The recent judgments of the General Court of the EU (GC) and the Court of Justice of the European Union (CJEU) in the case of Front Polisario v Council raise salient questions regarding the European Union’s (EU) extraterritorial obligations in respect of EU trade agreements covering products from territories occupied by an EU trading partner, in this case, from Western Sahara, a territory claimed by Morocco.1
This contribution commends the GC and the CJEU for reviewing the validity and territorial scope of application of the agreement in light of fundamental rights and the right to self-determination of the Saharawi people of Western Sahara. The review resulted in the partial annulment of the agreement by the GC and non-application of the agreement in respect of Western Sahara by the CJEU. We argue, however, that unfortunately, both EU courts failed to properly appraise the exact legal nature of the territorial situation in Western Sahara, possibly because of its international political sensitivity: namely a belligerent occupation by Morocco following, and accompanied by violations of peremptory norms of international law. The characterisation of the territorial situation as an occupation, which is in addition rooted in aggression and characterised by ongoing violations of the right to self-determination, has specific legal consequences under the international law of occupation and the duty of non-recognition. These consequences give a specific shape and content to the EU’s extraterritorial obligations in the context of its trade relations in respect of occupied territories. As it happens, these consequences partly overlap with those flowing from the EU court’s judgments, in particular the GC’s judgment, which is based on fundamental rights. Still, explicit reliance on occupation law and the duty of non-recognition gives additional expression to the principled disapproval of illegal territorial situations by the international community, of which the EU forms part. It enables the EU, and its courts, to engage more explicitly with the applicable international law and to act as its (decentralised) law-enforcer in keeping with its constitutional commitment to contribute to the strict observance and the development of international law laid down in Article 3(5) of the Treaty on European Union (TEU). In addition, reliance on occupation law and the duty of non-recognition keeps the door ajar for natural resources exploitation and (preferential) international trade that could benefit the local population in a way that seems foreclosed by the CJEU’s judgment.
This contribution first gives a brief overview of the GC and CJEU’s Front Polisario judgments (Section 2). Subsequently, the alternative legal regimes of occupation law (Section 3) and the international duty of recognition (Section 4) are set out, including the legal consequences which should follow for EU trade agreements in respect of occupied territories. Section 5 concludes.
The disciplinary perspective of this contribution is one of public international law rather than of EU law. Methodologically, one particular agreement, the EU-Morocco Liberalisation Agreement (or more precisely the EU Council decision on that Agreement) is reviewed in light of the applicable legal regimes of occupation law and the duty of non-recognition. The relevance of the conceptual analysis however exceeds that specific agreement and, in fact, extends to all EU agreements, and even all international trade with respect to products originating from occupied territories. This contribution does not deny that EU trade agreements in general may raise distinct fundamental/human rights concerns, which invites the question whether the EU is under an obligation to apply such rights extraterritorially. The authors do not, however, thoroughly engage with issues of human rights extraterritoriality, apart from setting out the GC’s reasoning in this respect. The authors’ argument is that the distinct international legal status of an occupied territory mandates, in the first place, the application of the international law regimes of occupation law and the duty of non-recognition. In case of occupation and breaches of peremptory norms of international law, it does not suffice to rely on the right to self-determination only for purposes of treaty interpretation, or of determining the extraterritorial reach of EU fundamental rights. Rather, the EU and its courts should observe all rules of international law that are relevant to the situation at hand.
2. The GC and CJEU judgments in Front Polisario
This section discusses the legal reasoning of the GC and the CJEU in Front Polisario. We refrain from giving an overly detailed overview of the lessons for substantive and procedural EU law that may be drawn from the judgments. This has already been done extensively elsewhere.2 Instead, we aim to provide the reader with the basic understanding of both judgments that is necessary for a proper grasp of our argument concerning the EU courts’ lack of engagement with the international law of occupation and the duty of non-recognition, which Section 3 and Section 4 develop further. Under Section 2.1, we give a succinct summary of the political situation in the Western Sahara that informed the legal claim brought before the European courts. In Section 2.2 and Section 2.3, we present the legal reasoning of the GC and the CJEU respectively. In Section 2.4, we formulate a number of critical observations on the courts’ reasoning, which serve as a prelude to the development of our main arguments based on occupation law and the duty of non-recognition.
