The state of affairs is Western Sahara has already been addressed by quite a few authors (right here, right here and right here) and fashioned the topic of study in a plethora of worldwide boards. However, virtually 5 a long time have elapsed because the Worldwide Courtroom of Justice (ICJ) famously said in its Western Sahara Advisory Opinion that the individuals of the Territory should train significant self-determination ‘by the free and real expression’ of their will (para. 162). Not solely have the prospects for significant self-determination diminished even additional in mild of the latest shift in French overseas coverage, seemingly recognising the sovereignty of Morocco over Western Sahara, the Courtroom of Justice of the European Union (CJEU) is itself at the moment engulfed in one other essential authorized battle – Joined Instances C-779/21 P, Fee v Entrance Polisario and C-799/21 P, Council v Entrance Polisario. The choice of the Courtroom is imminent and can probably have a profound affect on European Union (EU) exterior relations in the direction of Morocco and Western Sahara, whereas additionally showcasing how the CJEU applies worldwide legislation – most notably the appropriate of peoples to self-determination. Therefore, whereas the discourse on Western Sahara throughout the EU could have been overshadowed by different latest world occasions, it shall absolutely kind one of many centrepieces of debate on EU exterior motion within the close to future.
Self-determination of Western Sahara and the European Union
To contextualise, within the Judgement of the Courtroom in case C-104/16 P, Council v Entrance Polisario, delivered on 21 December 2016, the Courtroom dominated that the Affiliation Settlement between the EU and the Kingdom of Morocco (Morocco), which entered into pressure in 2000, doesn’t apply to the territory of Western Sahara (para. 132). As this ruling prevented the preferential therapy of merchandise imported from Western Sahara into the EU, the EU and Morocco signed one other settlement in 2019, the intention of which was to expressly lengthen the preferential tariff therapy of the EU – Morocco Affiliation Settlement (additionally referred to as the Euro-Mediterranean Settlement) to merchandise traceable to Western Sahara. The Council authorized the settlement on behalf of the EU through Council Determination (EU) 2019/217 of 28 January 2019, setting the bottom for the appliance of the preferential tariff therapy regime.
Quickly afterwards, in April 2019, the Polisario Entrance, a motion recognised by the United Nations (UN) Basic Meeting because the consultant of the Sahrawi individuals since 1979 (A/RES/34/37, Level 7), filed an motion for annulment of the Council determination earlier than the Basic Courtroom. In its software, the Polisario Entrance argued that the Council didn’t respect the customary worldwide legislation (right here, paras. 152-160) proper of the Sahrawi individuals to self-determination and the relative impact of treaties provided that the consent of the individuals of Western Sahara to the settlement was not obtained correctly. The Basic Courtroom agreed (Case T‑279/19, Entrance Polisario v Council, paras. 390-391) and proceeded to annul the Council determination on 29 September 2021. Following the annulment, each the European Fee and the Council appealed the judgement of the Basic Courtroom earlier than the Courtroom, giving rise to Joined Instances C-779/21 P, Fee v Entrance Polisario and C-799/21 P, Council v Entrance Polisario.
In proceedings earlier than the Courtroom, the opinion of an Advocate Basic is sought in roughly 70% of instances (see EPRS Briefing, p. 4), with the present attraction proceedings being no exception. Advocate Basic Tamara Ćapeta delivered her opinion on the case on 21 March 2024. In her opinion, the Advocate Basic addressed the query whether or not Moroccan consent to the 2019 Settlement is in accordance with worldwide legislation because the settlement would immediately affect Western Sahara. The principle challenge to digest was whether or not Morocco is internationally permitted to formally consent to worldwide agreements that are binding upon and relevant in Western Sahara. The explanation for this analysis is that Western Sahara is a territory exterior the sovereignty of Morocco, however the place Morocco workouts efficient management for a number of a long time now. This provides rise to questions of competence to consent on Western Sahara’s behalf. Except Morocco could consent on behalf of Western Sahara to worldwide agreements relevant within the Territory, any agreements concluded between Morocco and third events concerning the Territory are null and void – as within the phrases of the Roman jurist Ulpian: nemo plus iuris advert alium transferre potest quam ipse habet (nobody can switch extra rights to a different than he himself has).
Following her analysis, the Advocate Basic proposed to uphold the attraction lodged by the Fee and the Council and thus to annul the Basic Courtroom’s judgement hanging the conclusion of the 2019 Settlement resulting from a perceived infringement of the appropriate of the Sahrawi individuals to self-determination (paras. 176, 199).
