Friday 23 December 2016

EU/Morocco relations and the Western Sahara: the ECJ and international law

Markus W. Gehring: University Lecturer, University of Cambridge; J.S.D. (Yale), LL.M. (Yale), Dr jur. (Hamburg), MA (Cantab); Deputy Director, Economic Law at CIGI 

On Wednesday 21 Dec 2016 the Court of Justice rendered its appeals decision in the case C-104/16 P Council v. Front Polisario. This was a Grand Chamber judgment under the expedited procedure which overturned the decision by the EU General Court in T-512/12 Front Polisario v Council decided a little over a year ago.


The Front Polisario (Frente Popular de Liberación de Saguía el Hamra y Río de Oro) aims to end Moroccan presence in the Western Sahara territory and has been recognised internationally by over 40 countries with Algeria being regarded as its main backer. It had a difficult year (see here and here) after its leader died and Morocco, after a thirty-year absence from the African Union, applied to re-join (a vote will be held in January 2017). While Polisario did not win this case, the judgment will hardly be welcomed by Morocco either.

General Court judgment

As discussed by Geraldo Vidigal in EJILTalk, the decision by the General Court had been seen as an extraordinary victory by the Polisario as it was granted standing to bring a case against the Council decision concerning reciprocal liberalisation of certain agricultural products between the EU and Morocco (Liberalisation Agreement). The General Court recognised, contrary to objections by the Council and Commission, that Polisario had legal personality and could prove direct and individual concern (the standing requirement to challenge a decision in the EU courts, unless the challenger is an EU institution or Member State).

Polisario was concerned because the agreement, despite differing interpretations of its territorial scope between Morocco and the EU, was applied to Western Sahara. Polisario in particular argued that 140 undertakings based in Western Sahara were included in the EU Commission’s website list of approved Moroccan exporters, and both the Council and Commission had indicated at the oral hearing that the contested decision was de facto applied to the territory of Western Sahara (para 87). The General Court cited the C-386/08 Brita judgment by the CJEU extensively because in that judgment the Court had rejected products produced in the West Bank as being covered by the EU/Israel trade agreement, but did not rely on this judgement because neither the EU nor any of its Member States had ever recognised Polisario as representing Western Sahara as a sovereign state. However, the General Court confirmed direct and individual concern for Polisario to sue because the EU institutions by not including a clause excluding the Western Sahara territory from the application of the EU-Morocco Association Agreement had ‘at least implicitly’ accepted the interpretation of the Association Agreement which applied it to the part of Western Sahara controlled by Morocco (para 102).

On the substance, the General Court rejected all of Polisario’s substantive claims bar one. It agreed with Polisario that the Council had overstepped its wide margin of discretion in international relations by not ensuring that the exploitation of natural resources of Western Sahara under Moroccan control is beneficial to the population of that territory and thus does not violate the population’s fundamental rights. It said 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, including, in particular, the rights to human dignity, to life and to the integrity of the person (Articles 1 to 3 of the Charter of Fundamental Rights), the prohibition of slavery and forced labour (Article 5 of the Charter of Fundamental Rights), the freedom to choose an occupation and right to engage in work (Article 15 of the Charter of Fundamental Rights), the freedom to conduct a business (Article 16 of the Charter of Fundamental Rights), the right to property (Article 17 of the Charter of Fundamental Rights), the right to fair and just working conditions and the prohibition of child labour and protection of young people at work (Articles 31 and 32 of the Charter of Fundamental Rights)” (para 228). 

By leaving the question solely to the Moroccan authorities, the Council failed to fulfill its obligation to examine all elements of the case. As a consequence the General Court annulled the Council decision. Several international commentators hailed the decision as beneficial for the international protection of human rights. Eyal Benvenisti strongly welcomed the decision because it highlighted that even indirect contributions to human rights violations through trade could violate international law.