2.1. Background to the Front Polisario case
Historically, Western Sahara has been both a colony and a province of Spain, which withdrew from the territory in 1975. Following the Spanish withdrawal, Morocco claimed sovereignty over Western Saharan territory. After an armed conflict, which also included neighbouring Mauritania, Morocco took effective control of most of the Western Saharan territory.3 The Saharawi national liberation movement, the Front Polisario, currently fights for the territory’s autonomy. It controls only a minor part in the east of the Western Saharan territory, with large populations of Saharawi refugees living across the Algerian border.4 No State has recognised Morocco’s sovereignty over the Western Saharan territory. The United Nations continues to consider Western Sahara as a non-self-governing territory in the sense of Article 73 of the UN Charter and both the International Court of Justice (ICJ) and the UN General Assembly have recognised the right to self-determination of the ‘people of Western Sahara’.5
The legal claim brought before the EU courts by Front Polisario was an action for annulment of an EU Council Decision that had approved the conclusion of the Liberalisation Agreement between the EU and Morocco, that is a bilateral trade agreement.6 In essence, the Front Polisario claimed that this Agreement did not distinguish between products produced in Morocco and products originating from the Moroccan-controlled territory of Western Sahara. According to the claimant, the Council’s failure to draw this distinction amounted to a violation of the fundamental rights of the people of Western Sahara and constituted a violation of public international law, in particular the Saharawi people’s right to self-determination.7
2.2. The General Court of the European Union
Front Polisario formulated a total of 11 pleas on the basis of both EU law and international law. These ranged from an infringement of fundamental rights and a breach of the fundamental values of the EU and the principles governing the EU’s external action, to the alleged ‘incompatibility of the contested decision with general international law … and the law of international liability in EU law’.8 The GC rephrased these pleas into the fundamental question whether there would be an ‘absolute prohibition against concluding an international agreement on behalf of the European Union which may be applied to a territory in fact controlled by a non-member State, without the sovereignty of that State over that territory being recognised by the European Union and its Member States or, more generally, by all other States (“the disputed territory”) and, where relevant, the existence of discretion of the EU institutions in that regard, the limits of that discretion and the conditions for its exercise’.9 In response to this question, the GC concluded first – without much explanation – that there would be no absolute prohibition under EU law or international law to conclude an agreement with a third State which may be applied to a ‘disputed territory’.10 The GC added that the EU institutions ‘enjoy a wide discretion’ in the conduct of external economic relations, which led the Court to limit its review to ‘a manifest error of assessment’ of the Council when concluding the Liberalisation Agreement.11 The GC then examined whether the Council had ‘examined carefully and impartially all the relevant facts of the individual case’.12 Since the Liberalisation Agreement would possibly ‘facilitate’ the export of products that originate from the occupied Western Saharan territory, the GC concluded that the Council was under an obligation to properly examine whether the agreement would result in a production of goods for export (1) to the detriment of the local population, or (2) that would entail an infringement of fundamental rights laid down in the EU Charter on Fundamental Rights.13 According to the GC, the Council could not simply count on Morocco to ensure that no exploitation of resources to the detriment of the local population would take place. Thus it had not sufficiently taken into account the interests of the local population.14 Therefore, the GC partially annulled the Council decision, insofar as it approved the application of the Liberalisation Agreement to Western Sahara.15 The imposition of such an extraterritorial obligation is to be welcomed in that this verification test would prevent the EU from indirectly encouraging infringements of fundamental rights, or profiting from the exploitation of resources to the detriment of the inhabitants of Western Saharan territory.16
2.3. The Court of Justice of the European Union
Whereas the GC accepted the de facto application of the Agreement to Western Sahara, and then went on to review the Council decision in light of fundamental rights, on appeal, the CJEU held that the Agreement did not apply de jure to Western Saharan territory in the first place. From a procedural perspective, this meant that Front Polisario did not enjoy standing to challenge the relevant Council decision, and thus that its claim was inadmissible. However, from the perspective of EU extraterritorial obligations toward ‘distant others’ – in the case the Saharawi people – the GC and CJEU judgments are not that far apart: both courts considered that the EU Council Decision adopting the Agreement raised concerns with respect to the rights of the Saharawi. Whereas the GC did so by emphasising the EU’s relevant extraterritorial fundamental rights obligations, the CJEU did so by co-applying the right to self-determination and the law of treaties via Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), pursuant to which treaties – such as the Liberalisation Agreement in the case at hand – are to be interpreted in light of all ‘relevant rules of international law applicable in the relations between the parties’.17 This ‘regime interaction’ article provided the gateway to throw the right to self-determination into the analytical crucible. Relying on the Saharawi right to self-determination, the CJEU held that the Western Saharan territory inherently maintains a ‘separate and distinct status’ from the Moroccan territory as a non-self-governing territory.18 Second, per Article 29 VCLT, the Liberalisation Agreement applied in principle solely to both parties’ territory, unless expressly provided for differently.19 Third, per Article 34 VCLT and again with a reference to the Western Saharan right to self-determination, the Court held that the Saharawi, in light of the relative effect of treaties, should be considered as a third party to the EU-Morocco relationship. The application of the law of treaties, in particular the law of treaty interpretation, in combination with the right to self-determination ultimately resulted in the Court’s conclusion that the Agreement did not apply de jure to Western Saharan territory and thus did not cover the products from Western Sahara. In 2018, the CJEU affirmed this reasoning in relation to the Fisheries Partnership Agreement between the EU and Morocco, and a Protocol thereto: it ruled that these agreements are not applicable to the waters adjacent to the territory of Western Sahara, as the territory of Western Sahara does not form part of the territory of the Kingdom of Morocco.20
2.4. Critical reflections on the GC and CJEU judgment
Having discussed the main legal reasoning employed by the GC and the CJEU in their consideration of Front Polisario, this subsection offers a critical reading of the judgments as a prelude to our argument that the case should have been decided on the basis of occupation law (Section 3) and the duty of non-recognition (Section 4). For all their merits, the GC and CJEU judgments have two main fundamental shortcomings. First, both judgments fail to acknowledge that, legally speaking, Morocco’s presence on Western Saharan territory qualifies as a belligerent occupation. Accordingly, they fail to consider the relevance of the regime of occupation law tailored to such a situation. Second, both judgments fail to take into account the EU’s customary law obligation of non-recognition of breaches of peremptory norms.21
The GC, while to be commended for reviewing the EU Council decision in light of fundamental rights, not just fails to mention the ongoing situation of occupation, but even mischaracterises Western Saharan territory as a ‘disputed territory’.22 In reality, Western Saharan territory is not disputed between two or more parties: there are no parties with competing claims over the territory or over the delimitation of boundaries.23 Indeed, as early as 1975, the ICJ established in its Advisory Opinion on Western Sahara that Morocco did not hold any sovereign rights regarding Western Saharan territory.24 Instead of a ‘disputed territory’, Western Saharan territory is an ‘occupied territory’ controlled by Morocco, in the sense of the 1907 Hague Regulations and the Fourth Geneva Convention of 1949 (see further Section 3.1).25 By mischaracterising the territorial situation in Western Sahara, the GC failed to give due regard to the regime of occupation law and was thus unable to identify the applicable rules of international law.