The opinion of Advocate Basic Ćapeta raises two essential concerns concerning the notion of consent of colonial peoples in relation to EU exterior motion: a) whose consent should EU establishments get hold of to enter into worldwide agreements imposing obligations for a colonial peoples involved, and b) the query of extra necessities for the validity of such consent.
Non-self-governing territories and the query of consent to treaties
It’s uncontested that the EU meant to conclude a bilateral settlement with Morocco in 2019 explicitly relevant to the territory of Western Sahara primarily based on, inter alia, the TFEU provisions on the EU’s widespread business coverage, particularly Article 207(4). By advantage of Articles 3(5) and 21(1) TEU, EU exterior motion shall be primarily based on the respect and strict observance of worldwide legislation (Tridimas and Konstantinidis, p. 32-33, 54). Therefore, additionally the widespread business coverage have to be performed inside this framework of values, rules and goals of EU exterior motion (Opinion 2/15 – Free Commerce Settlement with Singapore, paras. 142-147). Regarding the appropriate to self-determination of peoples, the Courtroom already defined in Council v Entrance Polisario that this proper constitutes a ‘legally enforceable proper erga omnes and one of many important rules of worldwide legislation’. Thus, the appropriate of peoples to self-determination have to be taken duly under consideration as part of the related authorized framework for EU agreements entered into with third States as per Articles 3(5) and 21(1) TEU (paras. 88-89) each time non-self-governing territories (NSGT) are affected.
The Courtroom famous, particularly concerning Western Sahara, that it’s important for the EU – in addition to in keeping with worldwide legislation – to respect the ‘separate and distinct’ standing of the Territory in its relations with Morocco (right here, paras. 90-93). On the premise of the appropriate of peoples to self-determination, the Courtroom inferred a transparent, exact and unconditional obligation for EU exterior motion in respect of Western Sahara: to make sure that the individuals of Western Sahara consent to any settlement relevant within the Territory involved (Entrance Polisario v Council, para. 281). Drawing inspiration from the Vienna Conference on the Legislation of Treaties (particularly Articles 34-36), the Basic Courtroom rightly inferred in Entrance Polisario v Council that, because the bilateral settlement did impose obligations on the individuals of Western Sahara, consent of Western Sahara have to be explicitly obtained (Case T‑279/19, paras. 316-323). Thus, the preliminary problem is to outline how EU establishments could get hold of such consent from a individuals, who haven’t but exercised a full measure of self-determination, however who shall be affected by EU worldwide agreements.
For NSGTs resembling Western Sahara, Article 73 of the UN Constitution stipulates that the administering energy which has assumed duty over that Territory should promote to the utmost the well-being of its inhabitants. In concreto, the Advocate Basic clearly expressed that each the Council and the Fee said that of their view, Morocco assumed the duties of the administering energy vis-à-vis Western Sahara. The underlying justification for this place follows from the truth that Morocco workouts efficient management over the overwhelming majority of the territory of Western Sahara (para. 151). Thus, since Western Sahara is neither part of the sovereign territory of Morocco (right here), and if Moroccan presence within the territory will not be deemed as occupation (noteworthy, the UN have labelled Moroccan presence in Western Sahara as occupation since 1979), the standing of an administering energy with efficient management over a NSGT stays (para. 155). Therefore, if Morocco might be legally categorised because the administering energy (as it’s from the attitude of EU establishments), this is able to entail that it’s competent to lawfully consent on behalf of Western Sahara to the conclusion of agreements with third States relevant within the Territory (right here, para. 145).
Bearing the aforementioned in thoughts, if Moroccan consent on behalf of Western Sahara suffices to ascertain binding worldwide obligations for the individuals of Western Sahara, it’s extremely probably that the Courtroom will observe the proposal of the Advocate Basic and conclude that the Council didn’t err in approving the 2019 EU – Morocco settlement extending the preferential tariff therapy of the EU – Morocco Affiliation Settlement to merchandise originating from Western Sahara. That is the case as it seems that the EU obtained the required consent in accordance with worldwide legislation, the observance of which it should assure (Case C-162/96, Racke v Hauptzollamt Mainz, para. 45). Specifically, since Morocco formally could consent to the settlement, the conclusion of the settlement seems prima facie so as.
However, if the Courtroom decides to refer the case again to the Basic Courtroom for renewed adjudication, which is a possible situation, in addition to one of many proposals of the Advocate Basic, the Basic Courtroom could rule on a vital side of the case that has been left unaddressed to this point: the query of extra necessities for the validity of consent given by the administering energy on behalf of a colonial peoples.
