Western Sahara, the Frente Polisario, and ‘the people’

In 2016, the Court of Justice of the European Union (CJEU) ruled in Polisario Front that under established treaty law principles, EU-Morocco agricultural trade agreements cannot apply to the Moroccan-controlled Western Sahara without the consent of ‘the people of Western Sahara’. Building on that decision, the CJEU ruled earlier this year in Western Sahara Campaign UK that the same principle applied to the EU-Morocco fisheries agreement. In the latter decision, the CJEU additionally justified its holding on Article 3(5) of the Treaty on European Union (TEU), which states that, ‘[i]n its relations with the wider world, the Union shall … contribute to … the strict observance and the development of international law, including respect for the principles of the United Nations Charter.’ Rather than a prohibition, the Court applied Article 3(5) TEU as an interpretive canon requiring EU external action to be construed in conformity with basic norms of international law. By prioritizing the interpretive side of Article 3(5) TEU’s interpretative-prohibitive function, it has been observed, the CJEU ‘ensured continuity in international legal relationships and showed some deference to the EU’s ‘political branches’ in the conduct of its external action.’

Yet, in the case of Western Sahara, the CJEU’s decisions in Polisario Front and Western Sahara Campaign have not led to greater respect for international law in the Union’s external relations, suggesting that deference may have been misplaced. The European Commission has purported to obtain consent from ‘the people of Western Sahara’ through consultations with an opaquely-selected assortment of actors in the territory after finalizing negotiations over its latest trade agreement with Morocco. While understandable that the Commission would avoid the morass of defining ‘the people’ at a granular level, which has bedevilled the UN mission for the referendum in Western Sahara, MINURSO, the Commission has completely elided over the distinction between Sahrawi and Moroccan interests in the territory. Its agnosticism on the identity of ‘the people’, which it can only maintain through its questionable position on Western Sahara’s legal status, validates the effective integration of the territory into Morocco and thereby fails to show respect for Saharan self-determination.

The CJEU bears some responsibility for this state of affairs. In Polisario Front, the Court relied on treaty law principles to avoid resolving the thornier international law questions of defining ‘the people’, what constitutes its consent, and how it may obtained, an approach I would characterise as judicial minimalism. The CJEU ruled that the international law principle of the relative effect of treaties, under which a treaty must neither impose obligations nor confer rights on third States or non-State subjects of international law without their consent, prohibits the application of EU-Morocco trade agreements to Western Sahara, as a separate territory entitled to decolonisation and independence under General Assembly resolution 1514 (XV), without the consent of its ‘people’. By concluding that the agreements could not apply, as a matter of international law, to Western Sahara without such consent, the CJEU avoided deciding whether the Frente Polisario had standing to challenge the agreements’ validity. The Court thereby avoided considering the Polisario’s relationship, as the recognized national liberation movement of the Sahrawi people, to the territory of Western Sahara and ‘the people’.

Had the CJEU addressed these thornier questions, as the General Court and Advocate General Wathalet did, it might have given real effect to its finding of a consent requirement. Instead, while its minimalist approach was certainly appealing in the abstract, it was destined to fall short in practice given the established leanings of the EU’s political organs, which are reflected in the Commission’s legal position on the Moroccan presence in Western Sahara.

The Commission has consistently defined Western Sahara as a Non-Self Governing Territory (NSGT) with Morocco as its de facto administering power. The unsubstantiated assumption underlying this position is that a territory cannot be both non-self-governing and occupied. The Commission has justified this position on the absence of Security Council resolutions expressly declaring the Moroccan presence an occupation, much as the UN Legal Counsel’s opinion on the exploitation of Saharan natural resources presupposed Morocco an administering power rather than an occupying power for admittedly political reasons. The Commission’s justification is legally dubious: ‘occupation’ is not a magic word but refers to a legal situation which the Security Council has recognized, starting with resolution 380 (1975), calling upon Morocco to withdraw all participants in its ‘Green March’ on Western Sahara, including tens of thousands of its armed forces; and countless resolutions recognizing that Moroccan forces yield effective control. Further, the lack of a Council resolution expressly recognizing Western Sahara as occupied is largely down to France, which has supported Morocco’s autonomy proposals and threatened to veto any Security Council resolution favouring the independence of Western Sahara. In contrast, the Polisario claims that Western Sahara is an NSGT, with Spain remaining the de jure administrating power despite its unilateral withdrawal, under Moroccan occupation. Relevant General Assembly resolutions support this position.

A coalition of 89 Sahrawi organisations which boycotted the consultations argue that the Polisario Front ruling prohibits the EU from entering agreements covering Western Sahara ‘without the consent of the Saharawi people through its legitimate representative, the Frente Polisario.’ In contrast, the EEAS claims to have met its burden through meetings with a Polisario representative, civil society organisations that are ‘very supportive of Polisario,’ and ‘politically neutral’ organisations, as well as businesses, including Moroccan state-owned enterprises, operating in Western Sahara.

Whether the Commission’s consultations are sufficient to ascertain the will of ‘the people’ arguably depends on the role ascribed to the Polisario – essentially the standing inquiry that the General Court and Advocate General addressed, and the CJEU avoided, in Polisario Front. As the Advocate General noted, the standing in EU courts of a UN-recognized representative of the people of a non-self-governing territory posed a question of first impression for the CJEU.

