In December 2015, the General Court (GC) of the European Union (EU) delivered its judgment in Case T-512/12, or Front Polisario v Council (currently under appeal before the European Court of Justice),1 an action for annulment brought by the national liberation movement Front Polisario2 against Council Decision 2012/497/EU, which approved the conclusion of an agreement between the EU and Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products and introduced new protocols and amendments to the 2000 EU-Morocco Association Agreement.3 The main point of contention was the application of the contested agreement to the territory of Western Sahara, which is largely under the effective control of Morocco but is not internationally recognised as part of the Moroccan State and instead remains on the United Nations (UN) list of non-self-governing territories to be decolonised.4
The Front Polisario, a movement created in 1973 fighting for the liberation of the Sahrawi people and against the foreign occupation of Western Sahara, claimed infringement of several norms of EU law and international law, most notably breaches of fundamental rights as protected by Article 67 Treaty on the Functioning of the EU (TFEU)5 and Article 6 Treaty on European Union (TEU),6 infringement of international agreements concluded by the EU, the right to self-determination, essential provisions of international humanitarian law, and that the contested act was unlawful as a result of the ‘the illicit nature of the European Union’s conduct under international law’.7 Although the GC seemed to agree in its judgment that the application of the agreement to Western Sahara was unlawful, annulling the Decision insofar as it applied to Western Sahara, the GC’s legal argumentation was not quite as clear. In substance, the GC seemed to apply international legal obligations, including those of Morocco towards the Sahrawi people under the right to self-determination and the laws of administration/occupation, but, in its argumentation the Court invoked the EU’s failure to consider the fundamental rights of the inhabitants of the territory as the Council’s ‘manifest error of assessment’, thus establishing the Council’s violation of its obligation to consider all the relevant elements of the case before adopting its decision.
The case thus brings with it a number of questions relating to the EU, EU law, and international law: Is international law binding on the EU, and if so, what is its effect both on the EU legal order and on the EU institutions? Can an individual —or, as in Front Polisario, an ‘autonomous entity’ not a legal person— invoke these international norms, and if so, before which Court and through which kind of proceedings? This article examines these questions from both a general and a specific viewpoint, using (the answers to) the general questions to analyse the Front Polisario case and the reasoning of the GC. To this end, the article first provides an overview of the legal and historical background of the Western Sahara dispute (Part II), moves on to the binding force and effect of international law on the EU and the EU legal order and the applicable principles of international law (Part III), then discusses the ramifications of EU’s international agreements’ incompatibility with international and/or EU law (Part IV), and concludes with some considerations and future prospects of the Western Sahara situation and the EU’s role and obligations (Part V).
II. Background of the Dispute
A. Historical Background
In 1963, the UN Special Committee on Decolonization declared Western Sahara,8 a Spanish colony since 1884,9 a ‘non-self-governing territory to be decolonised’ in accordance with UN General Assembly (UNGA) Resolution 1514 (XV).10 Two years later, the UNGA adopted Resolution 2072 (XX), in which it requested Spain, as the administering power, to decolonise the territory.11 In subsequent resolutions, the UNGA repeatedly invited Spain to organise a referendum on the self-determination of the Sahrawi people under the auspices of the UN.12 However, when the Spanish administration eventually announced to organise a referendum in the first half of 1975,13 Morocco and Mauritania put a spoke in the wheel by raising historical claims towards the territory of Western Sahara.14 Upon their request, the UNGA decided to obtain an advisory opinion of the International Court of Justice (ICJ) relating to the Moroccan-Mauritanian claims over Western Sahara and potential implications on the issue of self-determination of the Sahrawi population.15 The Court found that neither Morocco nor Mauritania could claim any territorial sovereignty over the territory of Western Sahara, and negated the existence of legal ties of such a nature that might affect the decolonisation or the right to self-determination of the peoples of Western Sahara.16 Nonetheless, Morocco saw its claims towards Western Sahara confirmed by the Court,17 and acted accordingly: On 6 November 1975 Morocco launched the so-called ‘Green March’, a march of 350,000 Moroccans, then a number four times the size of the Sahrawi population,18 into the territory of Western Sahara.19 Although after several days the marchers were pulled back to a camp in Tarfaya, about thirty kilometres from the Western Saharan border,20 the prospect of an open conflict with Morocco, with all its domestic and geopolitical ramifications, eventually prompted Spain to reach an agreement with Morocco and with Mauritania,21 which had aligned with Morocco in 1974/1975.22 In the so-called ‘Declaration of Principles on Western Sahara’ Spain agreed to terminate its presence by the end of February 1976 and to transfer its powers and responsibilities as the administering power of the territory to an interim tripartite administration, composed of a Spanish, a Moroccan and a Mauritanian representative.23 