The Saharawi people continue their honorable struggle for independence and continue to gain more support for their just cause, as they celebrated, a couple of weeks ago, the 46th anniversary of the establishment of the Sahrawi Arab Democratic Republic (SADR), with much determination and enthusiasm to recover their unalienable rights.

Delving into the gains achieved by the Saharawis, we mention the legal ones. The decision of the European Union (EU) Court last September, annulling the two Moroccan-EU fisheries and agriculture agreements, extended to occupied Western Sahara, is considered a victory for the Sahrawis. Such a decision requires that “the Sahrawi people, sovereign over their wealth, must be consulted before any economic transaction," through its only legitimate representative, the Polisario Front.

Detailing on this point, the EU’s international agreements with Morocco on trade, involving agricultural and fishery products, have drawn harsh criticism, because they include the wealth of the disputed territory of Western Sahara, a territory that remains on the list of non-self-governing territories to be decolonized in accordance with the right of self-determination of the indigenous Sahrawi people. The trade figures between Morocco and the European Union are significant. In 2019, Morocco exported 434 million euros ($524 million) worth of fish, tomatoes, and melons from Western Sahara to Europe, the European Commission said, without providing the figures related to phosphates.

In a historic ruling whose implications will go beyond the economy, the Court of Justice of the European Union (CJEU) has ruled, on September 29, 2021, in favor of the annulment of the extension of two fishing and agriculture agreements between Morocco and the European Union (EU) to Western Sahara, affirming that they were sealed in violation of the Court’s decision in 2016 and without the consent of the Sahrawi people.

The ruling refers to a free trade and agricultural products agreement signed by Rabat and the EU, and to a fishing agreement endorsed by both parties in 2019. Both agreements have been inked with a view to including products from Western Sahara and the waters off the coast of it in the free trade deal, allowing them to extract resources from this territory.

To this end, the commercial and fishing agreements inked between Brussels and Morocco in 2018 and 2019, respectively, have been declared illegal for including Western Sahara, the last non-autonomous territory in Africa that has been waiting for decades to exercise its recognized right to self-determination.

The court ruled in favor of the Polisario Front, as the representative of the Sahrawi people officially recognized as such by the United Nations since 1979, had filed the complaint against the EU Commission, the Council, and Morocco.

“In that regard, the Court determines that the applicant is recognized internationally as a representative of the people of Western Sahara, even if that recognition is confined to the self-determination process of that territory. Furthermore, its participation in that process implies that it has the necessary autonomy and competencies to act within that context”, reads the Court’s communiqué.

“Ultimately, effective judicial protection requires that the applicant could be regarded as having the capacity to bring an action before the Court to defend the right of the people of Western Sahara to self-determination,” added the same source.

The European Court has put an end to the criterion of the interest of the population. The court dismissed the fallacy that the European Council sought to introduce by using the term “the interest of the population” instead of “the consent of the Sahrawi people” as two different issues.

The Court of the EU further explained that the criterion of the interest of the population of these agreements cannot replace the requirement of the expression of the “consent of the Sahrawi people."

The decision of the European Court confirms the 2016 court ruling on a cooperation agreement signed in 2000 and a 2012 trade pact, stipulating that investments in Western Sahara should be made with the consent of the Saharawi people and puts an end to the notion of “benefit to the populations” provided for in Hans’ 2002 opinion Corell, the UN Legal Counsel.

The Sahrawi Republic and the Frente POLISARIO reacted and noted with satisfaction the verdict of the European Court of Justice, which ruled that the agreements concluded by the European Union with the Kingdom of Morocco were invalid because they illegally included the territory and the territorial waters and wealth of the Sahrawi Republic.

Historically, several important judicial decisions concerning Western Sahara have been issued to assure Sahrawi’s full right to self-determination. To wit; Resolution 1514 of December 14, 1960, also known as the “Declaration on the Granting of Independence to Colonial Countries and Peoples” amplifies the anti-colonial struggles of peoples and their full sovereignty. The declaration states, “Subjection of peoples to alien subjugation, domination, and exploitation constitutes a denial of fundamental human rights”.

In December 2016 the European Court of Justice affirmed that a Non-Self-Governing Territory has a separate and distinct status from that of the administering state. On December 23, 2016, UN General Assembly Resolution 71/103 stated that any economic or other activity that has a negative impact on the interests of the peoples of the Non-Self-Governing Territories and on the exercise of their right to self-determination is contrary to the purposes and principles of the Charter” of the United Nations, referring to EU trade agreements with Morocco that includes the Sahrawi territory which has significant phosphate reserves and offshore fishing.

For its part, the Court of Justice of the European Union (CJEU) has issued, since 2016, diverse rulings on a variety of agreements inked between the European Union (EU) and Morocco. These judgments determine that Western Sahara, the last colony in Africa, has a separate and distinct status from Morocco.

In 2017, the High Court stated that the territory of Western Sahara is Africa’s last colonized territory, vesting control of the natural resources of Western Sahara in the Sahrawi people.

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Case C-104/16 P Council v Front Polisario: the first act in the Polisario Saga (1)

On November 19, 2012, the Polisario Front brought an action before the General Court of the European Union (GCEU) for the partial annulment of EU Council Decision 2012/497/EU that approved an agreement between the EU and Morocco, concerning reciprocal liberalization measures on agricultural products, processed agricultural products and fish and fishery products and introduced new protocols whose application included the territory of Western Sahara. (2)

This action marked the beginning of a period during which issues relating to the resources of Western Sahara came to the forefront of judicial and political debate due to Morocco’s privileged relations with the EU and their potential impact on the natural resources of the non-self-governing territory (González-Vega 2018a, 403–404).

