Western Sahara Campaign UK has judicial review hearing over lawfulness of UK-Morocco trade agreement

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A legal challenge to the UK-Morocco trade agreement will be heard in the High Court from Wednesday 5 October


The Western Sahara Campaign UK (WSCUK) argues that the UK-Morocco Association Agreement (UKMAA) is unlawful because it extends to goods originating from Western Sahara, which places the Department for International Trade and the UK Treasury in breach of their obligations under international law.
WSCUK, represented by law firm Leigh Day, says a trade agreement cannot be concluded by Kingdom of Morocco on behalf of Western Sahara because Morocco does not have the right to do so. Their case relies on the fact that the status of Western Sahara under international law is one of a Non-Self-Governing territory (as designated by the UN), not sovereign land of Morocco.

The agreement broadly mirrors the EU-Morocco Association Agreement. In 2019 the UK High Court confirmed the ruling by the Court of Justice of the European Union which recognised that a previous version of the EU agreement could not be applied to the territory of Western Sahara, nor could Morocco be understood to exercise jurisdiction over the territory, as this would contravene the principle of self-determination and the rule of international law that a treaty may not impose rights or obligations on a third party without that party’s consent.   
The legal challenge due to be heard at this three-day hearing specifically relates to the Customs Tariff (Preferential Trade Arrangements) (EU Exit) Regulations 2020 and the Customs (Tariff Quotas) (EU Exit) Regulations 2020. The 2020 Regulations are statutory instruments made by the Treasury under Section 9 of the Taxation (Cross-Border) Trade Act 2018 and brought into force the Morocco Preferential Tariff and the Morocco Origin Reference Document, which extend the preferential rate of import duty to goods from Western Sahara and give effect to the UKMAA.
WSCUK says the UKMAA applies only to goods lawfully in the control of Morocco, which those originating in Western Sahara are not.
John Gurr of Western Sahara Campaign UK said:
“The UK government has not sought the consent of the Saharawi people to exploit their resources. This agreement serves the interests of the Moroccan occupation; granting trade preferences to goods produced under occupation makes the UK complicit in the suffering of the Saharawi people.”
Leigh Day lawyer Erin Alcock said:
“This is an important case as it is asking the court to consider the legality of a post-Brexit trade agreement, in circumstances where there is serious concern the signatories to that agreement, including the UK Government, have not acted in accordance with their obligations under international law.”
Victoria Wakefield QC of Brick Court Chambers and Conor McCarthy of Monckton Chambers are instructed in this matter.

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