Following the Declaration, Spain began to gradually withdraw its forces and administrative personnel, with Morocco and Mauritania simultaneously establishing a military and administrative presence in order to avoid a power vacuum.24 Once Spain had completely terminated its presence in Western Sahara,25 the Front Polisario seized the opportunity and proclaimed the Saharawi Arab Democratic Republic (SADR) on a small strip of land in the east of the territory.26 By then the Front Polisario, which had opposed Spain’s rule since its creation in 1973, fought its guerrilla war against Moroccan and Mauritanian occupation.27 Mauritania, financially and militarily troubled by administering and defending ‘its’28 share of the territory,29 retreated in August 1979, by concluding a peace treaty with Front Polisario in which it relinquished all of its claims towards Western Sahara.30 For Morocco, who disregarded the Mauritanian-Sahrawi peace treaty and extended its control to the territory abandoned by Mauritania,31 the so-called Western Sahara War lasted until a ceasefire came into effect in September 1991 as part of a ‘Settlement Plan’ the UN and the Organisation of African Unity had brokered between Morocco and the Front Polisario in a joint effort of good offices.32 In order to implement the plan, particularly the holding of a referendum on the future of the territory, the Security Council established a UN Mission for the Referendum in Western Sahara (MINURSO).33 Nevertheless, the efforts to organise a referendum have foundered to this day, mainly due to a stalemate regarding the preparation of the list of people eligible to vote.34
B. The Current Status of Western Sahara
Geographically, Western Sahara is divided by a 2,700 km long sand berm stretching the length of the territory, which marks the frontier between the territory held by Morocco —located west of the berm and roughly comprising 80 per cent of Western Sahara— and the territory under the control of Front Polisario, claimed as the territory of the SADR.35 Legally speaking, the Moroccan presence has not altered the status of the Western Sahara as a non-self-governing territory,36 to which the principle of self-determination applies and which, accordingly, should be decolonised as outlined in UNGA Resolutions 1514 (XV) and 1541 (XV).37 Consequently, the people of Western Sahara must be given the opportunity to freely express their wishes regarding the future status of Western Sahara,38 including the option of forming an independent state.39 The Declaration of Principles on Western Sahara had no impact on these findings, as it neither transferred sovereignty over Western Sahara to Morocco or Mauritania, nor did it confer upon them the status of an administering power, a status which Spain could not have transferred singlehandedly.40 It is therefore only consistent that the UN has always regarded Spain as the administering power of Western Sahara,41 even though Spain considers itself exempt from any international legal responsibilities relating to the administration of Western Sahara and therefore does not transmit information under Article 73(e) UN Charter.42 However, this does not alter the fact that Morocco exercises effective control over most of the territory of Western Sahara, which leads to the question of Morocco’s status in relation to Western Sahara. Any possible answer to this question strongly depends on how one assesses the historical events surrounding Morocco’s seizure of power over Western Sahara —a task beyond the scope of this paper. We therefore limit ourselves to the two main approaches towards Morocco’s status relating to the parts of Western Sahara it controls, whereby Morocco is characterised as either a de facto administering power43 or as an occupying power.44 A third approach, advocated solely by Morocco, according to which Western Sahara forms an integral part of the Moroccan State,45 has to be rejected for two reasons: Firstly, Morocco has never been the territorial sovereign of Western Sahara,46 the consequence being that Morocco establishing military and administrative control cannot be qualified as a ‘reintegration’ of the Western Sahara into the Moroccan State.47 And secondly, a non-self-governing territory, such as Western Sahara, has a status separate and distinct from the territory of the State administering it, a status which may only be modified or cease to exist as a result of the exercise of the right to self-determination of the peoples of the territory concerned.48
For the case at hand, as will be shown later, the classification of Morocco as a de facto administering or as an occupying power does not substantially alter the assessment of the legality of the contested EU-Morocco Agreement.
III. The European Union’s International Agreements and International Law
A. The Binding Force of International Law
Traditionally, international law was conceived as a system of rules governing the rights and duties of sovereign States and their international relations. In the last decades, however, international organisations have been exercising more and more powers, and are increasingly influencing and regulating international and domestic topics and issues. It is generally accepted that international organisations, as subjects of international law, are ‘bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’.49 Although at first sight a clear statement confirming the binding application of international law to international organisations, on closer examination it becomes clear that some uncertainties remain. Considering that various rules of international law, especially those tailored to States and their specific rights and duties, are not relevant for and cannot be applied to international organisations,50 the question remains which rules are binding on international organisations, and in which circumstances.