ECJ judgment 

In this week’s appeal judgment, the ECJ Grand Chamber saw things differently. It largely followed, though in much fewer words, the Opinion of Advocate General Wathelet who on 13 September 2016 had concluded that the Court should set aside the General Court decision and dismiss the action by Polisario as inadmissible. He also expressed the opinion that the General Court erred in law when it applied the EU Charter of Fundamental Rights to the population of the Western Sahara (para. 272), although he did accept that international human rights law generally could apply to the EU’s decision.

The Council, supported by the Commission, alleged six errors of law of which the Grand Chamber only examined one in detail. It focussed on the standing of Polisario and the question whether the Liberalisation Agreement applied to Western Sahara. The Court of Justice did not see the finding that the Liberalisation Agreement applied to that territory as a finding of fact, but rather a legal interpretation by the General Court. The Court of Justice concluded that the General Court went too far when it ruled that the absence of an application clause in the Association Agreement meant that the EU had accepted the view by the Moroccan authorities which see Western Sahara as an integral part of the Kingdom of Morocco.

The Court of Justice then proceeded to analyse: a) the principle of self-determination; b) Article 29 of the Vienna Convention on the Law of Treaties, on treaties' territorial scope (“Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”); and c) the relative effect of treaties. The Court of Justice concluded that given the erga omnes nature of the right to self-determination by the peoples of a Non-Self-Governing Territory and its status as an essential principle of international law, the General Court erred in law when assuming that the Association Agreement also applied to Western Sahara. 

With regards to Article 29 of the Vienna Convention the Court of Justice clarifies that ‘its entire territory’ only refers to the territory internationally recognised, and not the territory under its jurisdiction which would be the wider expression. As such, the Court sided with the Commission which argued that any extension of the application must be expressed in the agreement. Finally the Court of Justice also invoked the pacta tertiis principle by which “treaties do not impose obligations, or confer any rights, on third States without their consent” (para 100). It concluded that the people of Western Sahara according to the ICJ Advisory Opinion on Western Sahara constituted a third party in this respect and had not expressed their consent. In the view of the Court, the Liberalisation Agreement as a subsequent agreement is incapable of expanding the scope of the previous Association Agreement. This interpretation can also not be altered by the rule on subsequent practice in Art. 31 Vienna Convention. Though the Commission and the Council were aware that the Moroccan authorities had been applying the Association Agreement to Western Sahara for many years and the institutions never opposed such application and though certain tariff preferences de facto applied to product originating in Western Sahara, this did not constitute clear subsequent practice. As such, the agreements did not apply to Western Sahara and therefor Polisario lacked standing in the European Courts. 


This judgment contributes to the practice of international law, like many domestic courts would, in that it clarifies the rules of interpretation in the Vienna Convention on the Law of Treaties. It clarified how the territorial scope of the international agreements of the EU cannot be interpreted without reference to general public international law. The fact that the EU and Morocco ‘agree to disagree’ about the application of the Association and Liberalisation Agreements (AG Opinion para 67), could not alter the fact that in the EU’s view said agreements only applied to the territory of Morocco as internationally recognised.

Overall the Court’s judgement highlights that its practice is becoming more sophisticated, carefully evaluating the international legal arguments and not just accepting the Commission’s or Council’s view on the matter. In many ways this highlights that EU External Relations law has a greater body of international case law to rely upon. The impact on EU-Morocco relations as highlighted by Geraldo Vidigal might become a bit trickier. While the Council tried to side with Morocco by highlighting that despite the restrictive scope of the Association Agreement it could be seen as “application without recognition” (AG Opinion para 67), the Court very clearly asserted that the application of the Association Agreement to Western Sahara required an explicit treaty provision. This might make future relations between these two important partners more difficult. So, in some ways this judgment constitutes a bit of a pyrrhic victory for Morocco.

It remains to be seen if Polisario might bring a new case trying to challenge the de facto application of the agreements to the territory also administered by Morocco. (Note that another case on these issues is already pending before the ECJ, following a reference by a UK court, discussed further on the UK Human Rights Blog).  Unfortunately, the Court of Justice did not venture, beyond self-determination, further into the territory of human rights application to trade agreements. As Thomas Cottier wrote in 2002, this will remain an important field to be discovered.           
Barnard & Peers: chapter 24


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