From the flawed legal characterisation of Western Saharan territory as disputed territory, the GC derived that under international law there would be no absolute prohibition of concluding a trade agreement that might be applied to such a territory.26 In so doing, the GC disregarded, or circumvented, the obligation of non-recognition under customary international law of a third State’s acts that breach peremptory norms of international law. For international organisations such as the EU, this obligation is enshrined in Article 42 of the ILC Articles on the Responsibility of International Organizations for Internationally Unlawful Acts (ARIO), which requires that ‘[n]o State or international organization shall recognize as lawful a situation created by a serious breach …, nor render aid or assistance in maintaining that situation.’27 In the case of Front Polisario, this is notably the illegal territorial acquisition of (large parts of) Western Saharan territory by Morocco in violation of the Western Saharan right to self-determination (see further Section 4.1). Arguably, for the EU to conclude an agreement with Morocco regarding Western Saharan territory implies a recognition of the Moroccan sovereign claim to the Western Saharan territory.28
The CJEU’s judgment, for its part, appears to be (even) more problematic than the GC’s in terms of legal reasoning, but especially in light of the actual outcome. While the CJEU did not characterise Western Sahara as a ‘disputed territory’, it considered Western Sahara to be a non-self-governing territory that enjoys a ‘separate and distinct’ status vis-à-vis Moroccan territory.29 Although it may appear self-evident that a non-self-governing territory remains ‘separate and distinct’ from the territory of its administering State,30 one should realise that under the UN system of non-self-governing territories, which was created in the context of decolonisation, the administering State is not Morocco but Spain.31 Thus, just like the GC, the CJEU seems to skirt the thorny issue of occupation, this time by invoking the legal regime relevant to decolonisation, although Morocco never colonised Western Sahara.32
In any event, as the CJEU went on to hold that the Liberalisation Agreement did not apply to Western Saharan territory, any future de facto application of the Agreement was made impossible, thereby foreclosing any opportunity to grant preferential trade access to products originating from Western Saharan territory that are sourced in a manner beneficial to the local population.33 Even if the CJEU had good intentions when it decided that the Agreement did not apply to Western Sahara in light of the Saharawi’s right to self-determination, the irony is that it ultimately fails to do full justice to their rights, as products from Western Sahara are henceforth denied preferential access also if they are shown to clearly benefit the Saharawi people.34 Although one can seriously doubt that such responsible sourcing currently takes place, one cannot exclude that in the future this may happen. It is precisely the regimes of occupation law and of non-recognition, to which we will now turn, that guarantee that exploitation and trade benefiting the local population can still take place.
3. Occupation law
Our main argument in this contribution is that the legal regimes applicable to the Front Polisario case are occupation law and the duty of non-recognition in respect of breaches of peremptory norms. This section unpacks why the law of occupation applies to Western Sahara (Section 3.1), and ascertains the legal implications for the EU’s trade agreement regarding products originating from Western Sahara (Section 3.2).
3.1. Western Sahara as occupied territory
Morocco’s presence on Western Saharan territory constitutes a belligerent occupation. This is not a new position; it has been taken by many scholars.35 To be fair, the UN bodies have been reluctant to characterise the situation in Western Sahara as one of occupation. This may possibly have informed the EU courts’ avoidance of the term ‘occupation’. Indeed, the resolutions of the UN Security Council regarding the referendum mission in Western Sahara do not use the term ‘occupation’.36 The UN General Assembly employed the term twice in resolutions of 1979 and 1980, but has not since referred to Morocco’s presence on Western Saharan territory as an occupation.37 Finally, the ICJ issued an Advisory Opinion regarding Western Sahara in 1975, but since Morocco had not yet taken control of the territory at the time it was not in a position to address the question of occupation, even if it still stated that Western Sahara enjoyed the right to self-determination,38 and that there existed no legal ties of territorial sovereignty between Morocco and Western Saharan territory.39 However, the absence of unambiguous determinations by the UN bodies does not affect the application of occupation law. Occupation law is an international humanitarian law regime that applies as soon as the requirements for a belligerent occupation are satisfied. Its application does not depend on a decision taken by an international authority.