When it comes to international law, the European Union (EU) is considered both to be a ‘normal’ international organisation —in the sense that it is created by international treaties as a subject of international law with international legal personality51— and a ‘special’ or sui generis international organisation, based on the ‘autonomous’ character of the EU legal order and the special role of EU law in the Member State national legal order.52 The EU Treaties (TEU and TFEU) contain multiple references to international law, stating for example that the Union shall contribute ‘to the strict observance and development of international law’ in Article 3(5) TEU, or that its external action shall be guided by respect for the principles of the UN Charter and international law in Article 21(1) TEU, with Article 21(2) TEU declaring the consolidation of and support for international law to be an objective of EU external action. Article 21(3) TEU determines that the principles and objectives of Article 21 TEU apply to the Union’s external action as a whole, which is confirmed by several other provisions, e.g. Article 205 TFEU, which stipulates that the principles and objectives of Article 21 TEU also guide the EU’s external action under the Common Commercial Policy, the cooperation with third States and humanitarian aid, and international agreements.53 Additionally, Article 216(2) TFEU establishes that international agreements concluded by the EU are binding upon its institutions, and, according to the Court form ‘an integral part of Union law’.54 Even though, in comparison, Article 3(5) and 21(1) TEU may not be as clear on the binding force of international law other than international treaties, the Court has confirmed that the EU is in principle bound by international law, first in the International Fruit Company case of 1972,55 and in several other cases since, whereby the Court confirmed that this includes customary international law.56
Because of this generally favourable position towards international law, the EU legal order and the ECJ have often been described as international law friendly, or völkerrechtsfreundlich, and the relationship between the European legal order and international law has widely been characterised as ‘monist’.57 This ‘monist’ conception, traditionally considered to encompass direct effect and primacy of international law within a domestic legal order, in EU practice translated into the acceptance of international agreements as an integral part of the EU legal order58 and into granting international law a rank between primary and secondary law,59 acknowledging the invocability of international law to review the legality of EU acts.60 More recent case law, notably the Intertanko and Kadi cases,61 and also elements of older Court decisions, paints a more complex picture, leading authors to suggest that the ‘pure’ monist approach might have been ‘contaminated’62 and that the Court seems to employ a more ‘dualist’ approach towards international law.63 In short, then, although it has been definitively established that the EU is indeed bound by international law, the Court may reserve the right to decide on the validity, effect and applicability of international law in the EU legal order on a case-by-case basis, especially when there might be a conflict with EU constitutional principles.64 Or as Klabbers puts it:
The better view would seem to be that instead of being particularly völkerrechtsfreundlich in general, the EU legal order is mostly friendly in its disposition to international law when being so coincides with, or even strengthens, the protection of its own legal order: this would help explain the positive attitude towards association agreements. But when international law threatens, or even only potentially threatens, the EU legal order, the fences go up and the wagons are circled.65
B. International Law and EU Decision-making
With the binding force of international law on the EU established and its applicability in the EU legal order explored above, we turn to the question of the role international law plays when it comes to EU organs concluding international agreements or adopting acts related to the implementation of these agreements. In the Front Polisario case, the applicant raised multiple pleas alleging the unlawfulness of the Council act based on infringement of norms of international law, including the right to self-determination and essential provisions of international humanitarian law.66 These pleas raise a more general question worth asking, namely that of the effect of international law on the decision-making and decision-taking abilities of EU organs. Also here, the ECJ case law provides some general guidance, by stating that the EU (and before it the European Community) ‘must respect international law in the exercise of its powers’67 and that it must comply with international law when adopting acts.68 After adoption, an EU act ‘must be interpreted, and its scope delimited, in light of the relevant rules [of international law]’.69 Similarly, the primacy of international law over secondary EU law requires that this secondary legislation be, as far as possible, in conformity with international rules.70 In summary, it can be said that effectively, international law functions as a limit to the scope of the EU’s competences, and that the EU and its organs have to consider (conformity with) their obligations under international law when exercising their powers, e.g. when concluding international agreements with third States such as the agreements concluded between the EU and Morocco.71
IV. The EU’s International Agreements versus its Obligations under International Law
A. Judicial Review
1. Procedural Aspects: Legal Avenues and Standing before EU Courts
The previous sections discuss the more general questions of the binding force of international law on the EU, and the implications of these obligations for EU action, focusing more generally on the (il)legality of EU action. A separate matter, however, is the question of who can invoke and allege the illegality of EU action, specifically the conclusion of international agreements, before which Court, and in turn, what is the scope of review before the competent Court. In contrast to the ICJ, which relies for its jurisdiction on the consent of the parties currently provided only by a limited number of UN Member States,72 the ECJ —and to a lesser extent the GC— has been given broad jurisdictional powers and exercises judicial review over the EU, its institutions and its Member States.73 When it comes to reviewing the EU international agreements on their conformity with international law, there are two main mechanisms of judicial review available to the ECJ and GC:74 The action for annulment of Article 263 TFEU and the preliminary rulings procedure of Article 267 TFEU. As illustrated by the Front Polisario case, actions for annulment allow the ECJ and GC to review the legality of certain acts of EU institutions, including acts approving the conclusion of an international agreement.75 Similarly, the preliminary rulings procedure allows the ECJ (and, in theory, the GC)76 to rule on the interpretation of the Treaties, as well as on the validity and interpretation of acts of the Union. Coincidentally, the possibility of review by way of a preliminary ruling has been triggered by the Western Sahara Campaign UK, an NGO supporting the Sahrawi people’s claim to self-determination and independence, by lodging an application before the English High Court of Justice77 raising doubts about the legality of the EU-Morocco Association Agreement and the Fisheries Partnership Agreement (EU-Morocco FPA),78 which prompted the English Court to refer the matter to the Court.79
