November 28
2021
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23rd November 2021
External Relations & Trade Human Rights Justice & Litigation

Op-Ed: “Who speaks for the Sahrawis? The General Court’s Front Polisario v Council judgments of 29 September 2021” by Aravind Ganesh

The General Court recently issued several judgments, all named Front Polisario v Council (Joined Cases T-344/19 and T-356/19; Case T-279/19), which represent the latest episodes in long-running complex litigation between the Front Polisario on the one hand, and the EU institutions and Morocco on the other.

The disputes arose out of several international agreements between the EU and Morocco to exploit natural resources in the Western Sahara, a region the size of Italy that has been ‘administered’ by Morocco since 1974. While Morocco considers the Western Sahara its integral territory, the UN has classified it as a ‘non-self-governing territory’, while yet other jurisdictions deem it illegally occupied by Morocco. Moroccan rule is resisted by the Front Polisario, a national liberation movement that has been recognized as ‘the representative of the people of Western Sahara’ by the UN (fn 1).

In the two recent Front Polisario v Council judgments, the General Court annulled Council decisions on the conclusion of an Sustainable Fisheries Partnership Agreement between the EU and Morocco, and on the amendment of Protocols 1 and 4 of the Association Agreement between the EU and Morocco.

‘Not guilty, but don’t do it again!’: The jurisprudential hinterland

I have argued elsewhere (here, and here at chapter 7) that few things unmask the emptiness of the EU’s human rights and Völkerrechtsfreundlichkeit rhetoric as much as the earlier Polisario (C-104/16) and Western Sahara Campaign (C-266/16) judgments. Recall the principle that the EU ‘is bound to observe international law in its entirety…’ (Article 3(5) TEU, Air Transport Association of America, C-330/10, paragraph 101). In Polisario and Western Sahara Campaign, the Court of Justice employed this principle not as a standard to be met in the EU’s relations with the wider world − failing which an act might be annulled or even give rise to liability to those ‘wronged’ − but as an ‘unrebuttable presumption of rectitude’ according to which the EU may never be said to have done ‘wrong’ in its external relations, even if it very much looks like it!

The most egregious example was Western Sahara Campaign (C-266/16): AG Wathelet’s Opinion included several charts demonstrating that the fishing grounds contemplated by an EU-Morocco ‘fisheries partnership agreement’ lay off the Western Sahara coast. The Court of Justice first dismissed these because the geographical coordinates had been submitted one day after a specified deadline – as if the parties to a fisheries agreement would not have had any clue where the fish were to come from before then. The Court then went on, however, to hold that they would not have mattered even if they had been submitted on time (Western Sahara Campaign, paragraph 148), because ‘it would be contrary to the rules of international law… which the European Union must observe and which are applicable mutatis mutandis in this case, if it were agreed that the waters directly adjacent to the coast of the territory of Western Sahara were to be included within the scope of that agreement.’ As such, ‘the European Union could not properly support any intention of the Kingdom of Morocco to include, by such means, the waters in question within the scope of that agreement’ (ibid, paragraph 71).

Now, the question of whether the EU ‘could properly’ support Moroccan claims over Sahrawi waters is different from that of whether it did support them improperly. For the Court of Justice, however, the latter is something that absolutely may not be ‘conceded’ (Polisario, C-104/16, paragraph 123). Accordingly, it did not matter that the parties had literally drawn out their plans to fish in Sahrawi waters on a chart, any more so than it mattered in Polisario that the Commission sent officials from the Food and Veterinary Office to the Western Sahara at the invitation of Moroccan authorities to ensure agricultural produce met EU health standards. (Polisario, T-512/12, paragraphs 79-80; AG Wathelet’s Opinion in Polisario, C-104/16, points 98–99). These – and more – were all ‘too illegal to be true.’