The regime of the law of occupation is largely codified in the Hague Regulations of 1899 and 1907 and the 4th Geneva Convention of 1949, which the ICJ has recognised as containing ‘intransgressible principles of international customary law’.40 Per Article 42 of the 1907 Hague Regulations, a territory is considered occupied when it is ‘actually placed under the authority of the hostile army’.41 The Article requires three cumulative constitutive elements: (1) the presence of foreign forces; (2) the exercise of authority over the occupied territories;42 and (3) the non-consensual nature of belligerent occupation.43 The first two elements are relatively easily met in the case of Western Sahara. As the ICJ clarified in Armed Activities on the Territory of the Congo, it has to be demonstrated that the occupying power not only has a (military) presence on the occupied territory, but also holds the actual authority in this area.44 While this ‘test’ has been criticised as being somewhat too strict,45 it does not seem disputed – notably not even by the EU Commission and the EU Council in Front Polisario – that Morocco exercises ‘actual authority’ over large parts of Western Saharan territory. In fact, while the CJEU avoids the language of occupation law, it does acknowledge Morocco’s control over Western Sahara: ‘[t]o the present day … the Kingdom of Morocco controls the majority of the territory of Western Sahara, which a wall of sand constructed and guarded by the Moroccan army separates from the rest of the territory controlled by the Front Polisario.’46 It is also of note that armed force need not actually have been used, since occupation law applies to all partial or total occupations ‘even if the said occupation meets with no armed resistance’.47
The third requirement for the application of occupation law – the lack of consent – might deserve some further scrutiny. Western Sahara was not a recognised sovereign State, but a non-self-governing territory administered by Spain at the time Morocco took effective control of Western Saharan territory. Since Western Sahara was not recognised as a sovereign international legal person, what is relevant for the current analysis is thus whether, at the time, Spain consented to Morocco taking control and administering Western Sahara territory. It is highly doubtful whether Spain validly consented to Morocco’s and Mauritania’s entry of the Western Saharan Territory after Spain left. Arguably, the signing of the Madrid Agreement, which settled Spain’s exit from Western Sahara, was driven by Morocco’s threat to use force.48 Moreover, even if one disagrees with the position that the Madrid Agreement was invalidated on grounds of ‘coerced consent’,49 the Agreement would still be fundamentally flawed as it was concluded in violation of the Western Saharan right to self-determination. Indeed, the Madrid Agreement neither provided for the necessary referendum among the Western Saharan local population on the question of the future status of Western Saharan territory, nor did it (in the words of the UN Legal Counsel) ‘confer upon any of the signatories the status of administering Power, a status which Spain alone could not have unilaterally transferred’.50 Thus, the ‘consent’ given by Spain – whether coerced or not – can in any case not be understood as valid consent to Morocco taking control of (large parts of) Western Saharan territory.51 In the absence of valid consent, as has also twice been concluded by the UN General Assembly,52 Morocco’s presence and exercise of authority in Western Sahara can only be understood as an occupation in the sense of the Hague Regulations of 1899 and 1907, the Additional Protocol I of 1977 to the Geneva Conventions of 1949, and customary international law.53
3.2. The implications for the EU
From an occupation law perspective, at issue in Front Polisario was, in essence, whether occupation law allows for the occupying power’s – in this case Morocco’s – exploitation of natural resources, and, if it does not, whether the EU facilitates such illicit exploitation by concluding a Liberalisation Agreement with Morocco, which provides for preferential access of products derived from these resources. The EU itself may not be a party to the 4th Geneva Convention on occupation law, but as mentioned above, the ICJ has accepted the customary status of occupation law. In keeping with the requirement that the EU respect international law in its external relations,54 which includes international humanitarian law,55 the customary international law occupation regime is binding on the EU.
It is also recalled that the CJEU has proved willing to review EU acts in light of norms of public international law. In this context, the CJEU generally refers to Article 3(5) TEU, pursuant to which the Union is to contribute to the strict observance and the development of international law. The Court has derived from that provision the obligation for the EU to observe international law in its entirety when it adopts an act, including customary international law, which is binding upon the EU institutions.56 This means that the validity of an EU act may be affected by the fact that it is incompatible with rules of international law, at least when a number of conditions are fulfilled.57 However, even when these conditions were not fulfilled, it remains no less true that, on the international plane, the relevant EU act may engage the EU’s international responsibility for breach of international law. Therefore, even if internal review powers (jurisdiction) of EU courts were to be absent in relation to international occupation law, an examination of the international law implications of the EU’s economic relations with occupied territories is called for.
Before addressing the EU’s international responsibility in relation to imports of products derived from natural resources that have been exploited in violation of occupation law,58 the general rationale behind occupation law should first be understood, as well as the occupying power’s potential entitlement to exploit natural resources located in occupied territory. Occupation law seeks to fill a temporary legal vacuum that has arisen as a result of the factual situation of occupation. Under occupation law, the legal power of the occupant is considered as a mere ‘de facto capability, not [as] a legal authority’.59 Occupation law reflects the reality that the occupant has merely gained temporary control and has not been granted any sovereign rights over the occupied territory. Occupation does not change the legal status of the territory or its inhabitants. The latter remain subject to international occupation law and not (or only to the extent allowed by occupation law) to the domestic law of the occupant.60 In the case of Western Sahara, Morocco may have effective control over large parts of Western Sahara territory, but it does not have any sovereign right or legal title regarding this territory: these remain with the local population of Western Sahara.61
Against this background, occupation law contains several provisions regarding the use or exploitation of property during occupation. One of the fundamental principles of occupation law is that the occupying power – in this case Morocco – may not ‘exercise its authority in order to further its own interests, or to meet the needs of its own population’.62 Thus, in principle, occupation law only allows for the exploitation of resources located on occupied territory in so far as these activities benefit the (occupied) local population.63 This can also be derived from the ICJ’s judgment in Armed Activities on the Territory of the DR Congo.64 More specifically, occupation law requires the occupying power to administer occupied public property consisting of ‘public buildings, real estate, forests, and agricultural estates’ in accordance with the principle of usufruct.65 This means that the occupying power ‘may use, but does not own the property’.66 This arguably implies a prohibition of ‘wasteful or negligent destruction of the capital value, whether by excessive cutting or mining or other abusive exploitation’.67 In this regard, several authors have suggested that a distinction be made between renewable and non-renewable natural resources.68 Applied to Western Sahara, this would mean that the exploitation of renewable natural resources of Western Saharan territory under Moroccan occupation, such as fish traded under the EU-Moroccan Fisheries Partnership Agreement, should not lead to permanent depletion, but instead has to be ‘sustainable and not abusive, consistent with the inter-generational dimension of the trusteeship principle’.69 Non-renewable resources, such as minerals, phosphate, timber and natural gas, could only be exploited according to the levels of production that existed and were envisaged prior to the occupation of the occupied territory.70 This may imply that Morocco’s production levels cannot exceed those of 1975 (when Western Sahara was still under Spanish authority). Moreover, Morocco is barred from exploiting new non-renewable resources, for example by issuing licences for the exploitation of new mines. While this strict position is not universally shared,71 it is common ground that Morocco, having only a usufructuary position as per Article 55 of the Hague Regulations, may not use or exploit property to the detriment of its substance.72
Assuming that some EU imports of products from Western Sahara might concern products derived from natural resources that have been exploited in violation of occupation law,73 the next question is what this means for the EU’s trade relations. Does the EU violate an international legal obligation under occupation law when allowing the importation of these products? The complicating factor is obviously that the EU does not itself violate occupation law, but may only facilitate Morocco’s violations.74 It is argued here that the EU’s responsibility for such facilitation could be engaged on the basis of its failure to ‘ensure respect’ for occupation law, or alternatively for ‘aiding and assisting’ Morocco’s breaches of occupation law. However, as is discussed more in detail below, the conditions of application of these legal grounds are restrictive. This complicates holding the EU responsible for allowing trade in products from occupied territories to the detriment of the local population.