Whereas preliminary references are made by the domestic courts and tribunals of the EU Member States, actions for annulment can be brought by Member States, designated EU institutions and, in specific circumstances, by natural and legal persons. For individuals, in order to be able to institute proceedings —in addition to fulfilling the general requirements relating to the author and the type of acts— the disputed act must be addressed to them, be of direct and individual concern to them, or must be a regulatory act (not entailing implementation measures) of direct concern to them.80 Also in this regard the Front Polisario case proved interesting, with the GC stating that, in specific cases, an entity could be considered a legal person in the sense of Article 263 TFEU even when it is not incorporated as a legal person under the law of an EU Member State or a third State.81 Although the GC referred to multiple aspects of Front Polisario’s actions on the international plane, including its participation in UN-led negotiations and Front Polisario signing a peace agreement with ‘internationally recognised State’ Mauritania,82 the Court did not explicitly discuss Front Polisario’s possible legal personality under international law.83 Instead, the GC opined that the Front Polisario, whose incorporation under Moroccan law would be practically impossible,84 should be considered a legal person since it has the ‘necessary independence’ to act as a responsible entity in legal relationships, referring to Front Polisario’s statutes and structure and its role as a party to the Western Sahara dispute.85 Similarly, the GC considered the ‘direct and individual concern’ requirement to be fulfilled, noting that provisions of the contested decision produce effects on the legal situation of the territory of Western Sahara and that these effects directly concern the Front Polisario, since the definitive international status of the territory is yet to be determined in international negotiations in which the Front Polisario is the ‘only other participant’.86 In this case, the GC thus seems to slightly broaden the Court’s interpretation of standing before the Court. Although it is not uncommon for the Court to consider ‘autonomous entities’ to be legal persons in the sense of Article 263 TFEU,87 the Court generally uses a strict interpretation of the requirement of ‘direct and individual concern’, especially when it comes to actions brought by ‘public interest associations.’88
2. Scope of Review: Limitations Placed on the EU Courts
With the admissibility affirmed, the GC moved on to the substance of the case, which brings us to the issue of the actual scope of the judicial review of international agreements on their compatibility with international law. To begin with, it is necessary to consider the scope of review inherent in the two provisions that provide for the Court’s jurisdiction, namely Articles 263 TFEU and 267 TFEU. The preliminary rulings procedure of Article 267 TFEU allows the Court to consider the validity and interpretation of ‘acts’ of EU institutions including —in addition to regulations, directives and decisions— so-called ‘soft law’, i.e. recommendations, opinions and communications of EU institutions.89 In contrast, actions for annulment under Article 263 TFEU, brought by a natural or a legal person, can only be brought against an act ‘intended to produce legal effects vis-à-vis third persons’, meaning, in the case of complaints against international agreements, that the action must be brought against the internal act of approval; the Council Decision approving the conclusion.90
In the field of external economic relations, which includes international trade agreements such as the one contested by Front Polisario, the Union’s institutions enjoy a broad margin of appreciation.91 Review by the Court is thus limited to considering whether the EU institution —in the case of international agreements the Council— ‘made manifest errors of assessment’ in approving the conclusion of the agreement.92 This is especially so when the Court is asked to review the conformity of an act concluding an agreement with rules of customary international law: Because of the ‘complexity of these rules’ and the ‘imprecision of some of the concepts’ they refer to, the Court can only consider whether the EU institution made a ‘manifest error of appreciation’ concerning the application of such rules.93 To summarise, then, this entails that in its judicial review the Court must check whether the EU institution ‘has examined, carefully and impartially, all the relevant elements of the case, elements which support the conclusion drawn from them’.94
3. Merits: Appraising EU Actions in Light of its International Obligations
Even though the Court is restricted to considering whether there were ‘manifest errors of assessment’ when reviewing the contested Council Decision, an overview of the law applicable to the case at hand is due since it is indispensable to an evaluation of the GC’s assessment. Front Polisario raised several pleas, all of which substantially raise the question whether or not the Union is prohibited under international and EU law to conclude an international agreement applicable to territory controlled by the contracting State, although the latter has no territorial sovereignty over the said territory.95
a. The Right to Self-Determination and the Laws of Administration/Occupation
