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Join on Telegram Reading the European Court of Justice’s latest ruling annulling the EU-Morocco fisheries and liberalization agreements, one is immediately struck by the fact that the verdict is a political decision coated in a far-fetched legal reasoning that is not in accordance with international law.
The court, to put it simply, lacks jurisdiction over disputes between the EU and a non-EU state. Intervention in such matters is the preserve of the International Court of Justice (ICJ). Even so, the ICJ cannot take on cases involving two states or one state and an international organization unless it receives an explicit petition from the disputing parties.
Taking international jurisprudence seriously
In cases involving the right to self-determination, the consent of a third state is a core principle that has been codified in international jurisprudence. This explains why in the hours that followed the ECJ ruling, the Moroccan Ministry of Foreign Affairs released a statement stressing that because it did not take part in the court proceedings, it was ultimately “not concerned” by the ruling.
After Australia and Indonesia signed in 1989 an agreement addressing the operation of East Timor’s maritime area, the International Court of Justice (ICJ) endorsed this principle in its judgment of June 30, 1995, in the dispute between Portugal and Australia. Portugal tried to have the agreement annulled, claiming that Australia had signed it without regard for Portugal’s administrative power or the Timorese people’s right to self-determination.
Although the principle of self-determination is established in the UN Charter and the ICJ’s own law, the court rejected Portugal’s petition, underlining that the primacy of the self-determination principle and the consent to the court’s jurisdiction are two separate things. As a result, the ICJ ruled itself incompetent to adjudicate on Indonesia’s conduct without the country’s explicit request for such a legal intervention.
The international body also rejected Portugal’s argument against Indonesian sovereignty over the territory in question. Specifically, the court noted that although East Timor was a non-self-governing territory and its people had the right to self-determination, the ICJ resolutions did not provide “a sufficient basis for deciding the dispute between the parties.”
The European Court’s Violation of international law
In light of this precedent, it is clear that the European Court is not only guilty of power abuse for encroaching on areas that do not fall within its competence, but above all, its behavior in the EU-Morocco case is at odds with the rules and customs of international law.
As far as ICJ jurisprudence goes, the overarching lesson from the Portugal vs Australia case is that, because Morocco does not recognize the EU court’s jurisdiction on the legitimacy of its actions, it cannot cancel the EU-Morocco agreements without breaking international law.
That the court’s ruling emphasizes the Sahrawis’ right to self-determination as the primary rationale for its decision to invalidate the Brussels-Rabat agreements should be enough to indicate this was essentially a political ruling primarily motivated by a thinly veiled – and self-righteous – desire to be on the side of the underdog. With the separatist Polisario Front having dexterously – though misleadingly and ahistorically – portrayed itself over the years as the “only legitimate representative of the oppressed Sahrawi people,” the court’s tone and reasoning betrays a moralistic need to be on the proverbial good side of history, even if that means slaying international law and disregarding historical facts.
Polisario is not a subject of international law
If respecting or upholding international law was really the EU court’s primary motivation, as it claimed in its ruling, it should have normally denied the Polisario’s petition for two straightforward reasons. First because Morocco does not recognize its competence, and second because Polisario has no legal personality that would allow it to appeal to EU courts given that it is not a subject of international law.
As such, the argument that Polisario is a representative of the “people of Western Sahara” and that it consequently has the “capacity to act before the EU judge,” tramples on the principles of international law, especially the Vienna Convention on the Law of Treaties.
“A treaty creates neither responsibilities nor rights for a third State without its consent,” says Article 34 of the Vienna Convention. In its ruling, the European court incorrectly attributed the notion of third party provided for in the Vienna Convention to the Polisario in order to justify its decision to grant it the right to present an appeal against the Morocco-EU agreements. In other words, the court misleadingly argued that the Polisario is a legal entity and thus a subject of international law to make it appear as a representative of the people of Western Sahara.
Yet, as Professor Abdelhamid El Ouali has demonstrated, the “Vienna Convention on the Law of Treaties is applicable only to states and only to them.” Eva Kassoti, professor at the Hague University of Applied Sciences, has taken the same view in numerous works on the subject.
For example, Kassoti argues that the content of the Vienna Treaty rules out any consideration of “the people of Western Sahara” as the third party in Moroccan-EU agreements. She also emphasizes the “problematic” nature of the interpretation that the Sahara has a legal status separated from Morocco as long as the Saharawis have the right to self-determination as a people living in a non-autonomous territory.
In addition, in its attempt to invalidate the legality of the agreement, the Court overlooked Article 31 of the Vienna Treaty, making use only of the articles that help it make the case for the alleged violation of the agreements of the Saharawis’ right to self-determination and enjoyment of the territory’s natural resources.
