Safeguarding Self-Determination of Western Sahara: All Eyes Set on the General Court

The situation is Western Sahara has already been addressed by numerous authors (here, here and here) and formed the subject of analysis in a plethora of international forums. Nevertheless, almost five decades have elapsed since the International Court of Justice (ICJ) famously stated in its Western Sahara Advisory Opinion that the people of the Territory must exercise meaningful self-determination ‘through the free and genuine expression’ of their will (para. 162). Not only have the prospects for meaningful self-determination reduced even further in light of the recent shift in French foreign policy, seemingly recognising the sovereignty of Morocco over Western Sahara, the Court of Justice of the European Union (CJEU) is itself currently engulfed in another important legal struggle - Joined Cases C-779/21 P, Commission v Front Polisario and C-799/21 P, Council v Front Polisario. The decision of the Court is imminent and will likely have a profound impact on European Union (EU) external relations towards Morocco and Western Sahara, while also showcasing how the CJEU applies international law – most notably the right of peoples to self-determination. Hence, while the discourse on Western Sahara within the EU may have been overshadowed by other recent global events, it shall surely form one of the centrepieces of debate on EU external action in the near future.

Self-determination of Western Sahara and the European Union

 To contextualise, in the Judgement of the Court in case C-104/16 P, Council v Front Polisario, delivered on 21 December 2016, the Court ruled that the Association Agreement between the EU and the Kingdom of Morocco (Morocco), which entered into force in 2000, does not apply to the territory of Western Sahara (para. 132). As this ruling prevented the preferential treatment of products imported from Western Sahara into the EU, the EU and Morocco signed another agreement in 2019, the aim of which was to expressly extend the preferential tariff treatment of the EU - Morocco Association Agreement (also called the Euro-Mediterranean Agreement) to products traceable to Western Sahara. The Council approved the agreement on behalf of the EU via Council Decision (EU) 2019/217 of 28 January 2019, setting the ground for the application of the preferential tariff treatment regime.

 Soon afterwards, in April 2019, the Polisario Front, a movement recognised by the United Nations (UN) General Assembly as the representative of the Sahrawi people since 1979 (A/RES/34/37, Point 7), filed an action for annulment of the Council decision before the General Court. In its application, the Polisario Front argued that the Council failed to respect the customary international law (here, paras. 152-160) right of the Sahrawi people to self-determination and the relative effect of treaties given that the consent of the people of Western Sahara to the agreement was not obtained properly. The General Court agreed (Case T‑279/19, Front Polisario v Council, paras. 390-391) and proceeded to annul the Council decision on 29 September 2021. Following the annulment, both the European Commission and the Council appealed the judgement of the General Court before the Court, giving rise to Joined Cases C-779/21 P, Commission v Front Polisario and C-799/21 P, Council v Front Polisario.

 In proceedings before the Court, the opinion of an Advocate General is sought in roughly 70% of cases (see EPRS Briefing, p. 4), with the current appeal proceedings being no exception. Advocate General Tamara Ćapeta delivered her opinion on the case on 21 March 2024. In her opinion, the Advocate General addressed the question whether Moroccan consent to the 2019 Agreement is in accordance with international law since the agreement would directly impact Western Sahara. The main issue to digest was whether Morocco is internationally permitted to formally consent to international agreements which are binding upon and applicable in Western Sahara. The reason for this evaluation is that Western Sahara is a territory outside the sovereignty of Morocco, but where Morocco exercises effective control for several decades now. This gives rise to questions of competence to consent on Western Sahara’s behalf. Unless Morocco may consent on behalf of Western Sahara to international agreements applicable in the Territory, any agreements concluded between Morocco and third parties regarding the Territory are null and void – as in the words of the Roman jurist Ulpian: nemo plus iuris ad alium transferre potest quam ipse habet (no one can transfer more rights to another than he himself has).

Following her evaluation, the Advocate General proposed to uphold the appeal lodged by the Commission and the Council and thus to annul the General Court’s judgement striking the conclusion of the 2019 Agreement due to a perceived infringement of the right of the Sahrawi people to self-determination (paras. 176, 199).