As to the first legal ground, it is of note that, while the obligations stemming from occupation law in principle constitute legal obligations only owed by an occupant to the occupied,75 all State parties to the Fourth Geneva Convention are legally obliged to ensure respect for the Convention.76 On the basis of this duty to ensure respect, it could be argued that EU Member States, as well as the EU itself (on which the Member States have conferred the exclusive competence regarding external trade), are under a (primary) legal duty to ensure Morocco’s compliance with the law of occupation through the tools available to them, including through the conditioning of trade relations. Crawford, however, has taken the view that the duty to ensure respect does not reach that far and that third States, as non-directly affected States, instead of incurring a legal obligation to condition trade, are only entitled to invoke the wrongdoer’s responsibility for a violation of the Geneva Conventions.77 This is in keeping with the common understanding of the consequences of erga omnes obligations in the law of responsibility, which appear to be limited to invocation indeed.78 Moreover, from the vague wording of States’ duty to ensure respect for international humanitarian law, it cannot unambiguously be derived that States are under a duty not to import products ‘contaminated’ by violations of occupation law.
Alternatively, one could ground the EU’s duty to exclude products stemming from the illegal exploitation of natural resources located on occupied territory on the EU’s duty of non-assistance (or prohibition of complicity). This duty is laid down in the Articles on the Responsibility of International Organizations (ARIO 2011).79 The relevant Article 14 ARIO provides that ‘[a]n international organization which aids or assists a State … in the commission of an internationally wrongful act by the State ... is internationally responsible for doing so if: (a) the … organization does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that organization.’80 This duty of non-assistance aims to prevent the commission of acts that assist in preserving a situation created by a breach of international law.81 Applied to the situation at hand, this could be any act that would facilitate Morocco’s potential exploitation of natural resources in Western Sahara in violation of the law of occupation.
The conditions for the application of the duty of non-assistance are relatively strict, however. The International Law Commission’s Commentary to Article 14 ARIO states as a requirement that ‘the relevant … organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct’.82 While the EU may possibly have been aware of the circumstances of the potential illegal exploitation of natural resources in Western Sahara, the requirement of intention to facilitate thus demands for evidence which seems rather impossible to obtain, for example evidence that the EU had the intention to facilitate this exploitation by concluding a Liberalisation Agreement that covered products from Moroccan-occupied Western Sahara. The Council of the EU possibly only wished to deepen trade relations with Morocco and simply did not pay much attention to the dire situation of the Saharawi. This line of reasoning can also be found in the GC’s judgment, where the Court held that the Council should have better verified the impact of the Agreement on the fundamental rights of the Saharawi. There is no clear evidence, however, that the Council would have intended to facilitate these rights violations, or the illicit exploitation of natural resources. Consequently, the responsibility of the EU will not normally be engaged on grounds of aiding and assisting.
Such responsibility could only be engaged if the requirements for aiding and assisting were, de lege ferenda, lowered to those of dolus eventualis, pursuant to which an actor’s responsibility is engaged where he foresees the possibility of an unlawful circumstance or consequence occurring, and nonetheless proceeds with his conduct.83 Given the systemic effects of trade relations on, and the encouragement of possibly illicit practices of natural resources exploitation outside the territory of the importing State, a standard of responsibility that is broader than the one propounded in the ARIO may be advisable, all the more so bearing in mind the EU’s constitutional aim of contributing ‘to the strict observance and development of international law’ in its relations with the wider world.84 A broader standard may allow for the EU’s international responsibility to be engaged in the context of trade relations with occupied territories, in case the EU recklessly or negligently disregards the impact of such relations on the enjoyment of human rights, or on the exploitation of natural resources to the detriment of the interests of the local population of the occupied territory.85
That being said, under any applicable or proposed responsibility standard, the EU’s responsibility will not be engaged insofar as the traded products are derived from exploitation of natural resources that benefits the population of the occupied territory. In that case, there is, in accordance with the law of occupation, no breach of international law to begin with. In light of the information available regarding Morocco’s practices in Western Sahara, wrongful acts may be very likely to take place, but as already signalled, it is not excluded that Morocco’s exploitation of certain resources, whether at present or in the future, may benefit the Saharawi. Accordingly, by deciding that the Liberalisation Agreement does not apply at all to Western Sahara, the CJEU in Front Polisario may have denied legitimate economic opportunities to the Saharawi.86
4. The duty of non-recognition
Apart from occupation law, there is another international law regime that is particularly relevant to the situation of occupied territories, and which has also been bypassed by the EU courts: the regime governing the consequences of serious breaches of peremptory norms, in particular third parties’ duty of non-recognition of such breaches. Occupations are often accompanied by such violations, as they are typically triggered by the unlawful use of force, and are characterised by continuous violations of the occupied people’s right to self-determination.
