Front Polisario v. Council case: the uneasy relationship between EU and international law

On 29 September 2021, the General Court, through its judgments in joined Cases T-334/19 and T-356/19 and in the case T-272/19, annulled two Council decisions (EU) 2019/217 and (EU) 2019/441 on the conclusion of agreements negotiated on behalf of the European Union with the Kingdom of Morocco, namely the Sustainable Fisheries Partnership Agreement and the amendment to Protocol 1 and 4 of the Association Agreement. The General Court gave its latest contribution to the long-running complex litigation between Front Polisario on the one hand, and the EU institutions and Morocco on the other. Indeed, the two Council decisions were the outcome of two previous European Court of Justice (ECJ)’s judgments issued in 2016 (Council v. Front Polisario C-104/16 and Western Sahara Campaign UK C-266/16) over the two agreements, concerning the compatibility of the EU commercial agreements with international law. The complexity and the relevance of the case stands not only in the EU compliance to international norms, but, more broadly, in the Court of Justice of European Union (CJEU)’s  approach and attitude towards questions of international law.

Western Sahara is a territory in North-West Africa, bordered by Morocco to the north, Algeria to the north-east, Mauritania to the east and south and the Atlantic to the west. Formerly being a Spanish colony, it has been subject to a conflict between two bordering countries, especially Morocco and Mauritania, and Front Polisario (Popular Front for the Liberation of Saguia el-Hamra and Río de Oro), a movement which seeks to achieve the independence of Western Sahara. The dispute currently makes it a controversial ground for the international community. Under Chapter XI of the Charter of United Nations, in 1963 the United Nations classified it in the list of “non-self-governing territories”, meaning territories whose people have not yet attained a full measure of self-government. After the withdrawal of Mauritania and Spain, in 1974 the greater part of Western Sahara was occupied by Morocco, which finally annexed it to its territory in 1979. Even though the country considers Western Sahara to be an integral part of its territory, this has been considered an “illegal occupation” by the rest of the international community. Indeed, a smaller part of that territory in the east is controlled by the Front Polisario, which is considered by UN to be the legitimate representative of Sahrawi people and asks for Morocco’s withdrawal. In 1975, in its Advisory Opinion, the International Court of Justice (ICJ) recognized the right of the people of Western Sahara to self-determination.

The controversy of the contested jurisdiction grafted itself in the framework of the commercial relationship between Morocco and the European Union, which has been marked by several pivotal agreements. The most important is the Euro-Mediterranean Association Agreement establishing an association between the European Communities and their Member States, on the one hand, and the Kingdom of Morocco, on the other, signed in Brussels on 26 February 1996 and approved on behalf of the Communities by Decision 2000/204/EC of the Council and the Commission of 24 January 2000. It sets a framework to bring a progressive liberalization of trade in goods, services and capital between the parties. In particular, Protocol 1 concerns the arrangements applicable to imports into the European Union of agricultural products, processed agricultural products and fish and fishery products originating in Morocco; Protocol 4 is on the definition of the concept of “originating products” and methods of administrative cooperation. On the basis of this framework agreement, in 2012 the EU and Morocco concluded an agreement providing for reciprocal liberalization measures on agricultural products, processed agricultural products and fish and fishery products (the “Liberalisation Agreement“), which was adopted by Council Decision 2012/497/EU. In 2006 they signed the Fisheries Partnership Agreement, the conclusion as approved by Council Regulation (EC) No 764/2006: with the purpose of intensifying the working relationship between the European Union and the Kingdom of Morocco, particularly in the context of the Association Agreement, by establishing, in the fisheries sector, a partnership designed to promote responsible fishing in the Moroccan fishing zones and to implement effectively the Moroccan fisheries policy. It was adopted and supplemented in 2013 by a Protocol, which sets out the fishing opportunities which it lays down and was approved by Council Decision 2013/785/EU. The standing question was whether these two agreements, concerning the resources and products in the geographical “territory of Morocco”, extended its terminology also to the Western Sahara.

Accordingly, the legality of the agreements was challenged in the Council v. Front Polisario and Western Sahara Campaign UK cases, through the applicants’ request of annulment of the two Council decisions upon their conclusion.