 The opinion of Advocate General Ćapeta raises two important considerations regarding the notion of consent of colonial peoples in relation to EU external action: a) whose consent must EU institutions obtain to enter into international agreements imposing obligations for a colonial peoples concerned, and b) the question of additional requirements for the validity of such consent.

Non-self-governing territories and the question of consent to treaties

 It is uncontested that the EU intended to conclude a bilateral agreement with Morocco in 2019 explicitly applicable to the territory of Western Sahara based on, inter alia, the TFEU provisions on the EU’s common commercial policy, in particular Article 207(4). By virtue of Articles 3(5) and 21(1) TEU, EU external action shall be based on the respect and strict observance of international law (Tridimas and Konstantinidis, p. 32-33, 54). Hence, also the common commercial policy must be conducted within this framework of values, principles and objectives of EU external action (Opinion 2/15 - Free Trade Agreement with Singapore, paras. 142-147). Concerning the right to self-determination of peoples, the Court already explained in Council v Front Polisario that this right constitutes a 'legally enforceable right erga omnes and one of the essential principles of international law'. Thus, the right of peoples to self-determination must be taken duly into account as a part of the relevant legal framework for EU agreements entered into with third States as per Articles 3(5) and 21(1) TEU (paras. 88-89) whenever non-self-governing territories (NSGT) are affected.

 The Court noted, especially regarding Western Sahara, that it is essential for the EU – as well as in line with international law – to respect the 'separate and distinct' status of the Territory in its relations with Morocco (here, paras. 90-93). On the basis of the right of peoples to self-determination, the Court inferred a clear, precise and unconditional obligation for EU external action in respect of Western Sahara: to ensure that the people of Western Sahara consent to any agreement applicable in the Territory concerned (Front Polisario v Council, para. 281). Drawing inspiration from the Vienna Convention on the Law of Treaties (especially Articles 34-36), the General Court rightly inferred in Front Polisario v Council that, as the bilateral agreement did impose obligations on the people of Western Sahara, consent of Western Sahara must be explicitly obtained (Case T‑279/19, paras. 316-323). Thus, the initial challenge is to define how EU institutions may obtain such consent from a people, who have not yet exercised a full measure of self-determination, but who will be affected by EU international agreements.

 For NSGTs such as Western Sahara, Article 73 of the UN Charter stipulates that the administering power which has assumed responsibility over that Territory must promote to the utmost the well-being of its inhabitants. In concreto, the Advocate General clearly expressed that both the Council and the Commission stated that in their view, Morocco assumed the responsibilities of the administering power vis-à-vis Western Sahara. The underlying justification for this position follows from the fact that Morocco exercises effective control over the vast majority of the territory of Western Sahara (para. 151). Thus, since Western Sahara is neither a part of the sovereign territory of Morocco (here), and if Moroccan presence in the territory is not deemed as occupation (noteworthy, the UN have labelled Moroccan presence in Western Sahara as occupation since 1979), the status of an administering power with effective control over a NSGT remains (para. 155). Hence, if Morocco can be legally classified as the administering power (as it is from the perspective of EU institutions), this would entail that it is competent to lawfully consent on behalf of Western Sahara to the conclusion of agreements with third States applicable in the Territory (here, para. 145).

 Bearing the aforementioned in mind, if Moroccan consent on behalf of Western Sahara suffices to establish binding international obligations for the people of Western Sahara, it is highly likely that the Court will follow the proposal of the Advocate General and conclude that the Council did not err in approving the 2019 EU - Morocco agreement extending the preferential tariff treatment of the EU - Morocco Association Agreement to products originating from Western Sahara. This is the case as it appears that the EU obtained the required consent in accordance with international law, the observance of which it must guarantee (Case C-162/96, Racke v Hauptzollamt Mainz, para. 45). Namely, since Morocco formally may consent to the agreement, the conclusion of the agreement appears prima facie in order.

 Nevertheless, if the Court decides to refer the case back to the General Court for renewed adjudication, which is a probable scenario, as well as one of the proposals of the Advocate General, the General Court may rule on a crucial aspect of the case that has been left unaddressed so far: the question of additional requirements for the validity of consent given by the administering power on behalf of a colonial peoples.