The European Court does not care about the principle of ‘subsequent practice’
More importantly, in its interpretation of the agreements’ alignment with the relevant rules of international law, the Court has purposefully overlooked the subsequent practice and behavior of the EU vis-à-vis Morocco. Eva Kassoti argues that the Court’s tendency to overlook the relevant rules of international law regarding the subsequent practice in the application of a treaty, “renders its findings questionable.”
Over the past three decades, it has been clearly established that the subsequent practice of the EU member states has lent legitimacy to Morocco’s de facto sovereignty over Western Sahara. As I explain in my latest book, throughout the negotiation process and before the signature of all relevant agreements with Morocco, the EU knew full well that the Western Sahara fell within the scope of said agreements. Brussels knew, in other words, that the exclusion of this territory would be a non-starter for Morocco, making it impossible for the two parties to sign any agreement. And so, the attitudes and subsequent practice of EU member states throughout the intervening years has created legal obligations from the EU towards Morocco.
Indeed, the overwhelmingly dismissive tone in which both EU member states and the European Commission have traditionally reacted to the court’s ruling constitutes an acknowledgement of the legal obligations that their subsequent practice over the past three decades have created vis-à-vis Morocco. It was thus not surprising when, just hours within the Court’s latest invalidation of the agriculture and fisheries agreements, Spain and most other EU countries rushed to reiterate their commitment to their strategic partnership with Morocco and their intention to abide by the terms of the agreements.
These renewed commitments speak not only of Morocco’s strategic importance for the EU, but also of a certain awareness of the legitimate expectations that the EU’ subsequent practice has created in Morocco in terms of the recognition of its sovereignty over the territory. Simply put, both EU institutions and member states are deeply convinced that Morocco will not settle for any behavior or action that falls short of reflecting their attitudes and practice towards it as far as the Western Sahara is concerned. They understand that any questioning of Morocco’s sovereignty over the Western Sahara could deal a serious blow to the growing partnership between the EU and its southern neighbor.
In this regard, it is very telling that, while calling for the annulment of the 2019 agreement between Morocco and the EU, the Court decided to maintain its validity for a 12-month period. This means the Court appears to have taken into account the European Commission and the European Council’s concern that the annulment of the agreement could bring “serious negative consequences for the external action of the European Union, and of the legal certainty of the international commitments to which it has agreed and which are binding on the institutions and the Member States being called in question.” The European Commission and the Council of Europe’s entreaties to the Court to maintain the effect of the 2019 agreement stem from their concern that such a scenario could fatally and irreversibly disrupt EU-Morocco relations.
Knowing that the agreements that the EU signed with Morocco over the past three decades and the subsequent practice and attitudes of member states have created legal obligations towards Morocco, the EU has long sought to avert a serious deterioration of its relations and potential legal battles between the two sides over the legal interpretation of their agreements. In this sense, the court ruling’s apparent consideration of this aspect is the only, tiny silver lining to an otherwise political and moralistic disregard of international legality. While providing a symbolic yet insignificant win to the Polisario and Algeria, the Court has afforded the EU, its member states, and Morocco enough time to work out a long-term solution out of this legal imbroglio in a way that will safeguard their strategic partnership while not questioning Morocco’s sovereignty over Western Sahara.
Misleading criteria of ‘Sahrawiness’
True to its twisted reasoning in the Morocco-EU case, the Court made the outlandish claim that the people that the EU Commission consulted before the signature of the 2019 agreement with Morocco are not Saharawis. To the court’s biased eyes, these are simply “current inhabitant of the territory” whose majority are not genuine Saharawis, while the “majority of these people are in exile in Algeria” since the 1970.
Here, the Polisario-friendly implication is that the status of Sahrawi applies only to those in the Tindouf camps. This raises the question of the court’s bases and criteria for what constitutes genuine Sahrawiness.
If the refugees in the Tindouf camps are genuine Saharawis, why has Algeria rejected all the requests of the Security Council to carry out a census in the Tindouf camps? In its ruling, the EU court eluded the obvious fact that Algeria refuses to do so because it knows that the majority of those in Tindouf are not Sahrawis from the disputed territory in southern Morocco, but came from Tindouf itself, Mauritania, Mali and Niger.
Another fact that raises serious questions about the Court’s motives and intentions in hailing the Polisario as the “legitimate representative” of the Sahrawis is the blatant lie in paragraph 19 of the ruling, where the Court claims that the Polisario Front was created in Western Sahara on 10 May 1973. Yet it is well known that the Polisario was not created in Western Sahara, but in the city of Zouirat in Mauritania. Moreover, it was created by a group of young Sahrawis who were not born in the territory.
