Markus W. Gehring: University Lecturer, University of Cambridge; J.S.D. (Yale), LL.M. (Yale), Dr jur. (Hamburg), MA (Cantab); Deputy Director, Economic Law at CIGI

On December 21, 2016, the Court of Justice issued its appeals decision in the case of Council v. Front Polisario. This Grand Chamber judgment, reached under an expedited procedure, overturned the prior decision made by the EU General Court in Front Polisario v Council roughly a year before.

Background

The Front Polisario seeks to end Moroccan control of the Western Sahara territory and has garnered international recognition from over 40 countries, with Algeria considered its primary supporter. The Polisario experienced a challenging year following the death of its leader and Morocco’s bid to rejoin the African Union after a thirty-year absence. While the Polisario did not prevail in this particular case, the judgment is unlikely to be viewed favorably by Morocco either.

General Court judgment

The General Court’s decision had been perceived as a significant victory for the Polisario, as it granted them standing to challenge a Council decision regarding the liberalization of certain agricultural products traded between the EU and Morocco (Liberalisation Agreement). This was notable as the General Court recognized the Polisario’s legal personality and their ability to demonstrate direct and individual concern, a requirement to challenge decisions in EU courts unless the challenger is an EU institution or Member State. This was despite objections from both the Council and Commission.

The Polisario’s concern stemmed from the agreement’s application to Western Sahara, despite differing interpretations of its territorial scope between Morocco and the EU. Their argument centered on the inclusion of 140 Western Sahara-based businesses in the EU Commission’s online list of approved Moroccan exporters. Both the Council and Commission had indicated during the hearing that the contested decision was being applied to Western Sahara in practice. The General Court referenced the Brita judgment extensively, in which the CJEU had rejected products produced in the West Bank from being included under the EU/Israel trade agreement. However, they did not rely on this judgment because neither the EU nor its Member States had formally recognized the Polisario as representing Western Sahara as a sovereign state. Instead, the General Court confirmed the Polisario’s standing to sue because the EU institutions, by not explicitly excluding Western Sahara from the EU-Morocco Association Agreement, had implicitly accepted its application to the Moroccan-controlled portion of the territory.

The General Court ultimately rejected all but one of the Polisario’s substantive claims. They agreed that the Council had exceeded its broad discretion in international relations by failing to guarantee that natural resource exploitation in Moroccan-controlled Western Sahara benefited the local population and respected their fundamental rights. The court stated that the Council must thoroughly and impartially consider all relevant information to ensure that the production of goods for export does not harm the affected population or infringe on fundamental rights, including rights to human dignity, life, physical integrity, freedom from slavery and forced labor, freedom of occupation and work, freedom to conduct business, property rights, fair and just working conditions, and the prohibition of child labor.

By deferring the matter entirely to Moroccan authorities, the Council failed to meet its obligation to examine all aspects of the case. As a result, the General Court annulled the Council’s decision. Numerous international commentators praised the decision for its contribution to the international protection of human rights, with some emphasizing its message that even indirect contributions to human rights violations through trade could violate international law.

ECJ judgment

The ECJ Grand Chamber viewed the situation differently in their appeal judgment. While using fewer words, they largely aligned with the Opinion of Advocate General Wathelet, who recommended that the Court overturn the General Court’s decision and dismiss the Polisario’s action due to inadmissibility. He also believed the General Court erred in applying the EU Charter of Fundamental Rights to the people of Western Sahara, though he acknowledged that international human rights law could generally apply to the EU’s decision.

The Council, backed by the Commission, claimed six legal errors. The Grand Chamber only examined one in depth: the Polisario’s standing and the applicability of the Liberalisation Agreement to Western Sahara. The Court of Justice viewed the General Court’s finding that the Liberalisation Agreement applied to the territory not as a factual finding but as a legal interpretation. They concluded that the General Court overstepped in ruling that the lack of an explicit application clause in the Association Agreement indicated the EU’s acceptance of Morocco’s view of Western Sahara as an integral part of its territory.

The Court of Justice then analyzed the principle of self-determination, Article 29 of the Vienna Convention on the Law of Treaties regarding the territorial scope of treaties, and the relative effect of treaties. Given the self-determination right’s erga omnes nature for people in Non-Self-Governing Territories and its standing as a core principle of international law, the Court of Justice concluded that the General Court erred in assuming the Association Agreement extended to Western Sahara.

Regarding Article 29 of the Vienna Convention, the Court clarified that “its entire territory” only pertains to internationally recognized territories, not the broader concept of territory under a nation’s jurisdiction. Thus, they sided with the Commission’s argument that any extension of the agreement’s application must be explicitly stated. The Court of Justice also invoked the pacta tertiis principle, which states that treaties cannot impose obligations or confer rights on third parties without their consent. They determined that the people of Western Sahara, according to the ICJ Advisory Opinion on Western Sahara, constituted a third party and had not consented.

The Court viewed the Liberalisation Agreement, as a subsequent agreement, as incapable of broadening the previous Association Agreement’s scope. The rule of subsequent practice in Article 31 of the Vienna Convention could not alter this interpretation. While the Commission and Council were aware of the Moroccan authorities’ long-standing practice of applying the Association Agreement to Western Sahara and never opposed it, and despite certain tariff preferences applying to products originating in Western Sahara, this did not constitute clear subsequent practice. Therefore, the agreements did not apply to Western Sahara, leaving the Polisario without standing in European courts.

Comment

The judgment contributes to the practice of international law, much like many domestic courts, by clarifying the Vienna Convention on the Law of Treaties’ interpretation rules. It clarified that interpreting the territorial scope of EU international agreements must consider general public international law. The “agree to disagree” stance between the EU and Morocco on the Association and Liberalisation Agreements’ application couldn’t change the fact that, in the EU’s view, the agreements only applied to internationally recognized Moroccan territory.

The Court’s judgment reflects an increasingly sophisticated approach that carefully evaluates international legal arguments instead of merely accepting the Commission or Council’s stance. This highlights EU External Relations law’s ability to draw on a more extensive body of international case law.

While the ruling favored Morocco by acknowledging the potential for “application without recognition” concerning the Association Agreement’s limited scope, the Court clearly stated that applying the agreement to Western Sahara required an explicit treaty provision. This could complicate future relations between these key partners, making the judgment a somewhat hollow victory for Morocco.

It remains to be seen whether the Polisario will file a new case challenging the agreements’ de facto application to the Moroccan-administered territory. Notably, another case concerning these issues is already before the ECJ following a referral by a UK court. Unfortunately, beyond self-determination, the Court of Justice did not delve further into human rights application to trade agreements, leaving this significant area ripe for exploration.

Barnard & Peers: chapter 24

Photo credit: diasporasaharaui-en.blogspot.com