Western Sahara Campaign UK v Secretary of State for International Trade & others
[2022] EWHC 3108 (Admin)
05 Dec 2022
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The Administrative Court has dismissed a claim concerning the UK’s trade agreement with Morocco. The Court found there was no scope for challenging the domestic implementation of the agreement by reference to principles of public international law where the domestic instruments mirrored the language of the international treaty.
The Court also addressed
various points of public international law on an obiter basis, including the
scope of the right to self-determination, whether the right to
self-determination is a peremptory norm of international law, and the scope of
the pacta tertiis principle (concerning the position of third parties
under the law of treaties).
In addition, the
Court considered the foreign act of state doctrine, finding that the claim
would not in any event have been justiciable: the Claimant’s case was underpinned
by an assertion that Morocco had acted wrongfully under public international
law and the public policy exception to the foreign act of state doctrine was
not engaged.
This was the
first claim challenging a post-Brexit trade agreement and will be of interest
to practitioners for its examination of the new statutory regime, the role of
international law in the domestic legal system, and its analysis of customary
international law.
Sir James Eadie KC and Paul Luckhurst of Blackstone Chambers (along with Belinda McRae of Twenty Essex) acted for the Secretary of State for International Trade, HM Treasury, and the Secretary of State for Foreign, Commonwealth and Development Affairs.
