High Court grants permission to challenge domestic implementation of UK-Morocco Association Agreement

29 Jun 2021

The High Court has granted Western Sahara Campaign UK (“WSCUK”) permission to challenge the grant of preferential tariff treatment to goods from Western Sahara but designed by Morocco as “Moroccan” for purposes of the UK-Morocco Association Agreement.

WSCUK contends that the provisions of the agreement which purport to extend to Western Saharan resources are contrary to the principle of self-determination and treaty law prohibiting the imposition of obligations on a third party without consent.

WSCUK contends that the provisions of the agreement (and secondary legislation incorporating the relevant terms of that agreement) which purport to apply to Western Sahara must be read down. If such a compatible interpretation is not possible, WSCUK contends that domestic implementing legislation giving effect to the UK-Morocco Association Agreement must be treated as ultra vires Sections 9 and 28 of the Taxation (Cross-border Trade) Act 2018, since it fails to “give effect” to the treaty obligations and to have regard to international obligations in doing so, as required by the enabling act.

The central issue at the permission hearing was whether the claim was barred by the foreign act of state doctrine. In a reasoned permission decision, the High Court rejected the argument that the claim was non-justiciable on grounds of foreign act of state, finding that it was at least arguable that the claim falls within the public policy exception to the doctrine.

This is the first occasion on which the domestic courts have been called upon to interpret one of the UK’s new post-Brexit trade agreements and rule on the legality of the domestic implementation of that agreement by reference to principles of international law.

Conor McCarthy has been instructed by Leigh Day for the Claimant in this case.