Tag: Morocco

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Landmark judgment in the making. High Court refers to Luxembourg, demarcation of Moroccon territory viz Saharawi.

How exactly is the EU bound by public international law? What is the justiciability of acts of foreign sovereign nations in EU courts? To what extent can an individual rely on customary or other sources of public international law, in national courts or at the CJEU?  All of these questions often puzzle non-lawyers (if something is illegal due to a higher rule, how can the lower rule still be in existence) and lawyers alike. At the EU level, things are complicated due to the hybrid (OK: sui generis) nature of the EU, and its complicated relationship with international law.

In Western Sahara Campaign UK, claimant is an independent voluntary organisation founded in 1984 with the aim of supporting the recognition of the right of the Saharawi people of Western Sahara to self-determination and independence and to raise awareness of the unlawful occupation of the Western Sahara. Defendants are the Inland Revenue, challenged for the preferential tariff given on import to the UK of goods that are classified as being of Moroccan origin but in fact originate from the territory of Western Sahara. The second challenge is brought against the Secretary of State for the Environment and Rural Affairs (DEFRA) in respect of the intended application of the EU-Morocco Fisheries Partnership Agreement to policy formation relating to fishing in the territorial waters of Western Sahara.

Essentially, it is claimed that defendants ought not to apply the relevant European agreements for these are, arguably, in violation of public international law. Claimant contends that Morocco has annexed the territory of Western Sahara and claims it as part of its sovereign territory despite decisions of the United Nations and the International Court of Justice (ICJ) that the people of Western Sahara have the right to self-determination. Accordingly it is said that Morocco’s occupation is in breach of the principles of international law and the Charter of the United Nations.

Under EU law, only the CJEU can establish the invalidity of EU law. Blake J decided to send the case to Luxembourg for preliminary review. Defendants opposed such reference primarily because they submit that the issues raised by the claimant are matters of public international law that the CJEU will decline to adjudicate on in the present circumstances. Precedent which they relied on is not unequivocal, however. This case therefore will be an opportunity for the CJEU (Grand Chamber, one would imagine) to clarify the relationship between EU and public international law.

Geert.

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Qualification, lex fori and adoption from Morocco. Belgian court sinks the kafala ship.

Update November 2015: in December 2014, the ECtHR held in CHBIHI LOUDOUDI that the ECHR did not come to the rescue under either Article 8 or 14. For a similar case, see SM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109, reviewed here and (update 20 April 2017) here (following UKSC appeal). Human rights law arguments in that case seem to have fallen down the wayside, though.

In March 2013 (only brought to media attention recently), the Court of Appeal at Gent reversed a decision by a lower court which had granted an adoption ‘light’ of a Moroccan child by a Belgian couple. In line with Belgian conflicts law (Article 68 WIPR), whether the adopted consents (typically: via its parents or a guardian) is subject to the law of the child’s habitual residence immediately prior to its transfer for adoption (or simply its habitual residence if there is no such transfer). However, that same article makes Belgian law gazump foreign law in the event of that foreign law either not requiring such consent, or not recognising adoption at all. This has often been called a lack of respect for that foreign law, among others because it necessarily requires Belgian courts to assess the assimilation of foreign ‘adoption’ institutions, with Belgium’s own views on adoption.

In the case at issue, Morocco’s ‘kafala’ was not considered to be equal to adoption. That’s because, well, it isn’t. It is more akin to guardianship or custody in advance of adoption. Parents signal their inability or unwillingness to look after a child. Followed by a court-registered form of fostering. It is quite easy to find differences between kafala and ‘adoption’ as known under Belgian law. Kafala is reversible. Kinship is not created between foster parents and child.

Belgian law therefore applied to the issue of consent. The father had not consented: it was clear that the man named on the child’s birth certificate was fictitious. The Moroccan court which was involved in the establishment of kafala seemed to have acknowledged as much and did not seem to have considered this to be an obstacle to the proceedings. This was not a cloak and dagger adoption. The eventual purpose of the proceedings, adoption in Belgium, was clear to the Moroccan court. For the Belgian court to stick to the requirement of paternal consent in spite of the Moroccan court’s willingness to see beyond that, seems a bit obnoxious.

The Court of Appeal moreover added that the necessary preliminary reports from Morocco, which the relevant authorities in Belgium ought to have sought, where not available. The Court’s line of reasoning suggests that even had such reports been available, adoption still could have not gone ahead. This reference therefore seems more of an attempt to share the blame. This case, the Court seems to suggest, is not just about dura lex sed lex; it is also about sloppy preparation.

Adoptions from Morocco have now been put on hold. In a final argument, the Court rejected any proposition that refusal of adoption would infringe the child’s human rights. The interests of the child evidently need to be taken into account in adoption decisions. However there is no human right to adoption.

Geert.

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