Worse still, the same paragraph contains another blatant lie that is unworthy of a judicial body that is supposed to be guided by impartiality and concern for the truth. According to the Court, Article 1 of the Polisario’s manifesto states that it is a “national liberation movement” whose members “fight for the full independence and restoration of the sovereignty of the Sahrawi people throughout the territory of the Sahrawi Arab Democratic Republic.”
In fact, its manifesto states that it is “the unique expression of the masses, opting for revolutionary violence and armed struggle as the means by which the Sahrawi Arab people can regain its total freedom and thwart the maneuvers of Spanish colonialism.” The fact that the Court makes the shocking claim that the so-called SADR has existed since the first day of the creation of the Polisario shows the judges’ complete ignorance of the basic facts of the dispute, as well as their clear bias in favor of the creation of an independent state in southern Morocco.
The Court’s determination to question the legitimacy of Morocco’s claim to the territory, and instead to support Polisario’s separatist claims, is also evident in paragraph 17 of ruling, where it refers to Resolution 2229 of December 1966, in which the General Assembly urged Spain to allow the Sahrawi people to exercise their right to self-determination.
In paragraph 3 of the resolution, the General Assembly “calls upon the administering power to determine at the earliest possible date, in accordance with the wishes of the indigenous people of the Spanish Sahara and in consultation with the Governments of Mauritania and Morocco and all other interested parties, the procedures for holding a referendum under the auspices of the United Nations to enable the indigenous people of the territory to exercise their right to self-determination.” But in mentioning this article, the Court shockingly and mysteriously removed the part “in accordance with the aspirations of the indigenous people of the Spanish Sahara and in consultation with the Governments of Mauritania and Morocco and any other interested party,” where Morocco is mentioned as a concerned party along with Mauritania.
A lawyer can be expected to read a case selectively, omitting some facts that don’t serve his agenda, because at the end of the day his goal is to achieve a favorable outcome, regardless of the means he may use to achieve that goal. But a judge has a duty to be guided by impartiality and fairness. As such, he should disclose and consider all the facts and his decision should be based on a holistic analysis of the relevant facts. Any reading or analysis that is truncated or smacks of bias and deliberate omission or outright lies would lead to a truncated and biased result. This is the case with the European Court of Justice, whose decision-making process has been shaped by a biased and politicized analysis of the facts at hand.
Polisario’s questionable legitimacy
As I demonstrated throughout my book about the dispute, the existence of a full-fledge and distinguishable Saharawi people is a sheer figment of the imagination that was entirely created and cultivated by Algeria with the help of ideology-driven scholars and commentators.
Charles Vanhecke, a correspondent for Le Monde in Madrid, pointed out in a June 1979 article that even though the Spanish leaders knew full well that “the Polisario is composed of half of Saharans from Niger, Mali, Mauritania, and Algeria,” they were willing to support the group under the pretext that it had “succeeded in creating common bonds will among the Saharawi populations.”
A December 1977 report by the US Bureau of Research and Intelligence shattered the unfounded claim that the people in the Tindouf camps were originally Saharawi and hailed all from the Western Sahara. A very “large percentage” of the Sahrawis in the Tindouf camps are not native of the disputed Sahara territory, the report stressed, noting that they instead flocked to the region from Algeria, Mauritania, Mali, and even other parts of Morocco. Most made that journey to Western Sahara “either to escape the Sahel drought or because Algerian and Polisario spokesmen induced them to come.”
Mustafa Salma Ould Sidi Mouloud, a former Polisario police chief, made a similar point when he told me in a January 2020 interview that “Algeria and the Polisario want to do everything possible to prevent the international community from realizing that a third of the Saharawis in the camps are Rguibat from southwestern Algeria and have no connection with the Sahara.”
Yet the EU court’s ruling appears to be based on the principle of permanent sovereignty over natural resources in holding the consent of the local population as a sine qua non for the agreements between Morocco and the EU to comply with international law (PSPRN). As El Ouali has eloquently shown , however, “PSPRN is an attribute not of peoples, but of states.”
Many people in the Tindouf camps now have lost faith in the Polisario. Some blame the separatists for widespread corruption and the embezzlement of humanitarian aid intended for the refugees, while others – the majority, in fact – have simply stopped believing in the Polisario’s ability to put an end to their plight.
Thus, rather than a national liberation movement or a legitimate representative of the aspirations of the Sahrawis, many in these camps today consider the Polisario as the cause of the perpetuation of their tragedy.