Despite the omertà imposed over the EU’s past apparent improprieties with the Western Sahara, the requirement that the geographical scope of the agreements be limited to Moroccan territory ‘proper’ prevents Sahrawi resources from continuing to be extracted under the agreements. In this way, the Court of Justice in Polisario and Western Sahara Campaign indirectly handed the Front Polisario avictory, and the EU institutions a diplomatic headache with a crucial partner on the African continent.

Sneaking behind sovereignty: Subsequent treaty arrangements

The Council subsequently sought to amend the agreements to refer expressly to the Western Sahara. This alone would not have been enough, because of the Article 34 VCLT rule of the relative effect of treaties. The Front Polisario, for its part, refused to participate in the renegotiation process for fear that it would lead to a consolidation of Moroccan control over the territory (Commission Staff Working Document, Report on benefits for the people of Western Sahara and public consultation on extending tariff preferences to products from Western Sahara (2018), p. 32). To get around this obstacle, the Commission and the Council conducted extensive consultations in the Western Sahara resulting in a document claiming, firstly, that EU market access and foreign direct investment would significantly advance the economic welfare of ‘local populations’ in the Western Sahara; and secondly, that ‘most people now living in Western Sahara [were] in favour of the extension of tariff preferences to products from Western Sahara under the EU-Morocco Association Agreement’ (ibid, p. 31).

Odermatt comments that the focus on ‘benefits’ was presumably inspired by the ‘Corell Memorandum’ issued by the UN Under-Secretary-General for Legal Affairs and Legal Counsel, which opined ‘that the interests of the peoples of Non-Self-Governing Territories [were] paramount, and [that] their well-being and development is the “sacred trust” of their respective administering Powers…’ (paragraph 22). The resort to ‘stakeholder’ consultations in the face of an uncooperative third (quasi)sovereign is also reminiscent of Benvenisti and Ryngaert, who have in various ways attempted to justify ‘legislation for humanity’ or ‘unilateral’ measures furthering ‘global values’, or ‘common interests.’ It is hard to see, however, how the institutions’ approach might even begin to constitute a defensible interpretation of any of these theories.

Overall, the Commission document makes for unedifying reading: One is left with a distinct sense of human rights and development concerns being instrumentalized for the extraction of fisheries, phosphate, and agricultural resources. Odermatt notes that it ‘examines the question almost entirely in economic terms’ as well as ‘downplays the serious concern that the agreement would have the effect of cementing the status quo and consolidating Morocco’s illegal occupation of the territory.’ This is exactly right: first, a people’s freedom is not a commodity to be bought and sold, and second, the process of determining the Western Sahara’s future must take at its starting point the territory at the moment of its ‘independence’ in 1974.

In the recent Front Polisario v Council judgments, the General Court rightly rejected the institutions’ mercenary strategy by holding that ‘the notion of “concerned populations” envisaged by the institutions’ differed fundamentally from that of the ‘people of the Western Sahara.’ Crucially, the General Court explained this difference not in terms of the current population of the Western Sahara including vast numbers of Moroccans settled there by the Moroccan government, but because the idea of a ‘local population’ lacks the ‘political content’ inherent in the concept of a ‘people’ deriving ‘notably, from the right of self-determination…’ (Joined Cases T-344/19 and T-356/19, paragraph 329; Case T-279/19, paragraph 337).

It appears from this that the General Court holds on to distinctly old-fashioned, ‘republican’ conceptions of peoplehood and sovereignty, whereby a ‘people’ is not an aggregation, but a collective that expresses itself only through its institutions, such that even if the population of the Western Sahara had been preserved immaculately since 1974, and every single individual had welcomed the treaty amendments, it would still have be improper to sneak behind appropriate institutions through ‘local consultations.’