The first case involved an action for annulment brought by Front Polisario, which contested the de facto application of Liberalization Agreement to the territory of Western Sahara, which was not de jure mentioned in the Agreement: however, the implicitness was deducted by the fact that a great part of the products, the establishments and the resources came from Morocco’s occupied part of territory. The second case involved the same action brought by the NGO Western Sahara Campaign UK (WSC), an independent voluntary organization whose aim is to support the recognition of the right of the people of Western Sahara to self-determination, regarding the Fisheries Agreement: it claimed before the High Court of Justice and the Administrative Court that the Fisheries Agreement and the acts approving and implementing that agreement are invalid in so far as that agreement and those acts apply to the waters adjacent to the territory of Western Sahara. WSC consequently considers that the United Kingdom authorities are acting unlawfully in providing for implementation of that agreement and issuing licenses to fish in the waters at issue. In so doing, according to Front Polisario’s and WSC’s arguments, the European Union violated the pillars of its external action in relation to the international norms, especially the right of self-determination of the Sahrawi people by recognizing the Morocco’s sovereignty on the land, the principle of consultation of the third parties for the agreements and their fundamental rights.

In their judgements, the General Court and the Court of Justice gave different views over the case. Firstly, regarding the Front Polisario’s legal personality for the purpose of bringing an action for annulment under Article 263 TFEU which was called into question by the Commission, the General Court followed its case-law by just stating that actions for annulment can be brought not only by entities that have acquired legal personality under the law governing their constitution, but also by entities that have been treated as distinct persons by the EU and its institutions. Regarding the right of self-determination, the General Court remained vague by stating that, notwithstanding “the agreement in question applies to products exported from, or imported into, the part of Western Sahara controlled by the Kingdom of Morocco, it does not amount to recognition of its sovereignty over the territory” and that in general no absolute prohibition against entering into an agreement that may be applied to a disputed territory exists under either EU law or international. Concerning the scope of agreements, the General Court claimed that they were de facto applicable “to the territory of the Kingdom of Morocco” and that this last expression was to be understood, in the absence of a stipulation to the contrary, as encompassing Western Sahara. Then, the General Court stated that the Council had failed to fulfill its obligation to examine, before the conclusion of the Liberalization Agreement, whether there was any evidence of the exploitation of the natural resources of the territory of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights. Accordingly, by judgement of 10 December 2015, the General Court stated the annulment the Council decisions.

After the Council’s appeal brought before the ECJ, the latter gave a different perspective, stating the lack of standing of the issue and setting aside the General Court’s judgement. Firstly, considering the distinct status guaranteed to the territory of Western Sahara under the Charter of the United Nations, it could not be held that the term “territory of the Kingdom of Morocco” used in the two Agreements encompassed Western Sahara and that, therefore, those agreements were applicable to that territory, since in this case they did not expressly mention the territory of Western Sahara. Then, in the specific case of the Liberalization Agreement, the Court recalled the principle of the relative effect of treaties enshrined in Article 34 of the Vienna Convention on the Law of Treaties, under which a treaty must neither impose any obligation or confer any right on third States without their consent. At this purpose, the Court stated that, in view of the Advisory Opinion of 1975, the people of that territory must be regarded as a third party which may be affected by the implementation of the agreement. In the present case, it was not apparent that that people consented to the agreement being applied to Western Sahara and thus they were not affected by any obligation. Moreover, since the concept of “territory of the Kingdom of Morocco” itself refers to the geographical area over which the Kingdom of Morocco exercises its sovereign powers under international law, to the exclusion of any other territory, such as that of Western Sahara, the Court stated that the agreements in question were not applicable to the territory of Western Sahara and thus they were legal under international law, rejecting so the applicants’ arguments.

In 2019, considering the Court’s judgments, the abovementioned agreements were subjected to specific amendments. Firstly, the protocols 1 and 4 of the Euro-Mediterranean Association Agreement on the arrangements applying to imports into the European Union of agricultural products originating in Morocco and the arrangements concerning the definition of originating products were extended to products originating in Western Sahara, which are subject to export controls by the customs authorities of the Kingdom of Morocco, the tariff preferences granted to products originating in Morocco and exported to the European Union. Secondly, Fisheries Agreement was extended to include the waters adjacent to the territory of Western Sahara within its scope. The idea was that the Western Sahara people would have benefited from the amendments, which were aimed at promoting “indirect improvements in areas such as working conditions (including safety), labour legislation (including child labour), plant health measures and consumer protection”. Thus, the key difference is that, unlike the previous cases, the amended agreements applied de jure also to Western Sahara. The Council Decisions (EU) 2019/217  and (EU) 2019/441 approving these new agreements referred to the need to respect the CJEU’s previous case-law and was referred to the results of a study carried out by the European External Action Service and the European Commission, on extending tariff preferences to products from Western Sahara. The Commission undertook public consultations with people in Western Sahara, in order to ascertain their consent and examine the economic and human rights impact of the proposal, whose outcome was that people living on the territory were in favour “of the extension of tariff preferences to products from Western Sahara […]”. This, however, excluded Front Polisario, which was not willing to participate to the consultation.