Per Article 42 ARIO, States and international organisations (1) shall cooperate to bring to an end through lawful means any such serious breach; and (2) bear a duty not to recognise as lawful a situation created by a serious breach, nor render aid or assistance in maintaining that situation. With regard to the first element, maintaining trade relations with the occupant – more specifically trading products originating in the occupied territory without further requirements regarding the production of these goods – can arguably not be characterised as a genuine effort to ‘bring to an end through lawful means’ the serious breach in question, that is, the situation of belligerent occupation of the Western Sahara territory. However, from the limited application in practice of this ‘duty to cooperate to bring to an end’, it appears that, on the one hand, such a duty is only ancillary to the duty of non-recognition, and on the other, that international cooperative efforts should take place primarily at the level of the United Nations. Most notably, the ICJ held in its Advisory Opinion on the Legality of the Wall that all States had an obligation ‘not to recognize the illegal situation resulting from the construction of the wall’, only to add later – additionally – that the ‘United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime’.87 As the EU ‘fully supports the efforts made by the United Nations Secretary-General and his personal envoy to help the parties reach a fair, lasting and mutually acceptable political solution that would ensure the self-determination of the people of Western Sahara under agreements aligned with the principles and objectives of the Charter of the United Nations, as set out in the Resolutions of the UN Security Council, in particular Resolutions 2152 (2014) and 2218 (2015)’,88 the focus of the current analysis will be on the more immediate duty not to recognise situations stemming from a serious breach of peremptory norms, and the related obligation not to aid or assist in maintaining such situations. When using the notion of ‘duty of non-recognition’ in this section, we also imply the obligation not to aid or assist, as, in the context of trade with occupied territories, similar arguments could be developed in relation to both obligations.89
This section first addresses the relevance of the non-recognition regime for Western Sahara (Section 4.1), and then goes on to examine its implications for the EU’s trade in products originating from Western Sahara and occupied territories more generally (Section 4.2). It is argued that the conclusion of an EU trade agreement with respect to products originating from occupied territories may amount to an implicit recognition of an unlawful situation. However, at the same time, it is submitted that a widely accepted exception to the duty of non-recognition may keep the door ajar for trade access, including preferential trade access of certain products, specifically in case such trade benefits the local population in the occupied territory.
4.1. Relevance of the duty of non-recognition
The duty of non-recognition reflects the more general principle of international law that ex injuria ius non oritur. In essence, this duty prohibits States from recognising – whether explicitly or implicitly – any legal claim or entitlement that stems from an unlawful act.90 The duty of non-recognition harks back to the 1932 Stimson doctrine, a policy of the United States not to recognise international territorial changes brought about by the use of force.91 Currently, the duty of non-recognition extends to all violations of peremptory norms of international law. As stated above, the duty of non-recognition for international organisations such as the EU is enshrined in Article 42 ARIO, which requires that ‘[n]o State or international organization shall recognize as lawful a situation created by a serious breach …, nor render aid or assistance in maintaining that situation.’92 Article 41 ARIO defines a ‘serious breach’ as a ‘gross or systematic failure’ to fulfil ‘an obligation arising under a peremptory norm of general international law’.93 A peremptory norm has in turn been defined as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted’.94 It will be argued that an EU trade agreement with respect to products originating from occupied territories may amount to the (implicit) recognition of breaches of peremptory norms.
Arguably, with respect to the situation in Western Sahara, Morocco has violated, in a gross or systematic manner, at least two peremptory norms: (1) the prohibition of aggression, and subsequently, (2) the Saharawi right to self-determination.95 First, Morocco’s invasion of Western Saharan territory arguably constituted an act of aggression in the absence of a UN Security Council authorisation and without the circumstances for self-defence being present.96 Second, Morocco’s subsequent illegal annexation of Western Saharan territory also amounts to a violation of the Western Saharan right to self-determination, since it prevents the local population from determining the future of their territory.97 Third, the ongoing exploitation of natural resources in the occupied Western Saharan territory may be in breach of the local population’s right to permanent sovereignty over natural resources, which forms an essential part of the right to self-determination.98 The peremptory character of both the prohibition of aggression and, the right to self-determination has been unambiguously confirmed, and more specifically, the ‘attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples’ – that is, the scenario of Western Sahara – has been qualified as a serious breach of a peremptory norm giving rise to the application of the duty of non-recognition.99 Upon seizing the Western Saharan territory and by considering it as ‘an integral part of its own territory’,100 Morocco has in addition issued a clear legal claim to Western Sahara – a requirement for the application of third parties’ duty of non-recognition – in contradiction with the ICJ’s earlier ruling that there are no sovereign ties between Morocco and the Western Saharan territory.101
Finally, it can be noted that the duty of non-recognition is of a ‘self-executory’ nature.102 This means that once a peremptory norm of international law has been seriously breached, all other States and international organisations are under a legal duty of non-recognition regarding the effects of this violation, regardless of whether or not the UN organs have considered the matter. Accordingly, it is immaterial that these organs may not clearly have established the breach of a peremptory norm by Morocco, or may not have called on, or compelled States to refrain from recognising the situation in Western Sahara.
4.2. Legal consequences for the EU
In the previous subsection, it has been submitted that the application of the duty of non-recognition is triggered by Morocco’s claim of authority over Western Saharan territory. This means that all States and international organisations have a duty under international law not to recognise Morocco’s territorial claims over Western Saharan territory. However, it still needs to be established that by concluding a trade agreement with Morocco, the EU has recognised a serious breach of a peremptory norm. This is a question of the scope and content of the duty of non-recognition: what acts by third parties qualify as acts of recognition?