As to the international principles applicable to this question, the main arguments of the Front Polisario are based on the right to self-determination, including the permanent sovereignty over natural resources and the ‘primacy of interests of the people of Western Sahara’.96 According to the Front Polisario, these principles of international law are not only directly violated by the contested Council Decision, but also indirectly in that the Decision confirms Morocco’s ‘policy of occupation and economic colonisation’.97 The GC set aside both arguments by observing that the Front Polisario fell short of demonstrating the existence of a rule of customary international law which prohibits the conclusion of an international treaty applicable to disputed territory.98 The question of whether there is an absolute prohibition to conclude an international treaty applicable to disputed territory, however, is beside the point. Rather, the Court should have considered whether there is a prohibition on the side of the EU arising from Morocco’s conduct in the given case. As a matter of law, Morocco may only exploit the natural resources of Western Sahara if it does so for the benefit or in the interest of the people of Western Sahara: Given that Morocco de facto administers a large part of Western Sahara, and given Western Sahara’s status as a non-self-governing territory, it seems appropriate to apply the rules governing the powers and responsibilities of an administering power in matters of natural resource activities in such a territory per analogiam.99 Following this line of argumentation, Morocco as the de facto administering power of Western Sahara would be bound by Article 73 UN Charter in conjunction with the principle of permanent sovereignty over natural resources: Article 73 UN Charter determines that administering powers recognise ‘that the interests of the inhabitants of these territories are paramount and accept as a sacred trust the obligation to promote to the utmost (…) the well-being of the inhabitants of these territories’. With recourse to the developments the principle of self-determination has brought with regard to non-self-governing territories, the ICJ concluded that the ultimate objective of the ‘sacred trust’ assumed by the administering power in relation to a non-self-governing territory was the self-determination and independence of that territory’s peoples.100 The principle of self-determination not only encompasses the right of a people to freely determine their future political status, including the option to form an independent State,101 but also their permanent sovereignty over natural wealth and resources.102 The latter principle comprises the right of peoples and nations to freely dispose of the natural resources in their territories in their national interest and in the interest of their well-being103 and has been reaffirmed by common Article 1(2) of the International Covenant on Civil and Political Rights (ICCPR)104 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),105 which have been ratified by Morocco in May 1979. Common Article 1(3) ICCPR and ICESCR obliges all States Parties to promote the realisation of and to respect that right, while highlighting these duties with regard to administering powers vis-à-vis non-self-governing territories. Confronted with the question of whether the principle of permanent sovereignty over natural resources prohibits Morocco as the de facto administering power of Western Sahara to conclude treaties on the exploitation of the natural resources of Western Sahara,106 the UN Legal Counsel, Hans Corell, found that ‘where resource exploitation activities are conducted in Non-Self-Governing Territories for the benefit of the peoples of those territories, on their behalf, or in consultation with their representatives, they are considered compatible with the Charter obligations of the administering power, and in conformity with the UNGA resolutions and the principle of “permanent sovereignty over natural resources” they enshrine’.107 A classification of Western Sahara as an occupied territory would not fundamentally alter these findings, as the relevant provision under the laws of occupation —Article 55 of the Hague Regulations108— applicable to the exploitation of natural resources in situ stipulates that the proceeds of immovable public property may only be utilised for the benefit of the inhabitants of the territory.109 Thus, summa summarum, ‘the usufructuary limitations on a belligerent occupant largely parallel those of a territorial administrator’,110 which limits Morocco to only engage in the exploitation of natural resources of Western Sahara conducted for the benefit or according to the wishes of the people of Western Sahara.111 The question then is, whether the people of Western Sahara actually benefit from the trade in fishery and agricultural products with the EU or endorse it. Suffice it to say here,112 that the probability that Morocco takes due account of the interests or the benefit of the peoples of Western Sahara is quite low, considering the fact that Morocco does not perceive itself to be the occupying or de facto administering power of Western Sahara, but rather treats Western Sahara as part of its own territory.113
b. The EU’s Participation In or Encouragement of Morocco’s Actions
Proceeding on the assumption that Morocco exploits the agricultural land of Western Sahara and the waters adjacent to its coast contrary to the aforementioned obligations as a de facto administering/occupying Power, the EU’s role in this unlawful exploitation needs to be evaluated. While it is true that the EU might not bear the same obligations and responsibilities towards Western Sahara as Morocco does, it would be premature to conclude that international law may not or does not limit the EU’s conduct in this regard. In fact, international law knows several constellations in which States or international organisations incur international responsibility and/or obligations in conjunction with the wrongful act of another State.114 Front Polisario’s claim that the contested EU-Morocco Agreement confirms Morocco’s ‘policy of occupation and economic colonisation’ of Western Sahara alludes to these constellations.115
First of all, such a claim can be construed as an allegation that the EU aids or assists Morocco in illegally exploiting resources of Western Sahara, conduct which, according to Article 14 Draft Articles on the Responsibility of International Organizations116 (DARIO), would be unlawful in itself, triggering the international responsibility of the EU. However, the threshold of Article 14 DARIO is quite high, as it requires that an international organisation deliberately provide significant aid or assistance with a view to facilitating the commission of a wrongful act of a State.117 Furthermore, the exploitation of natural resources of Western Sahara would need to be internationally wrongful if committed by the EU itself.118 Whereas the latter point may be fulfilled if it is accepted that the EU is bound by the principle of permanent sovereignty over natural resources as a general principle of customary international law,119 the other legal prerequisites require further scrutiny. As the GC pointed out, from the moment when the Front Polisario publicly campaigned against the contested EU-Morocco Agreement, even bringing