thus the EU has actively concluded a tailor-made trade agreement for the purpose of applying it to territories occupied by Morocco. Hans Corell, former UN legal chief, criticized this position in an interview following the signing of the Agreement, in which he concluded that [The] protest against the Agreement is consistent with the opinion that I expressed in a statement to the Security Council161. In his statement, Cornell held that [it is]obvious that an agreementthat 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.162 Joe Borg, EU Fisheries Commissioner, defended the agreement and held in
158 159

For an early, initial analysis, see M. Hirsch, cited above fn. 1, at p. 588. Morocco-EU Fisheries Partnership Agreement, adopted by Council Regulation EC No 764/2006 of 22 May 2006 (OJ L141). The Agreement, covering the period from February 2007 to February 2011, is available at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:141:0004:0037:EN:PDF. For analysis, see Enrico Milano, The New Fisheries Partnership Agreement between the EC and the Kingdom of Morocco: Fishing Too Far South?, Anuario Espaol de Derecho Internacional (2006), available at: http://eng.gees.org. 160 Ibid., Articles 2(a), 11. 161 Swedish Radio, 22 May 2006, available at: http://www.wsrw.org/index.php?cat=128&art=975. 162 For the full document, see Ambassador Hans Corell, The Legality of Exploring and Exploiting Natural Resources in Western Sahara, at: http://www.havc.se/res/SelectedMaterial/20081205pretoriawesternsahara1.pdf. Corell concludes: Under all circumstances, 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, and the waters adjacent to the territory of Morocco, would violate international law.

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an interview that Morocco is the de facto administrator of Western Sahara. So, the Commission proposal is in conformity with the legal opinion of the United Nations issued in January 2002163 (i.e. the opinion that was delivered by Corell). Thus, contrary to the EU position adopted in relation to Israel and the West Bank, by providing benefits to EU vessels fishing in the territorial waters of Western Sahara under an agreement concluded with Morocco, the EU implicitly recognizes Moroccos de facto control over these territories. The EUs reliance on international law in order to justify such conduct seems highly unconvincing. 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, in the Moroccan context, 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, for political and economic interests, close relations with Morocco.165 As explained below, different EU Member States hold profoundly diverse positions towards the Western Sahara problem - northern states have constantly been raising doubts over the legality of the EU-Morocco relationship and initiating the Parliament and Commission resolutions discussed above. On the other hand, southern states, mostly Spain and France, have undertaken a more careful approach towards the subject. Another possible explanation is the lack of a strong Sahrawi political movement, representing the interests of the people of Western Sahara. The absence of such a political movement has caused a persistent lack of worldwide interest in the Sahrawi struggle for independence. In 1976, the abovementioned Polisario Front, a violent rebel movement established to promote independence for Western Sahara, declared the Sahrawi Arab Democratic Republic, a partially166 recognized state, claiming the

163

Commission under Fire over Morocco Fisheries Agreement, EUobserver, 9 March 2006, available at: http://euobserver.com/9/21092. 164 Legal Opinion of the Legal Service of the European Parliament, Doc. SJ-0085/06, 20 February 2006, at pp. 10-11. Available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=//EP//NONSGML+REPORT+A6-2006-0163+0+DOC+PDF+V0//EN. 165 For analysis, see Jordi Vaquer Fanes, The European Union and the Western Sahara Conflict: Managing the Colonial Heritage, in Nicola Casarini and Costanza Musu, eds., European Foreign Policy in an Evolving International System: The Road towards Convergence (Houndmills: Macmillan, 2007), 144. 166 For an up-to-date list of countries formally recognizing the Sahrawi Arab Democratic Republic, see

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entire territory of Western Sahara as its own. The Sahrawi Arab Democratic Republic, represented by a government-in-exile, was seated as an Organization of African Unity (OAU) member in 1984, causing Morocco to withdraw its membership in the Organization. However, that was evidently not enough. Ever since the 1991 establishment of the UN Mission for the Referendum in Western Sahara, 167 the Security Council has not discussed the issue of Western Sahara, besides the regular yearly renewal of the MINURSO mandate.168 In fact, no discussions at all were held on the subject between 1991 and 2003, a period in which the Security Council has rendered as many as fourteen resolutions on the situation in the occupied Palestinian territories.169 This situation may be considered as one of the explanations for the adoption of the practical approach in this scenario. The willingness of the EU political organs to pursue an approach vis--vis Morocco which is inconsistent with the EUs fundamental norms and with the jurisprudence of its judicial organ might erode the credibility, legitimacy and effet utile of Normative Power Europe.170 Indeed, 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, inconsistent and politically-economically motivated manner. The EU should thus cease its derogations from international legal norms and, more importantly, from its own norms, derogations that are being made in order to profit from short-term political-economic gains. The EUs normative agenda should instead be applied to the fullest extent possible in a consistent manner. This is particularly applicable to Israel. The EU already suffers in the State of Israel from what may be termed an external legitimacy deficit. Indeed, a sub-narrative that is prevalent in Israeli discourse is that EU policies towards Israel are reflective of European double

http://www.worldstatesmen.org/Western_Sahara.html. 167 United Nations Security Council Resolutions 621, 20.09.1988, UN Doc. S/Res/621 and 690, 29.04.1991, UN Doc. S/Res/690, available at: http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/541/48/IMG/NR054148.pdf?OpenElement. 168 For statistics, see Security Council Report project, at http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2833281. 169 Ibid., at http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2833281. 170 For analysis, see G. Harpaz, cited above fn. 142; Frank Decker, Governance beyond the NationState: Reflections on the Democratic Deficit of the European Union, Journal of European Public Policy 9, no. 2 (2002): 256-272; Andreas Follesdal and Simon Hix, Why There Is a Democratic Deficit in the EU: A Response to Majone and Moravcsik, Journal of Common Market Studies 44, no. 3 (2002): 533.

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standards.171 The double standards applied in relation to Israel and Morocco are only likely to reinforce that perception, thereby eroding the legitimacy of the EU as a Normative Power and preventing it from acting in such a manner. The EU position in the dispute can be perceived in Israel as legitimate only if the EU pursues the same line of action vis--vis goods exported from other territories occupied by other countries.172 Only then may the EU be seen in Israel as a silent discipline power on the near abroad.173

171 172

For analysis of these arguments, see G. Harpaz, cited above fn. 142, at pp. 101-102. For analysis, see M. Hirsch, cited above fn. 1. 173 Ole Weaver, Insecurity, Security and Asecurity in the West European Non-War Community, in Emanuel Adler and Michael Barnett, eds., Security Communities (Cambridge: Cambridge University Press, 1998), 99.

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

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8. References
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