The Western Sahara conflict faces new scrutiny in the EU. The CJEU’s imminent ruling on EU-Morocco trade deals may redefine EU external relations, raising legal questions on sovereignty and international law.
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 ?apeta 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 ?apeta 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.
Read more https://www.europeanlawblog.eu/pub/s9iwy00f/release/1