its protests to the knowledge of the UN, the Union institutions could no longer ignore that Morocco’s exploitation of natural resources in Western Sahara might be unlawful and should have assessed the probability of this allegations.120 Instead, the Council proceeded on the assumption that the conclusion of the contested Agreement with Morocco could not incur the responsibility of the EU for Morocco’s potentially unlawful exploitation of natural resources.121 It is debateable whether by turning a blind eye on Morocco’s conduct the Council has tacitly accepted such unlawful exploitation, thereby satisfying the criterion of deliberately facilitating it.122 The key question, however, is whether the approval of the contested Agreement actually and significantly facilitates Morocco’s exploitation of natural resources of Western Sahara. Is agreeing to import fishery and agricultural products on favourable terms enough to significantly contribute to an unlawful exploitation of Western Saharan agricultural land and waters by Morocco? In this regard it is worthwhile to pay attention to the findings of the GC:123
[T]he export to the EU of products, in particular from Western Sahara, is facilitated by the agreement in question. Indeed, this is part of the objectives of the said agreement. Therefore, should it turn out that the Kingdom of Morocco exploited the resources of Western Sahara to the detriment of its inhabitants, this exploitation could be indirectly encouraged by the conclusion of the agreement approved by the contested decision.124
Whether this ‘indirect encouragement’ can be deemed a significant contribution to the conduct of Morocco should be considered against the backdrop of the size of the EU’s market125 and the excellent trade relations between the EU and Morocco, with the EU being Morocco’s prime partner in the trade of goods:126 The prospect of almost unrestrictedly trading in agricultural and fishery products of Western Sahara to its most important importer of goods and one of the three biggest markets in goods worldwide may be considered enough to significantly contribute to Morocco’s preparedness to exploit such goods, whether lawfully or unlawfully.
Even if one rejects the argument of ‘indirect encouragement’ as too vague as to amount to a significant contribution to a wrongful act, the EU should still be careful to conclude trade agreements applicable to disputed territory. When considering the contested EU-Morocco Agreement in a broader context, it might be asked if it not (also) contributes to the legitimisation of Morocco’s territorial claims on Western Sahara, a claim contradictory to the right to self-determination of the people of Western Sahara. The ICJ, in its Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, declared that the right to self-determination constitutes an obligation erga omnes, a breach of which triggers several third party obligations.127 According to the ICJ, a breach of an obligation erga omnes by a State triggers the obligations of all States not to recognise the illegal situation resulting from this breach and, additionally, an obligation not to render aid or assistance in maintaining this situation.128 Although it is true that these obligations have been framed so as to apply to States, it seems justified to also apply them to the EU, since the EU, an entity with international legal personality, is actually capable of such conduct.129 In this respect, it is quite significant that the GC found that the practice of EU institutions indicates that they —at least implicitly— accepted the application of the contested EU-Morocco Agreement to the parts of Western Sahara under control of Morocco.130 Nonetheless, the GC denied that the approval of the contested Agreement supports Morocco’s claim to sovereignty over Western Sahara, because ‘the mere fact that the Union admits the application of the terms of the agreement with the Kingdom of Morocco in respect of agricultural products or fishery products exported to the EU from the part of the territory of Western Sahara that it controls, or products that are imported into the territory, does not amount to a recognition of Moroccan sovereignty over the territory’.131 The GC remained silent on the reasons for this apodictic finding. As the ICJ has held in its Namibia opinion, the obligation of non-recognition requires States not to enter into treaty relations with other States if doing so would imply recognition of an illegal situation as legal.132 Such recognition may result from the contested EU-Morocco Agreement if Morocco purported to exercise territorial sovereignty over Western Sahara beyond its powers as a de facto administering/occupying power.133 In that case, Morocco’s conduct should ‘be construed as an implicit legal claim to territorial sovereignty over Western Sahara —which third states are obligated not to recognize’.134 This reasoning is supported by international practice: For instance, the 2004 US-Morocco Free Trade Agreement135 and the 1997 EFTA-Morocco Free Trade Agreement136 exclude waters off the coast of Western Sahara from their territorial scope.137 With regard to the exclusion of Western Saharan territorial waters from the scope of the EFTA-Morocco Agreement, Norway and Switzerland issued statements underlining that, in their view, Morocco does not exercise internationally recognised sovereignty over Western Sahara and therefore does not have the right to exploit the territory’s resources as if they were its own.138 Hence, unless the Court tacitly assumed that Morocco has acted within its limited treaty-making capacity as a de facto administering/occupying power, i.e. the benefit and interests of the people of Western Sahara are observed when exploiting the land and coast of Western Sahara, there is no apparent reason not to consider the approval of the EU-Morocco agreement as an implicit recognition of Morocco’s claim to sovereignty over Western Sahara.139
As to the obligation not to render aid or assistance in maintaining a situation created by a breach of an obligation erga omnes, similar arguments which could speak against the approval of the contested EU-Morocco Agreement can be brought forward. The approval of an agreement indiscriminately applicable to disputed territory may not only confirm illegitimate territorial claims of the contracting partner, but also provides a strong economic incentive to hold on to these claims, in turn subverting the right of the people of Western Sahara to freely decide on the future status of the territory.140 What is more, it contributes to a progressively developing acquiescence towards the situation in Western Sahara.141