Validity of Moroccan consent on behalf of Western Sahara

 This question goes beyond the formal competence of an administering power to consent on behalf of a NSGT. Not only must the administering power concerned be in a position to consent lawfully, but consent must also be given in a manner consistent with international law – including the right of peoples to self-determination. The latter demands a substantive assessment of the context and circumstances in which consent is expressed.

 In addressing the validity of Moroccan consent on behalf of Western Sahara, the General Court would be correct to annul Council Decision (EU) 2019/217 approving the 2019 EU - Morocco Agreement once more, albeit on different grounds. It follows from the 2019 ICJ Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 that administering powers are obligated to complete the decolonisation process of the administered NSGT ‘in a manner consistent with the right of peoples to self determination’ (para. 178). As already indicated, Article 73 of the UN Charter demands from administering powers to promote to the utmost the well-being of the NSGT and to assist the people concerned towards self-determination. Whether this process of emancipation is carried out accordingly, that is, without any action prejudicial to the exercise of the free and genuine will of the people of the territory, the ICJ assesses with ‘heightened scrutiny’ (para. 172). It follows that the acts of the administering power which are prejudicial for the completion of proper decolonisation of a NSGT infringe upon the right of peoples to self-determination as recognised in international law. Such acts include, inter alia, consenting to an international agreement with third States applicable to the NSGT, if the actual effect of the agreement is to prejudge the attainment of self-determination. If this is the case, the administering power’s consent to the agreement on behalf of the relevant NSGT is internationally null and void.

 Despite the fact that the UN stated on several occasions that it is paramount to immediately effectuate the transfer of powers to the Sahrawi people (here, also here), Morocco's position on Western Sahara is clear, arguing complete sovereignty in relation to the territory. Thus, Morocco does not consider itself to be bound by the ‘sacred trust’ obligation of Article 73 of the UN Charter (here, para. 186), nor by the norms on self-determination for NSGTs as interpreted by the ICJ. Worryingly, as already reported, the UN Special Rapporteur on the situation of human rights defenders accused Morocco of targeting human rights activists and other actors speaking out about Sahrawi self-determination. Similarly, human rights organisations ring alarm bells over the (violent) repression of basic civil liberties by Moroccan authorities, as well as the reliance on arbitrary arrest, rape and torture, aimed at silencing the voices of the Sahrawi. Last but not least, in addition to the official stance of Morocco regarding Western Sahara, the 2019 EU - Morocco Agreement in effect bestows upon Western Sahara obligations, while the rights stemming from the exploitation of natural resources of Western Sahara are contained, predominantly, to Morocco, as identified by the General Court in Case T‑279/19 (paras. 183-184, 316-323, 389). In such circumstances, the conclusion of the 2019 EU – Morocco Agreement applicable to Western Sahara visibly prejudges the prospects for meaningful self-determination of the Sahrawi people.

Concluding remarks

 The 2019 EU – Morocco Agreement has only got but a small chance to produce beneficial results for the Sahrawi, whose interests Morocco is supposed to further pursuant to its obligations as the administering power (as it is from the point of view of the Commission and the Council). On the contrary, the agreement is set to benefit Moroccan trade, while leaving the Sahrawi people of Western Sahara empty handed. This leads to the inevitable conclusion that both, Moroccan consent to the 2019 Agreement, and the application of the Agreement in Western Sahara thereof, even if within the competence of Morocco as the administering power in Western Sahara, seriously prejudge the prospects for Sahrawi self-determination. Thus, by virtue of the 2019 EU – Morocco Agreement, self-determination in Western Sahara may not be exercised ‘in a manner consistent with the right of peoples to self determination’ (Chagos Advisory Opinion, para. 178).

 Consequently, as in this case Moroccan consent given on behalf of Western Sahara is invalid from the perspective of international law, the Council decision approving the 2019 EU - Morocco Agreement cannot be upheld. By recognising the latter in case of fresh proceedings, the General Court would indeed contribute towards the safeguarding of the right to self-determination of the Sahrawi people and to the belated decolonisation process of Western Sahara.