By application lodged in 2019, Front Polisario claimed that the agreements are in breach of the Court of Justice’s judgments in Council v Front Polisario and Western Sahara Campaign UK, which excluded such a territorial scope. Specifically, those agreements, applying to Western Sahara, again provide for the exploitation of its natural resources and encourage the policy of annexation of that territory by Morocco. By its current judgment on 29 September 2021 in Case T-279/19 and the Joined Cases T-344/19 and T-356/19, the General Court again annulled the contested decisions. After assessing the applicant’s legal personality under Article 263 TFEU, the General Court followed its past reasoning: in so far as the agreements at issue apply expressly to Western Sahara, they concern the people of that territory and require the consent of its people, whose direct expression is Front Polisario, recognized by the international community as such. Moreover, in view of the legal definitions of “people” and “consent” in international law, the “consultations” conducted by the institutions with the “people concerned” did not amount to an expression of the consent of the people of Western Sahara. Again, and this time more explicitly, the steps made by EU institutions in concluding the agreements are deemed to be equivalent to a recognition of the Moroccan authority over Western Sahara, whose occupation is illegal according to the international community.

The saga of these judgements remains interesting in the literature regarding the European institutions’ approach to international law, and thus their external projection in relation to the international norms and issues. Firstly, the steps taken for stipulated agreements highlight the superficiality of the Council and the Commission in dealing with sensitive issues of international law, with economic interests seeming to take precedence over the interests of the Sahrawi people. Indeed, especially in the original version of the agreements, the de facto application to Western Sahara, according to scholars, seems not to be “by mistake”, but the de jure exclusion contrarily concealed an implicit condescension towards the extension to those territories; this is then demonstrated by the following amendments which officially included Western Sahara. The blatant mistake made by the Council and the Commission has been that, in establishing an agreement that could be for the benefit of people of the Western Sahara, they however downplayed the serious concern that the agreement would have the effect of cementing the status quo of Morocco’s illegal occupation of the territory and redimensioning the legitimate representation of Front Polisario of Sahrawi people.

Secondly, this series of judgements grafts itself in the debate on the CJEU völkerrechtsfreundlichkeit, namely the friendly and complex relationship with international law: its relevance is demonstrated by both the CJEU’s difficulty in expressing its position regarding controversies of international law and the alignment of ECJ’s judgements with the international norms. As for the former, the cautiousness and vagueness in the language used by the General Court is explicative. For example, as for the assessment of the legal personality of Front Polisario, the General Court qualified it as admissible solely with reference to EU law and based on its case-law on the legal personality of “distinct persons”, without entering the discussion of whether the applicant, as a national liberation movement, had legal personality under international law. In the same way, the CJEU also eschewed the issue of self-determination and the international status of Western Sahara: with the use of expression “disputed territory” to refer to Western Sahara, despite it has been classified as a non-self-governing one by the ICJ, both the General Court and the Court of Justice seem to avoid pronouncing on the politically sensitive question of the international status of the territory, partially occupied by its commercial partner.  As for the ECJ’s judgements, which clearly dismiss the several international issues raised by the applicants, they reflect the shift in the CJEU’s approach to international law that took its roots after the Kadi case (Joined Cases C-402/05 and C-415/05): while in cases like Hungaria v. Slovakia (C-364/10) the CJEU engaged a monist view by giving the primacy to international rules, in the present case it is becoming more dualist and less “international law friendly”.

In sum, EU, as an international entity that acts externally according to its own internal principles, is expected, as scholars underline, “to contribute to the strict observance and development of international law”. Front Polisario v. Council, which maintains a neutral and vague position, represents a lost opportunity to express itself and to give its contribution on the issues of international law relevance, demonstrating the sometimes-uncomfortable relationship between European and the international legal orders.