The EU Council argued that the Polisario lacks capacity to initiate proceedings under Article 263(4) TFEU because it is not legally constituted under the laws of any State and lacked ‘direct and individual concern’ in the Council decision adopting the relevant EU-Morocco trade agreement. The Polisario countered that as the ‘incarnation of the sovereignty of the Sahrawi people’, its existence could not depend on the internal law of another State. Rather, the Polisario claimed ‘the international legal personality granted to national liberation movements under international law’ based on UN recognition as representative of the Sahrawi people in relation to the Western Sahara question, its internationally-recognized peace agreement with Mauritania; and on the EU plane, European Parliament resolutions urging it and Morocco to cooperate fully with the UN and ICRC. The General Court accepted that in the ‘very specific circumstances' presented, the Polisario should be regarded as a legal person under Article 263(4) TFEU; and that the legal effects of the Council decision directly and individually concerned the Polisario, as the other participant in UN-led negotiations to determine Western Sahara’s final status.

The Advocate General concluded that the Polisario has legal capacity but lacked direct and individual concern in the Council decision. Significantly, he rejected an ‘absolute identity between the territory and person … who makes claims over it’ and argued that, by General Assembly resolution 34/37 (1979), the UN had recognized the Polisario as the Sahrawi people’s representative only in the Western Sahara political process, without giving the Polisario the right or obligation to defend the commercial interests of Western Sahara. Because Spain remains the de jure administering power in Western Sahara pursuant to Article 73, the Polisario was not individually concerned as it was not the only entity with capacity to represent ‘the people‘.

The Advocate General’s approach, while logical, would seem legally and practically misguided. Accepting the Polisario’s status as representative of the Sahrawi people while denying it is therefore ‘intrinsically entitled to defend’ the territorially-based interests of Western Sahara (e.g. its natural resources) runs contrary to the emergent international law principle that recognition of a ‘people’ entitled to self-determination implies a relationship with a territory, even if that ‘people’ has been expelled from the territory and replaced on it. Thus, as Konstantinos Mastorodimos has argued convincingly, the legal personality of national liberation movements derives from the ‘people’ they represent and the separate status of the colonial territory.

Additionally, by asserting that the dispute over EU-Morocco economic dealings covering Western Sahara is not part of the political process, the Advocate General took an exceedingly narrow view of what constitutes a political process toward resolving international disputes. Having found the Polisario’s international recognition limited to the UN-led political process, the Advocate General presumably understood that process only to include negotiations under the aegis of the Secretary-General’s Special Representative or Personal Envoy, or the long-delayed and now-unlikely referendum under the aegis of MINURSO. This UN-centric view of political processes is ill-suited for the emerging global governance regime generally, and ‘frozen conflicts’ such as Western Sahara in particular, which in a renewed era of Security Council deadlock, are increasingly left to ‘groups of friends’, led in this case by the US and two EU members: France (which is partly responsible for the impasse in decisive Security Council action on Western Sahara) and Spain.

Considering that the Advocate General did not examine in depth the rights and responsibilities which the UN has ascribed to various national liberation movements, his opinion was inadvisably absolute in stating that the Polisario’s role in Western Sahara ‘does not relate at all to economic and social affairs’. This, despite the fact that the Polisario exercises responsibility for economic and social affairs, through its self-proclaimed Sahrawi Arab Democratic Republic, over the roughly one-quarter of Saharan territory that it controls and in Sahrawi refugee camps in Tindouf, Algeria. Discounting the Polisario’s responsibility for the refugee population, whom MINURSO has confirmed among ‘the people’, based on their current presence outside Saharan territory is incongruent with, e.g., the Commission’s position that Turkish Cypriots are current EU citizens although outside of Republic of Cyprus government control and notwithstanding the suspension of the Union’s acquis to Northern Cyprus, the obvious differences between the Cypriot and Saharan contexts notwithstanding.   

The Advocate General’s position in this regard was all the more curious given that he recognized ‘the legal situation of territories can certainly be affected by the provisions of an international agreement, irrespective of whether those provisions produce a direct effect,’ and concluded that the application of trade agreements with Morocco to Western Sahara ‘necessarily and inevitably implies recognition’ of Moroccan sovereignty over the territory. He thereby recognized that Morocco’s economic relations with third parties pertaining to Western Sahara could have the effect of entrenching its authority over the territory, as the ICJ recognized in the Namibia advisory opinion. Yet by indulging the legal fiction that Spain, insofar as it remains the de jure administering power, alone maintains the right and obligation to represent the commercial interests of Western Sahara, the Advocate General arguably gave the EU’s political organs a legal justification for circumventing the Polisario entirely, which the Commission has nearly done in its consultative process.

Amin M Husain has illustrated that, where a democratic mandate from the ‘people’ is impossible under colonial rule or occupation, international and regional organisations have generally extended recognition to national liberation movements by examining whether they are effectively leading the liberation struggle toward independence. The Commission’s suggestion that the Polisario’s voice should be counterbalanced with ‘politically neutral’ and pro-integration organisations in ascertaining the will of ‘the people’ is, at best, in tension with the EU’s professed commitment to the political process, and at worst is nailing its pro-integration colours to the mast.

Thus the paradox: the CJEU in Polisario Front and Western Sahara Campaign cleverly vindicated the separate status of Western Sahara without having to resolve, as the General Court and Advocate General attempted to, the territory’s current status or define the relationship between the territory, the Frente Polisario, and ‘the people’. But this judicial minimalism left a vacuum that the Commission has filled in a way that undermines the Polisario’s status as representative of the Sahrawi people, risks marginalising its role in the Western Sahara political process, and calls into question the EU’s commitment to the ideal embodied in Article 3(5) TEU.