Trade Agreements, EU Law, and Occupied Territories – A Report on Polisario v Council

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Speaking of occupied territories, an interesting judgment should soon come from the General Court of the European Union (GC) in Action for Annulment Frente Polisario v Council (Case T-512/12), a case with fascinating international law aspects. I attended the hearing last week and think it warrants a report.

Frente Polisario is a national liberation movement (NLM) that claims sovereignty for Western Sahara – the area between Morocco and Mauritania that has been on the UN list of non-self-governing territories since 1963, and in 1975 was the subject of a fairly inconclusive ICJ Opinion. The Frente sees Morocco as an occupying power, and challenges the EU Council decision approving the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. Given that the 2010 Agreement is a development of the 2000 EU-Morocco Association Agreement, the decision will have significant implications for the application of the latter agreement, and may thwart negotiations of the so-called “Deep and Comprehensive Free Trade Agreement”.

These agreements are all silent on the question of what constitutes Moroccan territory. However, Frente Polisario claims, de facto Morocco has been applying the 2000 Association Agreement to Western Sahara. If applied the same way, the 2010 Agreement will facilitate the export to the EU of agricultural products grown in Sahrawi land and fish caught in Sahrawi waters. If Morocco’s control of Western Sahara is illegitimate, this would violate the right of the Sahrawi people to self-determination and to permanent sovereignty over their natural resources.

The case raises a number of interesting questions:

Standing of NLMs

Frente Polisario claims that its legal personality stems directly from public international law. In fact, Frente Polisario is a textbook example of an NLM with some degree of international legal personality. It controls territory in Western Sahara, and was recognized in a 1979 General Assembly Resolution as ‘the representative of the people of Western Sahara’. Security Council Resolutions refer nominally to it, and it has been a party to UN-sponsored peace talks since 2007.

The fact that Frente Polisario derives its legal personality from the international legal order should pose no obstacle to its claim, given that non-member states have filed Actions for Annulment before. Under Article 263 TFEU, ‘any natural or legal person’ may ‘institute proceedings against an act addressed to that person or which is of direct and individual concern to them’. The Sinochem test admits as claimants both any entity that has ‘acquired legal personality in accordance with the law governing its constitution’ and any entity that ‘has been treated as an independent legal entity by the [EU] institutions’.

While the Council appears to deny Frente Polisario any standing, the Commission recognizes to the Frente a ‘functional and transitory legal personality’. If this functional legal personality is modelled upon that of the UN, as established by the ICJ in the Reparations Advisory Opinion, it grants the Frente the ‘capacity to bring international claims when necessitated by the discharge of its functions’.

In Arafat and Salah (1985), the Italian Court of Cassation recognized this capacity. NLMs such as the PLO ‘enjoy a limited legal personality. They are granted locus standi in the international community for the limited purpose of discussing … the means and terms for the self-determination of the peoples they politically control’. The Court found that the lack of explicit recognition was ‘irrelevant’, since recognition is declaratory and does not ‘constitute the international legal personality’.

A more difficult hurdle is whether the act is ‘of direct and individual concern’ to the claimant as required by Article 263 TFEU. In Inuit, the CJEU confirmed that natural or legal persons ‘satisfy the condition of individual concern only if the contested act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually’.

It could be said that the 2010 Agreement affects the claimant only incidentally. But is an NLM not ‘individually’ concerned by an act that de facto applies to its territory and the people it represents? Frente Polisario’s claim is that it is not merely affected by the 2010 Agreement, but – being accepted by the UN as ‘the representative of the people of Western Sahara’ and not challenged by any competing NLM – is distinguished from all other persons. If the act in question has a ‘direct and individual effect on the legal position’ of Frente Polisario, and ‘directly prevents it from exercising its own powers’, it should have standing to file an Action for Annulment.

Jus cogens

In Kadi, the CJEU brushed aside the Court of First Instance’s view that specific regard must be paid to jus cogens under international law. However, it did restate that the EU ‘must respect international law in the exercise of its powers’, adding that ‘all [EU] acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review’. Under international law, the right of peoples to self-determination is quite a fundamental one. In East Timor, the ICJ held that it is ‘one of the essential principles of contemporary international law’.

It seems clear that this right comprises permanent sovereignty over natural resources. In Guinea/Senegal (1985), the Arbitral Tribunal noted that, once a national liberation process has taken an international character, this prevents the dominant power from exploiting natural resources in the secessionist territory. In a 2002 letter, the UN Under-Secretary General for Legal Affairs concluded that exploitation of mineral resources in Western Sahara would be illegal ‘if conducted in disregard of the needs and interests of the people of that Territory’.

The letter is ambiguous regarding whether exploitation must occur ‘in consultation with th[e] representatives’ of the non-self-governing people or whether it can be conducted ‘on their behalf’, as long as it is in their benefit. Before the GC, the Council and Commission made (somewhat generic) defences of trade agreements. Counsel for Frente Polisario retorted that they are the ones to decide what benefits their people, and alluded to a preference for subsistence agriculture. Regardless of whether this would benefit the Sahrawi people more than trade (I suspect most economists would disagree), it seems that this is their choice to make.