Negotiations, according to Tandfonline, regarding the controversial agreement – the object of the plea for annulment by the Polisario Front – began in 2009, and it was not approved by Parliament until February 16, 2012, after profound discrepancies that arose in the chamber around its terms. (3)

Following the final approval of the new agreements by the EU Council on March 8, 2012, the Polisario Front reacted on February 19, 2012, calling the GCEU to annul the unilateral decision, basing their action on eleven pleas in law, (4) including, but not restricted to, the infringement of international conventions signed by the EU that are reaffirmed in European jurisprudence regarding the respect for human rights and the law of treaties, in particular the principle of obligations and rights for third states, and the right to self-determination of the Sahrawi people recognized by the United Nations.

Different reasons explain the Polisario Front’s determination to bring the Council Decision on the AA before the Court, according to the Sahrawi representative to the EU (5). The decision is in line with the general strategy adopted by the Polisario Front in the early 2000s with a view to focusing its fight against the Moroccan occupation around two specific areas: human rights and the exploitation of the natural resources of the Sahara.

It is worth noting that the first action taken by the Polisario Front to challenge the ongoing flow of investments in the Sahara dates back to 2001 when it appealed to UN Under-Secretary-General for Legal Affairs Hans Corell to express an opinion on the legality of Moroccan actions ‘consisting in the offering and signing of contracts with foreign companies for the exploration of mineral resources in Western Sahara.' The Polisario Front was also encouraged by dissent generated within the EU by the Agricultural Agreement with Morocco, which coincided with publications issued by grassroots associations and non-governmental organizations (NGOs) like Confédération Paysanne and Western Sahara Resource Watch regarding unfair competition for products entering Europe that originated in Western Sahara but were labeled as Moroccan. Another factor concerned the binding precedents that had emerged in European case law related to other occupied territories, like the so-called Brita case (C-386/08), which established that products originating in the West Bank cannot be granted preferential treatment under the EU-"Israel" Agreement.

The procedure in the General Court began in November 2012 and continued to December 10, 2015, when the verdict was issued, ruling to annul the Council’s decision. The judgment contains two particularly important points.

Firstly, the Polisario Front’s legal personality to act as the representative of the people of Western Sahara according to Article 263 of the Treaty on the Functioning of the European Union has been accepted (De Elera 2017, 276).

Secondly, the Court stated that the Council had a duty to reconsider the possible consequences of the application of such agreements that include a non-self-governing territory and its eventual impact on the fundamental rights of the population living there. Thus, the Council had to ensure that the agreements signed with Morocco would not violate the fundamental rights of the Sahrawis in Western Sahara (Soroeta 2016).

In response, on February 19, 2016, the Council decided to lodge an appeal against the GCEU ruling to suspend its application (Van der Loo 2016, 13).

Under the expedited procedure granted by the President of the Court, the CJEU delivered its verdict on December 21, 2016, annulling the judgment of the General Court, because the agreement could not be applied to Western Sahara. The Grand Chamber judged the agreement legal only if it is applied to the territory of Morocco because the non-self-governing territory of Western Sahara had a status separate and distinct from the territory of the state administering it (until its people exercise their right of self-determination in accordance with the Charter of the United Nations).

To explain, the legal background used by the CJEU to utter its verdict was UN Resolution 34/37, stating that Western Sahara is a non-self-governing territory and the Kingdom of Morocco is the occupying power, not the de facto administering power. Therefore, neither Morocco nor the EU can have sovereignty over Western Sahara. Besides, they cannot include their wealth in the territorial scope of the agreement undersigned between them, as stipulated in Article 34 of the Vienna Convention on the Law of Treaties, under which a treaty does not create either obligations or rights for a third state without its consent. Consequently, the people of Western Sahara, represented by the Polisario Front, are to be considered a third party, and their consent is necessary for an agreement to be inked and which includes that territory (6).

(to be continued)

References:

1- The European Court of Justice on the EU-Morocco agricultural and fisheries agreements: an analysis of the legal proceedings and consequences for the actors involved, Taylor and Francis Online.

2- Case T-512/12 Front Polisario v Council of the European Union, EU:T:2015:953; Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part [2000] OJ L70/2 (EU-Morocco Association Agreement); Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalization measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part [2012] OJ L241/2.

3- The agreement was adopted with 369 votes in favor, 225 against, and 31 abstentions. The final vote showed a geographical cleavage in the MEPs’ decision. The MEPs from southern Europe, mainly Spain, Italy, and France, voted most clearly against the agreement. See ‘Pointage des votes concernant l’Accord Agricole UE-Maroc approuvé par le Parlement Européen le 16 février 2012’

4- The pleas included: a lack of sufficient justification; failure to respect the principle of consultation; infringement of fundamental rights; infringement of the principle of coherence; infringement of the European Union’s founding values and of the principles guiding the Union’s external action; failure to comply with the objective of sustainable development; conflict with the principles and objectives of the Union’s external action in the field of development cooperation; conflict with a number of agreements concluded by the Union (including the Association Agreement with Morocco and the United Nations Convention on the Law of the Sea); infringement of the origin criterion deriving from the United Nations Convention on the Law of the Sea; and conflict with general international law (De Elera 2017, 275).

5- Interview with Manuel Devers, Barcelona/Luxembourg, 11 January 2020.

6- Natorsky, M. 2008. “The MedaProgramme in Morocco 12 Years On: Results, Experiences and Trends.” Documentos CIDOB Mediterráneo, n°11.