The Polisario Front Judgment of the EU Court of Justice: a Reset of EU-Morocco Trade Relations in the Offing

Credit: Katarina Dzurekova (CC BY)

On 21 December 2016, the Court of Justice of the EU (CJEU) gave its appeals judgment in the politically contentious Polisario Front case. The Court overruled an earlier decision of the General Court (GC, 2015) and decided that the EU-Morocco trade agreement does not apply to the territory of Western Sahara, which is claimed by Morocco as its own (see Sandra Hummelbrunner and Anne-Carlijn Prickartz’s analysis). The Court then went on to dismiss the action for annulment brought against the EU Council decision endorsing the agreement by the Polisario Front, a national liberation movement representing the Saharawi population indigenous to Western Sahara. In so doing, the Court largely followed Advocate General Wathelet’s advisory opinion, at least its first part (see on this Katharine Fortin’s analysis over at the UCall blog). The dismissal of the Polisario Front’s action may appear to be a victory for the EU Council and Morocco. However, in a manner reminiscent of Pyrrhus’s battles with the Romans in the 3rd century BC, it may well turn out to be a loss, and in fact a boon for the Saharawi. Although the CJEU held that the Front did not have standing to dispute the EU Council decision, this determination precisely followed from the Court’s recognition of the people of Western Sahara’s right to self-determination and the attendant exclusion of the territory from the trade agreement. Henceforth, the EU Council and Morocco have no other choice than to exclude products from Western Sahara from their trade agreements.

It is recalled that in 2015, the GC had accepted the Polisario Front’s standing to file an action for annulment and then proceeded to partially annul the EU Council decision on EU fundamental rights grounds. According to the GC, the Council had failed to ensure that the production of those products was not conducted to the detriment of the population of that territory and that such production did not entail infringements of fundamental rights (paragraphs 223-247). On appeal, the CJEU has now set aside that judgment and dismissed the Front’s action. This dismissal of the action – which in itself may be reason to cheer for both the Council and Morocco, as well as some EU member States – was however a direct consequence of a consideration that will hardly please the defenders of the de facto application of the agreement to the Western Sahara. The CJEU namely held that the Polisario Front had no standing to seek annulment of the decision because the territory of Western Sahara did not come within the scope of the EU-Morocco agreement (para. 132-133). The gist of the Court’s reasoning is indeed that, because the Saharawi have an international right to self-determination, the agreement – which was concluded without their participation – cannot apply to Western Sahara and as it does not apply, representatives of the Sahrawi have no standing to challenge the relevant EU decision.

It is certainly counter-intuitive for a court to first address an issue that normally belongs to the merits of a case – a question concerning the territorial scope of an agreement – in order to answer the prior admissibility question of the applicant’s standing to seek annulment. But this way of reasoning can probably be explained by how the Polisario Front designed its argument before the General Court: it had to assume the agreement’s application to Western Sahara in order to have standing to seek the annulment of the decision in the first place. This argument was followed by the General Court, which held in no uncertain terms that that ‘it is precisely [because of] the fact that that agreement also applies to Western Sahara that the Front Polisario is directly and individually concerned by the decision [at issue]’ (para. 116 of the General Court’s judgment) and thus had standing before the Court. Conversely, there is no standing if the agreement did not apply to Western Sahara, as the CJEU eventually decided. It is then immaterial that the EU Council and Morocco were of the view that the agreement did apply to Western Sahara, as what is sought in an action for annulment, is not the annulment of a particular view or interpretation, but the annulment of a decision. This reasoning by the CJEU is rather solid.

Because the Court declared the action filed by the Polisario Front inadmissible, pro-Moroccan activists predictably claimed victory, a ‘lucid European diagnosis’ and a ‘serious setback for the Polisario Front’. The EU’s High Representative for Foreign Affairs and the Moroccan Minister of Foreign Affairs and Cooperation for their part issued a joint statement which says that they ‘took note’ of the judgement and would ‘work together on any issue relating to its application’, a far cry indeed from Morocco’s suspension of diplomatic relations with the EU in the wake of the GC’s judgment. The Polisario Front’s lawyer, in contrast, told EU Observer: ‘They focus on the fact that the Polisario Front’s action was deemed inadmissible, which to us, is the most beautiful victory.’ The Polisario Front’s reaction, despite the Front’s action being inadmissible before the Court, may be closest to reality indeed. After the Court’s judgment, EU-Morocco trade relations cannot continue as before, at least not in respect of products from Western Sahara. The Court unambiguously states – and this is the major takeaway of the judgment – that the Saharawi have the right to self-determination. As the Court held in para. 92, ‘[i]n view of the separate and distinct status accorded to the territory of Western Sahara by virtue of the principle of self-determination, [the Association Agreement on which the agreement at issue was based cannot] be interpreted in such a way that Western Sahara is included within the territorial scope of that agreement’.

Admittedly, the EU Council and Morocco may highlight the option for the EU Council and Morocco to expressly include Western Sahara within the scope of the agreement when amending the agreement after the judgment, which may follow a contrario from para. 94 of the judgment (‘unless a different intention appears from the treaty or is otherwise, established, that treaty is binding upon each party in respect of its entire territory, applying the customary version of Article 29 of the Vienna Convention on the Law of Treaties). However, according to the Court , the principle of self-determination has its autonomy (para. 87). Thus,  even an express textual inclusion of Western Sahara may, in light of the prevailing effect of general international law, not legally extend the agreement to Western Sahara. Moreover, such an inclusion would continue to fly in the face of the principle of relative effect of treaties, i.e., the third relevant rule of international law cited and applied by the Court (codified in Article 34 of the Vienna Convention). The Court held in this respect that the people of Western Sahara must be regarded as a ‘third party’ which has not given its consent to be bound by the agreement (a remarkable extension of the customary norm of Article 34 to non-state actors for that matter, which finds its roots in the Court’s 2010 Brita judgment concerning the Occupied Palestinian Territories). And even if one were to accept that an express inclusion renders the agreement applicable to Western Sahara, the legal analysis of the General Court – which the CJEU has not formally repudiated – becomes relevant again. Indeed, in that case, the contested decision may automatically become of direct and individual concern to the Polisario Front, and in a new action for annulment the General Court may well hold again, as it did in 2015, that the EU Council has failed to fulfil its obligation to examine the impact of the conclusion of the agreement on the human rights situation in Western Sahara (see also the Advocate General’s opinion in points 116-308).

At the end of the day, in view of the CJEU’s ruling, the EU Council and Morocco will have no other option than to exclude products from Western Sahara from their trade agreements (see here for the political perspectives for such a deal). The option to de facto apply the agreements to Western Sahara – an option hitherto embraced – is no longer on the table. Whether this constitutes a net win for the Saharawi obviously remains to be seen. The exclusion of products from Western Sahara may not only have an adverse impact on Morocco’s economy, but also on the economic situation of the Saharawi. This is the unfortunate consequence of the Court rather bluntly applying the international law of treaties when reviewing the EU-Morocco agreements. Applying the law of occupation and the law on non-self-governing territories (Article 73 UN Charter) instead could have opened a window for EU-Morocco trade in natural resources from the Western Sahara insofar as Moroccan exploitation benefits the indigenous inhabitants. However, verifying such benefits is not self-evident. The bright-line principle laid down by the CJEU may then be preferable after all. It will hopefully put pressure on Morocco to start taking seriously the organization of a referendum on the right to self-determination of the Saharawi, something which it promised as early as 1991.