Frente Polisario argued extensively on the basis of Article 73 of the UN Charter. The Council and the Commission noted that this contradicts the Frente’s claim that Morocco is an occupying power, and Article 73 concerns the obligations of administering Powers. It would not be too difficult to argue that Article 73 sets out principles applicable to any state exercising sovereign powers outside its territory, but I suspect the claimant is appealing to the Charter because it is specifically mentioned in the preamble of TFEU. After Kadi, it is understandable – if disappointing – that parties feel safer grounding their arguments on an EU treaty rather than on a basic jus cogens rule.

Annulment or interpretation?

The 2010 Agreement falls within the purview of the Common Commercial Policy, allowing (in principle) for full judicial review. Although in matters of trade there seems to be significant leeway for EU institutions, the claim here is not the trade agreement is being violated; it is rather that the agreement, in its application if not in its wording, denies a people its right to self-determination.

One of the judges raised an interesting possibility: rather than annulling the act, the Court could interpret the 2010 Agreement as featuring a provision similar to the one now obligatory for the EU in agreements with Israel, refusing preferential access to goods originating from the West Bank.

The West Bank exclusion was confirmed in the CJEU’s 2010 Brita judgment. This judgment, however, was based on a view already expressed by the EU institutions with regard to the territory of Israel. In Frente Polisario, the Court would need to determine for itself, on the basis of international law, the territorial scope of application of the agreement.

No ‘decision’ from the UN

The Council argues that the EU would only be obliged to create a carve-out for Western Sahara if there was a ‘decision’ from the UN, giving as examples a Security Council Resolution or the ICJ’s Wall Opinion. In the latter case, however, there was no ‘decision’ by the UN; rather, the ICJ spelled out existing obligations of states, arising from a situation of fact. If the Wall Opinion is good law, the principles it embodies should be applied across the board. Thus, if, like the West Bank, Western Sahara is objectively speaking an occupied territory, the EU should be under an obligation to apply to the latter the same legal standards it is obliged to apply to the former.

Monetary Gold?

One final question concerns the extent to which the Monetary Gold principle is relevant here. Is the CJEU prevented from pronouncing on the matter because this would impinge on the rights of Morocco, which is not a party to the case? In Brita, the CJEU saw no problems in holding that the EU-Israel Association Agreement was ‘governed by international law’, and determining its lawful application accordingly. Much turns on whether we see the judgment as determining the rights of Morocco (as an international judgment would do) or as an internal judicial decision from a party to the 2010 Agreement, legitimately interpreting it as a party and determining whether it is lawful under domestic (i.e. EU) rules. I would tend towards the latter, but the fact that the doubt emerges reveals the extent to which this case touches upon difficult issues regarding the relationship between international law and a decreasingly international EU law.

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Eugene Kontorovich says

July 1, 2015

It is indeed a most interesting case. I address the entire subject of Europe’s economic and treaty dealings with Morocco/Western Sahara in my new research paper, “Economic Activities With Occupied Territories.”

The Commission is largely correct in its ultimate positions, but its arguments are weak make-weights. The Commission’s imperative to distinguish its treatment of Israel forces it to adopt ad hoc and inconsistent positions. In fact, as my article shows, there is simply no prohibition on dealings with occupied or other kinds of administered territories, with the exception of a thin rule for natural resources.

The U.N. Security Council opinion about oil drilling in Western Sahara was fairly clearly that there was no need for consultation with the indigenous population. That is, the specific facts presented to the Deputy Secretary General made clear that there was no consultation for the Sawahari, and he merely responded that there needs to be some benefit to them. Under the circumstances, that clearly means that consultation is not required, and this has been the approach taken by the legal advisor to the EU Parliament.

It is also worth noting that not all the questions in the present case involve natural resources. The Sawahari want tomatoes grown in their territory to not be labeled “Made in Morocco.” Such produce, grown in greenhouses, would not qualify as a natural resource.

Brita is entirely inapposite, because it depended on the existence of a separate agreement with the Palestinian Authority. Because there is no such agreement between the EU and SADR, Brita will not answer any questions.

Moreover, contrary to the Commission’s contention, there is no inconsistency between a territory being both administered within the meaning of Art. 73 and also occupied. This just means that colonies can come under occupation. There is no support for the commission’s view that the legal statutes are mutually exclusive, as my article discusses at length.

The distinction the Commission attempts to draw based on ICJ opinions and Security Council resolutions is also unconvincing. The ICJ has found Western Sahara is not under Moroccan sovereignty; thus its presence their presumptively denies the Sawahari self-determination. In any case, both the Wall and Western Sahara opinions are advisory, and can hardly be the basis of legal duties. Moreover, the Security Council has ordered Morocco to withdraw from the territory in Resolution 380, in terms far more definite than those used regarding Israel in Res. 242.