Inconsistency with the UN-led Political Process
In addition to lacking competence to determine the validity of the Morocco-EU agreements, the court’s decision uses jargon that is incompatible with the one employed by the UN Security Council, the sole body with the legitimacy to deliberate over the Sahara conflict.
Whereas the UN talks of a political process to achieve a mutually acceptable and compromise-based political solution, the European Court’s ruling emphasizes that self-determination is synonymous with independence. The Court has clearly stated that the “people of Western Sahara” are engaged “in a struggle for the exercise of its right to self-determination and the creation of a sovereign Sahrawi state.” By using the phrase “creation of a sovereign Sahrawi state” the Court’s judges have clearly displayed their sheer bias, the outcome they wish to see materialize at the end of the UN-led political process, as well as their anachronistic reading of the conflict.
By insinuating that the right to self-determination means necessarily the establishment of an independent state, the Court’s judges willfully overlook Resolutions 1541 of 1960 and Resolution 2625 1970 according to which the right to self-determination can be exercised through “emergence as a sovereign independent State; free association with an independent State; or integration with an independent State. Such a selective interpretation of the relevant rules of international law is unbecoming of a Court that is supposed to uphold international. Nowhere in the Court’s decision are these two options mentioned.
Instead, the Court’s use of such jargon is reminiscent of the language used in the General Assembly Resolutions adopted between 1979 and 1990, which defended the right of the Sahrawis to self-determination and the establishment of their independent state. Not only did the Court display a tendentious understanding of the right to self-determination, but it also demonstrated amnesia within its ranks with regard to the ongoing UN-led political process in the Sahara affair.
The more one reads between the lines of the Court’s decision, the more flagrant its bias becomes. Over the past 21 years, the Security Council has completely buried the option of referendum, focusing its efforts on getting the parties to agree on a face-saving, compromise-based, and mutually acceptable political solution.
Yet the growing global consensus about the need for compromise and realism was not worth any mention by the Court, which only made a cursory mention of the whole political process initiated in 2003 and accelerated since 2007. Avoiding any mention of the UNSC’s repeated calls since 2007 on the parties to achieve a compromise-based political solution, the Court stressed instead that the UNSC resolutions have “regularly reaffirmed that any political solution must permit ‘the self-determination of the people of Western Sahara’ under agreements aligned with the principles and objectives enshrined in the Charter of the United Nations.”
The Court self-servingly preferred to limit its mention of the UN-led process to Resolution 34/37 of 1979, which describes Morocco as an “occupier” and emphasizes the right of the Sahrawi people to self-determination and independence.” It appears though as if the Court was engaged in a legal and political crusade whose goal was to demonstrate that the mere mention of self-determination in any UN document is tantamount to formal statement that the desired outcome of any such a process is the establishment of an independent state and that Western Sahara can by no means be regarded as Moroccan. In so doing, the Court seemed oblivious to the fact that Resolution 34/37 has lost relevance as far as the resolution of the conflict is concerned.
Beginning in 1990, the General Assembly, which had long favored the option of independence in the Sahara, was stripped of the prerogative to examine the territorial dispute. Ever since, the Resolutions that the General Assembly has adopted over the past 17 years, the last of which is Resolution 78/85 adopted on December 7, 2023, “support the political process initiated by Security Council Resolution 1754 (2007).”
What is more, after he Security Council took charge of resolving the dispute in 1990, it still explored the idea of a referendum to allow the population of the Sahara to choose between integration with Morocco or independence. However, disagreements over voter eligibility led to the failure of the Settlement Plan , as well as of the Baker Plan in 2001 and 2003.
The failure of the referendum approach ultimately led the UN Security Council to sideline, bury the referendum option. The term referendum has not been mentioned one single time for the past 21 years. Anyone who has taken time to read both the Security Council resolutions and the latest UN Secretary-General reports on Western Sahara can see for themselves that the UN’s political process disqualifies an independence referendum and instead emphasizes the need for a compromise-based political solution.
“To misname things is to add to the misfortune of the world,” Albert Camus famously said. Likewise, by misrepresenting the Sahara conflict, by turning international law on its head, and by oversimplifying the historical and social complexities of the Sahara conflict in order to reach a political and erroneous ruling, the European court has fallen in line with those who, in their doctrinal posturing as the saviors of the mythical Sahrawi people, feed the illusion of independence and thus perpetuate the diplomatic impasse and the accompanying social catastrophe.
Samir Bennis is the co-founder and publisher of Morocco World News. You can follow him on Twitter @SamirBennis.