It can be gathered from case law and commentary on the duty of non-recognition that this duty is not to be understood too narrowly, as prohibiting mere explicit recognition. The Commentary to the Articles on State Responsibility notes that the duty of non-recognition not only prohibits ‘formal recognition’ of an unlawful situation, but also ‘acts which would imply such recognition’.103 Entering into economic relations concerning an occupied territory may well amount to implicit recognition. In effect, in its Namibia Advisory Opinion, the ICJ opined that the duty of non-recognition entailed that States are ‘under obligation to abstain from entering into treaty relations with [the occupying power] in all cases in which [it] purports to act on behalf of or concerning [the occupied territory]’.104 According to the ICJ in that opinion, the duty of non-recognition imposes ‘upon Member States the obligation to abstain from entering into economic and other forms of relationship or dealings with [the occupying power] on behalf of or concerning [the occupied territory] which may entrench its authority over the Territory’.105
In view of these statements, the de facto application of the EU-Morocco Liberalisation Agreement to Western Sahara – as affirmed by both the Council and the Commission and upheld by the GC106 – seems problematic, in that it appears to constitute an implied recognition of the legality of Morocco’s presence on Western Saharan territory.107 What is more, not just the granting of preferential access to products originating from Western Sahara is problematic, but so may be the mere conduct of trade relations and the importation into the EU of any products from Western Sahara, irrespective of whether preferential tariffs apply. Moerenhout, for instance, has argued in relation to EU trade in products originating from the Israeli settlements, built on occupied Palestinian territories in violation of the Geneva Conventions, that ‘the act of importation remains a legal act, which requires the stamp of approval from the importing state, which holds a sovereign power over its trade policy’.108 According to Moerenhout, ‘[h]aving the knowledge that settlements, among others through trade, make a claim on the territory of Palestine, makes such an act of importation implicit recognition’.109 This line of reasoning is admittedly far from generally accepted. Kontorovich, for instance, has claimed that having trade relations does not amount to recognition at all.110 Crawford advocates a more moderate position concerning the exact content of the prohibition resulting from the duty of non-recognition, arguing that some acts should be permitted, especially those ‘which do not purport to secure or enhance territorial claims, such as those of a commercial, minor administrative or ‘routine’ character, or those which are of immediate benefit to the population’.111 Despite the ongoing academic debate, at least some differentiation between products from the occupied territories and products from the occupant’s metropolitan territory, e.g. via the attachment of labels indicating the origin of the product, may be called for to prevent a violation of the duty of non-recognition.112
What is important for our argument, however, is also that, even if in principle such trade relations would violate the EU’s duty of non-recognition, this duty is not considered as absolute, meaning that there are legitimate exceptions to it. In its Namibia Advisory Opinion, the ICJ, while affirming the general prohibition of entering into relations with a State in respect of an occupied territory, added an ‘element of flexibility’:113 it stated that non-recognition ‘should not result in depriving the [local population] of any advantages derived from international co-operation’.114 Benvenisti has argued that the rationale would, more specifically, apply to ‘bilateral and regional treaties such as free trade areas which ensure the livelihoods of the occupied inhabitants’.115 It is also observed that this so-called Namibia exception is very similar to the occupying power’s aforementioned right of usufruct to exploit the natural resources of an occupied territory to the benefit of the local population.
Applied to the case of Western Sahara, the Namibia exception means that the EU-Morocco Liberalisation Agreement is valid, or applies to the territory of Western Sahara, insofar as the importation of products derived from Morocco’s natural resources exploitation in Western Sahara benefits the local population. These results of the application of the non-recognition regime for trade with occupied territories differ, at least in theory, from the results of the CJEU’s judgment in Front Polisario. It is recalled that, applying the law of treaties informed by the right to self-determination, the CJEU denied products originating in Western Sahara preferential trade access altogether. That being said, the non-recognition regime yields outcomes that resemble those of the judgment of the GC, which allowed preferential trade insofar as the EU Council has ensured ‘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.’116 From a consequentialist perspective, the GC judgment is thus preferable, even if the GC failed to acknowledge the reality of the occupation of Western Sahara.
As a way forward, in the aftermath of the CJEU’s judgment in Front Polisario, which excluded preferential trade in products originating in Western Sahara, the EU could possibly state explicitly that it only seeks to trade, on a non-preferential basis, in goods that originate from the occupied Western Saharan territory in so far as these goods benefit the local population.117 One should nevertheless realise that the imposition of a full trade ban on goods that do not benefit the local population is difficult to implement, as for each product the EU would have to review the exploitation context on the basis of limited available information.118 A more workable alternative, as applied by the EU to products from Israeli settlements in the Occupied Palestinian Territories,119 may be for the EU to require the attachment of a consumer label on imported (finished) products. Such a label would indicate the geographic origin of the products, or even the geographic origin of the materials they contain120 – occupied Western Sahara or the metropolitan territory of Morocco – while leaving the ‘political’ decision to transact to the consumer rather than the EU itself.