Validity of Moroccan consent on behalf of Western Sahara
This query goes past the formal competence of an administering energy to consent on behalf of a NSGT. Not solely should the administering energy involved be ready to consent lawfully, however consent should even be given in a way per worldwide legislation – together with the appropriate of peoples to self-determination. The latter calls for a substantive evaluation of the context and circumstances by which consent is expressed.
In addressing the validity of Moroccan consent on behalf of Western Sahara, the Basic Courtroom can be right to annul Council Determination (EU) 2019/217 approving the 2019 EU – Morocco Settlement as soon as extra, albeit on completely different grounds. It follows from the 2019 ICJ Advisory Opinion on the Authorized Penalties of the Separation of the Chagos Archipelago from Mauritius in 1965 that administering powers are obligated to finish the decolonisation technique of the administered NSGT ‘in a way per the appropriate of peoples to self dedication’ (para. 178). As already indicated, Article 73 of the UN Constitution calls for from administering powers to advertise to the utmost the well-being of the NSGT and to help the individuals involved in the direction of self-determination. Whether or not this technique of emancipation is carried out accordingly, that’s, with none motion prejudicial to the train of the free and real will of the individuals of the territory, the ICJ assesses with ‘heightened scrutiny’ (para. 172). It follows that the acts of the administering energy that are prejudicial for the completion of correct decolonisation of a NSGT infringe upon the appropriate of peoples to self-determination as recognised in worldwide legislation. Such acts embody, inter alia, consenting to a global settlement with third States relevant to the NSGT, if the precise impact of the settlement is to prejudge the attainment of self-determination. If that is so, the administering energy’s consent to the settlement on behalf of the related NSGT is internationally null and void.
Although the UN said on a number of events that it’s paramount to right away effectuate the switch of powers to the Sahrawi individuals (right here, additionally right here), Morocco’s place on Western Sahara is evident, arguing full sovereignty in relation to the territory. Thus, Morocco doesn’t think about itself to be sure by the ‘sacred belief’ obligation of Article 73 of the UN Constitution (right here, para. 186), nor by the norms on self-determination for NSGTs as interpreted by the ICJ. Worryingly, as already reported, the UN Particular Rapporteur on the state of affairs of human rights defenders accused Morocco of focusing on human rights activists and different actors talking out about Sahrawi self-determination. Equally, human rights organisations ring alarm bells over the (violent) repression of fundamental civil liberties by Moroccan authorities, in addition to the reliance on arbitrary arrest, rape and torture, geared toward silencing the voices of the Sahrawi. Final however not least, along with the official stance of Morocco concerning Western Sahara, the 2019 EU – Morocco Settlement in impact bestows upon Western Sahara obligations, whereas the rights stemming from the exploitation of pure assets of Western Sahara are contained, predominantly, to Morocco, as recognized by the Basic Courtroom in Case T‑279/19 (paras. 183-184, 316-323, 389). In such circumstances, the conclusion of the 2019 EU – Morocco Settlement relevant to Western Sahara visibly prejudges the prospects for significant self-determination of the Sahrawi individuals.
Concluding remarks
The 2019 EU – Morocco Settlement has solely received however a small probability to supply useful outcomes for the Sahrawi, whose pursuits Morocco is meant to additional pursuant to its obligations because the administering energy (as it’s from the viewpoint of the Fee and the Council). Quite the opposite, the settlement is about to profit Moroccan commerce, whereas leaving the Sahrawi individuals of Western Sahara empty handed. This results in the inevitable conclusion that each, Moroccan consent to the 2019 Settlement, and the appliance of the Settlement in Western Sahara thereof, even when throughout the competence of Morocco because the administering energy in Western Sahara, severely prejudge the prospects for Sahrawi self-determination. Thus, by advantage of the 2019 EU – Morocco Settlement, self-determination in Western Sahara will not be exercised ‘in a way per the appropriate of peoples to self dedication’ (Chagos Advisory Opinion, para. 178).
Consequently, as on this case Moroccan consent given on behalf of Western Sahara is invalid from the attitude of worldwide legislation, the Council determination approving the 2019 EU – Morocco Settlement can’t be upheld. By recognising the latter in case of recent proceedings, the Basic Courtroom would certainly contribute in the direction of the safeguarding of the appropriate to self-determination of the Sahrawi individuals and to the belated decolonisation technique of Western Sahara.
