Summary of “The Decisions of the European Court of Justice on Western Sahara and the Reaction of the European Union”
Published in Justice on Trial: Law, Politics, and Western Sahara, (International Platform of Jurists for East Timor, Netherlands 2022), Manfred O. Hinz.
As summarized below, the authors of this article discuss the position of the European Union in the wake of landmark court rulings supporting Sahrawi self-determination rights, including the right to control the development of their own natural resources.
The General Court of the European Union, the court of first instance of the Court of Justice, was first asked to consider the legality of the EU-Morocco reciprocal liberalization measures on agricultural products, processed agricultural products, fish and fishery products, and issued a judgment on 10 December 2015. This judgment was appealed and overturned by the judgment of the European Court of Justice (ECJ) on 21 December 2016. On 27 February 2018, the ECJ ruled on a submission by the UK High Court of Justice under the terms of Article 267 of the Treaty on the Functioning of the European Union, with the UK High Court requesting that the European Court rule on the validity of the fisheries partnership agreement between the EU and Morocco.
According to the first judgment of the ECJ, the contested agreement between the European Union and Morocco was held not to violate relevant law on the basis that – in applying relevant international law – it should be interpreted to not extend to Western Sahara and its products. For the ECJ, the reference to Morocco in the agreement only referred to Morocco in its internationally recognized borders; the territory of Western Sahara was considered a Non-Self-Governing Territory.
The second judgment of the ECJ – a judgment responding to the submission of UK High Court of Justice of England – essentially hued to the argument laid out in the ECJ’s first ruling. The Court held that the fisheries agreement between the European Union and Morocco stood the test of law. However, as required by international law, the agreement must be limited to the territory of Morocco and cannot be extended to Western Sahara, including offshore areas belonging to Western Sahara.
In response to the two court judgments, the European Union embarked on a plan to draft a revised agreement with Morocco that would allow for the continuation of the political status quo in place before the judgments. As a first step, the European Union continued to evaluate the potential impact of the envisaged agreement on sustainable growth in Western Sahara. It then determined that for any new agreement to succeed, “the people concerned by the Agreement must have been adequately involved.” Wishing to avoid the thorny issue of determining who should be considered the “people” of Western Sahara, the European Union opted for some kind of “indirect” consultation with “the people in Western Sahara.”
In summarizing these consultations, the European Union first took note of results from Moroccan consultations with elected representatives in national, regional, and local constitutional bodies. The listed consultations were according to the “official report” from Morocco “committed to the EU-Morocco agriculture and fisheries partnership.”
This partnership was said to be “completely consistent with national socioeconomic development policy in those areas.” The European Union also referred to additional consultations conducted directly with political, socioeconomic, and civil society organizations. Most of the political officials involved in these consultations, many of whom were of Sahrawi origin, applauded trade agreements between the territory and the European Union “in the context of EU-Moroccan relations.” The same was indicated with respect to business representatives as well as human rights organizations. “Almost all” are reported to have spoken in favor of the trade agreements with the European Union. The report eventually contained a special paragraph on consultations with the Polisario Front, which, for the European Union, “is one of the parties to the UN-led peace process.”
The approach by the European Union in negotiating with Morocco about products originating from Western Sahara was, in the Polisario Front’s views, a circumvention of the judgment of the ECJ of December 2016 and thus undermined the peace process.
In July 2018, the Council of the European Union submitted to the European Parliament a draft resolution on the renegotiated trade agreement with Morocco. After the adoption of the revised version of the trade agreement and the new fisheries agreement by the Parliament, the agreements became binding law.
Upon explaining the evolution of the attempts of the European Union and Morocco to overcome the rulings of the EU courts in the various EU-Morocco trade agreements, Professor Hinz then criticized the newly negotiated trade agreements, particularly with respect to the European Union's attempts to satisfy the requirement that the consent of the people of the territory be obtained.
He noted that:
“It is correct that the ECJ did not say how the consent of the people of the territory had to be expressed and it is also correct when the above summarized report notes that the International Court of Justice uses the terms people and population without paying attention to the different meaning of the two terms.” However, he explained that “international law as it is understood and is applied by the United Nations makes these observations irrelevant.”
Article 73 of the UN Charter talks of the right to self-determination of peoples. This coincides with the words in Article 1(2) of the Charter, the Article that states the governing purposes and principles of the UN. The same wording was adopted in Article 1(1) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The ECJ did not deviate from this terminology. With this, the promotors of the right to self-determination were especially concerned with the peoples under colonial rule and their societally consolidated effort to overcome this rule.”
Further, it was certainly not the task of the ECJ to set out how the expected consent of the people was to be established. Given the fact that the right to self-determination of the Sahrawi people is still on the political agenda, there is little alternative for achieving the views of the people other than through a referendum and before that by following the well-established international practice by ascertaining the views of the movements representing the people whose right to self-determination is at stake. In the case of Western Sahara, this is the Polisario Front whose legitimacy to represent the people of Western Sahara, as has been noted by the European Parliament, has been confirmed by the United Nations."
Professor Hinz proceeded to contrast the EU stance on Western Sahara with Europe’s position on the conflict in Ukraine and Palestine - calling it inconsistent. His article continued with an analysis of Germany's shifting position on the issue of Western Sahara's sovereignty. He noted that while Germany refused for years to take a position – referring instead to the ongoing political discussions at the United Nations – after the ceasefire was nullified and President Trump officially threw US support behind Morocco’s sovereignty claims, Germany opposed Trump’s decision – leading to a diplomatic breakdown between Berlin and Rabat.
Editor’s note: In 2021, the EU General Court annulled the European Council’s decisions approving the amendments to the fisheries agreement following a challenge by the Polisario. In 2024, the CJEU upheld the annulment of the 2019 Sustainable Fisheries Partnership Agreement finding that the Agreement breached international law principles by including Western Sahara without the consent of the people of the territory, represented by the Polisario.
In 2021 Germany officially backed Morocco's autonomy proposal as a “good basis” for resolving the conflict, while continuing to support the diplomatic initiatives of the United Nations.