Applying the same principles as the Commission uses for Israel to Morocco will have consequences much more far reaching than the present case. The EU is considering going further than merely denying preferential treatment to Israeli products from the West Bank and the Golan, but also to categorically exclude such agricultural products, and require labeling on all such products. The EU claim that it cannot accept Israeli philosoanitary certificates from the West Bank because it does not recognize Israeli sovereignty there would surely apply to Western Sahara, where the Commission does not recognize Moroccan sovereignty. Moreover, the Commission argues that the status of the territories requires that not a single Euro of grants and other funding reach Israeli entities there. Applying such rules to Morocco would require the adoption of “Settlement Funding Guidelines” attached to all aid to Ribat, which the monarchy would surely reject.

In short, the Commission has been trying to hold the candle at both ends. It has been slowly implementing ever more restrictive measures regarding Israel while increasingly ignoring Morocco’s control of Western Sahara. Indeed, the legal rules the Commission invokes regarding Israel are probably based on a assumption that they will never have to be applied anywhere else. That makes for bad rules, as the Commission is now discovering.

Heiko says

July 1, 2015

Not all occupied territories are the same.

Philip Kisloff says

July 1, 2015

"Not all occupied territories are the same."

I assume that no irony was intended. While it is true that every circumstance is different, what is in jeopardy here is the requirement for impartiality.

I suppose the assumption, perhaps not universally shared, is that precedents help interpret the same rules consistently and so give credibility to legal institutions.

But maybe not all legal systems are the same.

Geraldo Vidigal says

July 1, 2015

Thanks for the insights Eugene. I am not so sure an advisory opinion can be dismissed, especially since subsequent practice has been generally consistent with it - no other state recognizes Western Sahara as part of Morocco, and many (none in the EU) recognize SADR. Also if I remember well counsel for the Council specifically mentioned that a Wall-like opinion would change the situation (which must have put the representative of Frente Polisario thinking...).

I understand the facts in Brita were quite specific and, as you say, allow the Court to create a distinction if it wants to. But what do you make of the following paragraphs?

"Accordingly, to interpret Article 83 of the EC-Israel Association Agreement as meaning that the Israeli customs authorities enjoy competence in respect of products originating in the West Bank would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the EC-PLO Protocol. Such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would thus be contrary to the principle of general international law, ‘pacta tertiis nec nocent nec prosunt’, as consolidated in Article 34 of the Vienna Convention."

Does it make sense for "pacta tertiis nec nocent nec prosunt" to depend on the tertius having an agreement with the EU?

Enrico Milano says

July 2, 2015


This is what Hans Corell has stated about the Commission's interpretation of "his" 2002 Legal Opinion.

«I find it incomprehensible that the Commission could find any such support in the legal opinion, unless, of course, it had established that the people of Western Sahara had been consulted, had accepted the agreement, and the manner in which the profits from the activity were to benefit them. However, an examination of the agreement leads to a different conclusion» (H. CORELL, “The Legality of Exploring and Exploiting Natural Resources in Western Sahara”, Conference on Multilateralism and International Law with Western Sahara as a Case Study, Pretoria, 5 December 2008,, p. 242).

He has reaffirmed his position (which I must take as an authentic interpretation of the Opinion) several times in the last years. It is not sufficient that the population benefits from the agreement, it must be consulted and it must agree.

I fully subscribe to your last paragraph instead. The EU is doing business with Morocco in Western Sahara, while chastising Israel on the West Bank. Policy makers in the EU should be remembered that Art. 3(5) of the TEU guides their action to "the strict observance and the development of international law, including respect for the principles of the United Nations Charter". I would expect the latter provision to apply always, not sometimes.

Eugene Kontorovich says

July 3, 2015

Dear Enrico,
I should say at the outset that I have benefited greatly from your work on recognition, Western Sahara, etc.

I know Correll has been trying to distance himself from what seems to be the natural reading of the Opinion for quite a while. However, I do not see this as a reliable guide to its meaning. The Opinion is important because it was official advice offered by the Security Council's legal advisor in response to an inquiry from the Council, not because it is what Hans Correll thinks. As far as I can tell, none of his "interpretation" of the memorandum took place while he held his U.N. post, when perhaps they could arguably have counted as something. Now, his views are not entitled to greater weight than any other publicists. He has no special competence in understanding the opinion, and perhaps less - he may feel badly about what his official position and circumstances lead him to write, may have changed his mind, etc.

As for the EU's "double standards," I think it is more than simply different treatment of like situations. There is a causal element. The EU treats Western Sahara the way it does not only in spite, but because of, its treatment of the West Bank. In regards to Israel, it has defined the consequences of occupation so severely, that is simply cannot find such a situation exists elsewhere. For example, the EU's funding guidelines for Israel simply could not be applied to Morocco or Turkey without a major rift in their relationships. So it easier for the Commission to say an entirely different set of rules apply in those situaiotns.

Heiko says

July 9, 2015

Well, Philip, the history is very different. Can we call the annexation of the Western Sahara an occupation?