EU extraterritorial obligations with respect to trade with occupied territories: Reflections after the case of Front Polisario before EU courts

This paper provides a critical analysis of the recent judgments of the General Court of the EU and the Court of Justice of the EU in the case of Front Polisario v Council , which concerned the application of the EU-Morocco Liberalisation Agreement to products from Western Sahara. The central argument is that both EU courts failed to adequately consider the nature of the Moroccan presence on Western Saharan territory: a belligerent occupation. In light of this occupation, the courts should have channelled the EU’s extraterritorial obligations vis-à-vis the population of Western Sahara through the tailor-made regimes of the law of occupation and the international duty of non-recognition. It is argued that the application of the Liberalisation Agreement may notably run afoul of the EU’s duty of non-recognition, but that the Agreement may still apply insofar as it benefits the local population. More fundamentally, after Front Polisario , the EU may want to reconsider all trade relations in respect of occupied territories by distinguishing between legitimate and illegitimate products.