EU trade agreements in respect of products originating from occupied territories raise distinct questions for the EU’s extraterritorial obligations vis-à-vis the local population of those territories. Such obligations may derive from international human rights law, but in this contribution, it has been argued that the specific international law regimes of occupation law and the prohibition of recognising situations resulting from breaches of peremptory norms apply in the first place. In a sense, these regimes serve as lex specialis for the EU’s importation of products from occupied territories. This is not to deny, however, that at least some human rights continue to apply in armed conflicts, alongside international humanitarian law, which includes occupation law.121
Unfortunately, in the first ever challenge before EU courts of the legal validity of a trade agreement concluded between the EU and a third State (Morocco) acting as an occupying power in a territory (Western Sahara), the GC and subsequently the CJEU failed to properly characterise the relevant territorial situation as one of occupation. Instead, the EU courts applied alternative legal regimes to the EU-Morocco Liberalisation Agreement and its effects on the population of Western Sahara, such as the EU Charter on Fundamental Rights and the Vienna Convention on the Law of Treaties, in combination with peoples’ right to self-determination.
From a narrow doctrinal perspective, these regimes may appear appropriate and may have been relatively convincingly applied by the EU courts. Indeed, at first sight, the GC can be applauded for giving the Charter extraterritorial application, and for, on that basis, imposing a human rights verification test on the Council of the EU when it intends to conclude a trade agreement with a third State.122 The CJEU, for its part, can be credited for giving effect to the right to self-determination of the Saharawi through the law of treaties, and on that basis restricting the geographic scope of the Liberalisation Agreement to the metropolitan territory of the occupant (Morocco) to the exclusion of Western Saharan territory. In so deciding, the EU courts, while formally only addressing the validity of an EU Council decision on a technical bilateral trade agreement, served as ‘extraterritorial’ bystander courts vindicating the rights and interests of the oppressed Saharawi. Given the unavailability of other international dispute-settlement mechanisms with jurisdiction over the plight of the Saharawi, this assumption of responsibility for the fate of distant others is laudable. It is no surprise then that the Front Polisario – the Saharawi national liberation movement – hailed the GC and CJEU’s judgments as a victory.
Still, this victory leaves a somewhat sour taste, as the justice provided to the Saharawi is only partial. The EU courts ducked the fundamental legal and ethical question in the case, namely the consequences to be derived from the status of Western Sahara as an occupied territory that has come into being and is sustained by violations of peremptory norms of international law by the occupant. Possibly, the EU courts considered themselves to be on safer political ground by invoking the EU’s internal fundamental rights law (GC), or ‘neutral’ treaty law (CJEU). There may have been concern that dropping the political bombshell of occupation may trigger unforeseen and undesirable consequences.123 After all, when UN Secretary-General Ban Ki-moon characterised Western Sahara as an occupied territory upon visiting a camp for Western Sahara refugees in March 2016, Morocco immediately ordered the UN to cut staff in Western Sahara.124
The EU courts’ tendency to the technical rather than the ethical, reflected by their avoiding of questions pertaining to substantive values, by relying on formal legal categories such as treaty interpretation,125 is of course not new. Andrew Williams has earlier drawn attention to this in a wide-ranging contribution on the values of EU law, emphasising the timid role of the EU courts in this regard.126 With respect to trade in products originating from occupied territories more specifically, the EU courts’ predilection for the technical could already be gleaned from a 2010 CJEU preliminary ruling concerning the refusal of a German customs office to grant a German company preferential treatment to the importation of products manufactured in the Israeli-occupied West Bank.127 In that case, the CJEU, relying on the pacta tertiis rule codified in VCLT Article 34, held that such products fell within the scope of the association agreement which the EU had concluded with the Palestinian Authority rather than the association agreement it had concluded with Israel – also without citing the elephant in the room of the prolonged Israeli occupation of the West Bank.128 In Front Polisario, the CJEU (unlike the GC) considered that the same rule applied even in the absence of a rival association agreement.129
Sensitive political questions have legal overtones, however. In situations of occupation that are preceded and accompanied by violations of peremptory norms of international law, for example unlawful use of force and denial of self-determination, it behoves the EU courts to apply the appropriate legal regimes of occupation law and the duty of non-recognition, as these are tailored to the peculiar challenges confronting an occupied population. If the EU courts had applied these regimes, they may have found the EU internationally responsible for facilitating violations of occupation law committed by its trading partner Morocco, or for implicitly recognising an illicit territorial situation in violation of the duty of non-recognition. They may also have found that these regimes nevertheless allow for natural resources exploitation that benefits the local population, and, thus, that trade in products from occupied territories need not necessarily be in violation of international law.130 Both in terms of moral symbolism and practical consequences, such counterfactual judgments would have differed fundamentally from the actual judgments rendered by the EU courts in Front Polisario, especially the CJEU´s judgment.
Ultimately, however, it may be a simplification to conceive of Front Polisario just as a failure of the CJEU to engage properly with international law. At a more fundamental level, Front Polisario also represents a conflict internal to international law, namely between on the one hand general international law, in particular the duty of non-recognition and the law of occupation, and specific international law, in the case bilateral trade treaties concluded between the EU and third States. It is our argument that the validity of such specific law should be reviewed in light of basic principles of general law. After all, general international law does not (just) provide fallback rules in case specific international law fails to elaborate on certain issues, but also provides baseline rules which specific law cannot bypass.
Obviously, the CJEU has rendered its judgment, thereby closing the case regarding the scope of application of the EU-Morocco Liberalisation Agreement. However, our critique does not amount to shutting the stable door after the horse has bolted. After all, Front Polisario only pertains to trade preferences and does not affect non-preferential trade in products from Western Sahara. Such trade can continue unabated after the CJEU’s judgment. Occupation law, and the duty of non-recognition and its exceptions remain relevant to this trade, which also exists between the EU and other occupied territories, such as the Israeli-occupied West Bank and Turkish-occupied Northern Cyprus. It is advisable for the EU to reconsider all these relations, and to develop a coherent framework that legally differentiates trade that benefits the local population from trade that does not.