Another fascinating section of the judgments concerned the argument by the EU institutions that the Front Polisario’s entitlement to participate in the international self-determination process relating to a territory did not automatically translate to a right to participate in negotiations concerning the economic relations of that same territory, and, that in the absence of another UN-recognised organisation representing the Sahrawi people in such trade negotiations, requiring the Front Polisario’s participation would effectively give it a ‘right of veto’. The impertinence is breathtaking; the institutions effectively presume the EU has a vested option on Sahrawi resources, upon which the Front Polisario’s non-cooperation constitutes an unreasonable constraint. The General Court’s response was appropriately curt:

‘It suffices to recall… [that] it was not for the Council to decide whether it was possible to do without the consent of the people of the Western Sahara to conclude the disputed agreement.’ (Joined Cases T-344/19 and T-356/19, paragraph 346; Case T-279/19, paragraph 364).

For all that, however, there is something to be said for the first half of the argument. Even if the Western Sahara was assumed to be under Moroccan occupation – the characterisation that is presumably most convenient to the Front Polisario, and which the EU courts have carefully avoided because it is anathema to Morocco – the applicable law would still recognise it as having administrative rights displacing those of the Front Polisario, even if these are only temporary, limited to the maintenance of public order, and ‘held on trust’ for the latter. In short, an occupier is a ‘trustee’ not just of the ousted (quasi)sovereign, but also of the occupied population (fn 2). Defective though its voice may be, and within its strictly limited remit, there is an argument that the occupier must be taken as speaking for the occupied people.

‘What a tangled web we weave!’ Aiding and assisting international wrongs

The question then becomes not whether the Front Polisario’s consent is required, but whether an agreement between the EU and Morocco disposing of the Western Sahara might implicate the EU in international wrongs committed by Morocco against the Front Polisario and the Sahrawi people, for instance by exploiting Sahrawi resources unsustainably, diverting them to Moroccan settlers in the territory, etc, etc.

It would not, to my mind, be sufficient to point to the high bar of Article 16 ARS or Article 14 ARIO on secondary liability for aiding and assisting international wrongs. The onerous requirements on knowledge of the circumstances of the wrongful act might be appropriate in ‘ordinary’ cases, where parties to a treaty are presumed to have the full capacity to speak for their subjects. Due to its restricted powers, as well as the many contradictions between ‘its own security interests, the interests of the ousted government, and those of the local population,’ (fn 2) an occupier is, by contrast, an inescapably conflicted party, such that any counterparty is immediately put on notice of the occupier’s potential for self-dealing in respect of the occupied territory. There must therefore be an ‘affirmative’ duty on the part of an occupier’s treaty counterparty to take reasonable steps to ensure the absence of international wrongs.

The Commissions efforts discussed above do not appear to meet this standard. For instance, after enumerating the types of benefits likely to accrue to the ‘local population’ in the Western Sahara from tariff-free agricultural exports, it states that ‘[i]t is clearly impossible to say that the overall economic impact of such growth would systematically and directly benefit indigenous people. It can only be assumed that they would benefit, at least indirectly’ (Commission Staff Working Document (2018), page 18). Similarly, in response to concerns of discrimination against indigenous Sahrawis in the phosphate industry, the report simply states ‘The Commission has no way of checking locally to see which workers are Sahrawi; and again, it is not for the EU to decide who should be counted as part of the indigenous population.’ (ibid, p. 24) The results of the Commission’s efforts are, at best, inconclusive.

As such, it might be entirely possible for the Court of Justice to overrule on appeal the General Court’s findings concerning the Front Polisario’s right to participate in the formation of trade relations between the Western Sahara and the EU, on the grounds, say, of the institutions being possessed of a large margin of appreciation concerning the legality of excluding the Front Polisario. Doing this, however, would open up entire new cans of worms. That said, however, one wonders if the Court of Justice might find solutions for these as ‘creative’ as those in Polisario and Western Sahara Campaign.

 

Aravind Ganesh is Postdoctoral Researcher at the Faculty of Law, Maastricht University. He is the author of ‘Rightful Relations with Distant Strangers: Kant, the EU, and the Wider World’, Hart/Bloomsbury, 2021.

 

(fn 1) UNGA Res 34/37, Article 7

(fn 2) Benvenisti, The International Law of Occupation, 2nd edition (2012) pp. 6-7, 72-76.

(fn 3) Ibid., p. 69.

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