To sum up, from an international law perspective the question of whether the Council was barred from approving the contested EU-Morocco Agreement depends on an assessment of Morocco’s conduct: If it can be established that Morocco has acted within its limited treaty-making capacity as a de facto administering/occupying power, i.e. the exploitation of resources of Western Sahara benefits the people of Western Sahara, international law does not impose any limits on the EU and EU decision-making. In the opposite case, however, the EU risks acting internationally wrongful in connection with Morocco’s wrongful act(s) (Article 14 DARIO) and risks violating the obligation not to recognise the illegal situation resulting from a breach of an obligation erga omnes and the obligation not to render aid or assistance in maintaining such situation.142
c. The EU’s Actions and the Fundamental Rights of the Sahrawi Population
Even though the GC refused to take an ‘international law friendly’ path in Front Polisario, this did not prevent it from chastising the EU for its actions related to the contested EU-Morocco Agreement and the EU’s argumentation that it could not be held accountable for actions carried out by a third State, whether these actions are in conformity with or violating fundamental rights. Regarding the Council’s argument, the GC stated that although this view is technically correct, ‘it ignores the fact that, if the European Union allows the export to its Member States of products originating in that other country which have been produced or obtained in conditions which do not respect the fundamental rights of the population of the territory from which they originate, it may indirectly encourage such infringements or profit from them’.143 When the Union concludes an agreement that facilitates, particularly, the export of products from a disputed territory, ‘the Council must examine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export is not conducted to the detriment of the population of the territory concerned, or entails infringements of fundamental rights’,144 including various rights under the EU Charter of Fundamental Rights.145 Thus, the Council, in exercising its broad power of appreciation, must itself ensure that there is no evidence of such exploitation, and cannot merely refer to the obligations of the third State in this regard.146
The duty of the EU institution to consider all relevant elements of the case when concluding an agreement thus includes a consideration of potential fundamental rights violations of non-EU nationals in non-EU territory.147 Especially noticeable is the GC’s interpretation of fundamental rights of the population of the disputed territory, in this case of the Sahrawi people, as the Court seems to consider the export of products from such territory that does not benefit the peoples of this territory, is not done on their behalf, or in consultation with their representatives, to be in violation of the fundamental rights of these peoples, a conclusion it supports by referring to Corell’s conclusions on international legal rules on self-determination and the permanent sovereignty over natural resources.148 The Court also touched upon the absence of an international mandate and of international recognition of Morocco’s jurisdiction over the territory of Western Sahara, noting that Morocco failed to submit information as required under Article 73(e) of the UN Charter, conjuring doubts about whether Morocco actually recognises and respects the principle of the primacy of the interests of the territory’s inhabitants as is required by Article 73 UN Charter.149 Seeing as the EU Charter of Fundamental Rights contains neither collective or peoples’ rights, nor a right to self-determination or to permanent sovereignty over natural resources, it seems as if the GC indirectly applied international law, specifically rights and obligations under the right to self-determination and the laws of administration/occupation, without clarifying why and how these rules should be applied. Instead, it built its argumentation on the EU’s obligations under the EU Charter of Fundamental Rights, and expanded the EU’s obligations to encompass a duty to ensure no such violations might occur as a result of the Agreement concluded. Since, in the case of the Decision under review, the Council failed to examine all the relevant elements before the adoption of the Decision, the GC annulled the contested Decision insofar as it approved the application to Western Sahara of the EU-Morocco Agreement.150
B. International Responsibility of the EU
Within the EU legal order, judicial review by the Court serves to establish the invalidity of the Council’s act of conclusion of an international agreement, whereby the Court can (partially) annul these acts if it indeed finds that the Council has acted contrary to EU law when adopting the act. On the international plane, however, this annulment has limited effect, especially when it comes to the EU’s international obligations, as for example those towards Morocco under the contested EU-Morocco Agreement. Seeing as the (partial) annulment of the Council’s Decision only has an effect within the EU legal order, the EU’s international obligations it undertook by concluding the agreement are unaffected and continue to bind the EU. As a result of the annulment, however, the EU and its institutions are prohibited from executing the agreement insofar as it was annulled, leading to a discrepancy between what is legally expected from them on the one hand, and what they are legally allowed to do on the other. As a principle of customary international law codified in Article 27 of the 1969 Vienna Convention on the Law of Treaties and repeated in Article 27 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations, the EU cannot invoke its internal law to justify a failure to uphold its international obligations.151
A theoretical argument can thus be made about what this might entail for the EU when it comes to international responsibility: Failure by the EU to execute the agreement in its entirety would, in theory, lead to a failure to uphold its international obligations under the agreement. Under the rules of the responsibility of international organisations, such a breach of an international obligation by the institutions of the EU would constitute an internationally wrongful act of the EU, which entails the EU’s international responsibility.152 With the GC’s Front Polisario judgment only a couple months old, and currently under appeal before the Court of Justice,153 possible international responsibility is in our case still very much a hypothetical situation but, especially if the ECJ would confirm the GC’s judgment, not an impossible or unrealistic one. In such a case, new negotiations with Morocco —or generally with the contracting party— would have to be held in order to bring the agreement in accordance with the Court’s judgment, and thus with the EU’s obligations, be they domestic or international.
V. Concluding Remarks and Prospect
The question of the legality of the EU concluding trade agreements with Morocco, which are likely to be applied to Western Sahara without consideration of the interests of the indigenous Sahrawi population, is not just relevant to the Agreement approved by Council Decision 2012/497/EU. Rather, it arises with regard to the entire EU-Morocco Association Agreement and related Agreements, including the EU-Morocco FPA and the EU-Morocco Deep and Comprehensive Free Trade Agreement (EU-Morocco DCFTA)154 currently under negotiation. Insofar, the GC’s judgment may not only have implications on the future EU-Morocco DCFTA,155 but also on the outcome of related cases, such as Front Polisario’s action for annulment of Council Decision 2013/785/EU156 approving the Protocol setting out the fishing opportunities and financial contribution provided for in the EU-Morocco FPA,157 or the preliminary reference made by the English High Court of Justice on the legality of both the EU-Morocco Association Agreement and the EU-Morocco FPA.158
This will, however, only be the case if the ECJ does not reverse the GC’s judgment, seeing as the Council has already filed an appeal against it.159 In this respect, the critics of the contested Council Decision should be careful not to celebrate too soon: Although the assessment of the international law applicable to the case at hand presumably supports their view of the incompatibility of the decision with the rights of the people of Western Sahara, the GC’s judgment exhibits some weak points in its line of argumentation. First of all, it should be borne in mind that the ECJ usually pursues a quite restrictive approach when it comes to the capacity of individuals to bring an action for annulment.160 Particularly the finding that the Front Polisario constituted a legal person in the sense of Article 263 TFEU because it had the ‘necessary independence’ to act as a responsible entity in legal relationships might come under scrutiny, as it seems to give leeway to other ‘autonomous entities’ to instigate proceedings before the Court. Similarly, the GC’s finding that ‘direct and individual concern’ was given because of the Front Polisario’s role in the international negotiations on the status of the territory might considerably widen the pool of prospective complainants. Even if the ECJ should confirm the legal standing of Front Polisario, which would be eligible to provide the Sahrawi people with access to justice, the annulment of the contested decision arguing (potential) violations of the EU fundamental rights of the people of Western Sahara is disputable, as the GC did not conclusively show in what way and to what extent the alleged exploitation of natural resources of Western Sahara contrary to the interest of the people of Western Sahara constitutes a violation of EU fundamental rights under the EU Fundamental Rights Charter. The GC referenced a number of fundamental rights of the EU Charter (including the right to human dignity and life, the prohibition of slavery and forced labour, the right to fair and just working conditions and occupational and business freedom)161 without establishing how these rights are connected to or can invalidate a trade agreement that does not guarantee that the exploitation of resources in a non-self-governing territory is done in accordance with the indigenous population’s rights. Does the GC imply that these individual rights contain rules substantially similar to those stemming from the principles of self-determination and permanent sovereignty over natural resources? Dogmatically, such an approach seems to stand on shaky ground, even when taking into account that since the Treaty of Lisbon, the EU is under increased pressure to foster EU fundamental rights in its external action.162
These concerns are only amplified when considering that international law contains several rules that determine the conditions under which the exploitation of natural resources of a non-self-governing territory is lawful. The question that remains then is why the GC, instead of indicating the rules of international law that the Council should have considered before approval of the contested decision, made a somewhat surprising move and based its argumentation on EU fundamental rights. The GC’s reserved attitude towards applying international law might partly be motivated by its reluctance to imply that the EU may have acted in violation of international law, which in turn could bring with it questions as to the EU’s international responsibility. Another piece of the puzzle might be that the international law applicable to the case at hand is not quite clear and much depends on how one assesses Morocco’s status in relation to Western Sahara. Given that the UN, unlike in other situations such as Palestine,163 fell short of taking up a distinct stance with regard to the conflict in Western Sahara, it is understandable that the GC would feel somewhat overburdened in adopting a definitive position on a politically sensitive issue such as the conflict in Western Sahara. It remains to be seen whether the ECJ will take on this task.