Whose Consent?

Article 3(5) of the Treaty on European Union (TEU) sets out the Union’s obligation to “contribute […] to the strict observance and the development of international law”. The Court of Justice of the European Union (CJEU) has interpreted this to mean that “when [the Union] adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union.” Until now, however, the CJEU had not gone so far as to annul a Union legal act on the basis that it violates international law. On 4 October 2024 the Grand Chamber of the Court of Justice upheld the General Court’s decision to annul two economic agreements concluded between the European Union and the Kingdom of Morocco. The landmark judgment is the first time the CJEU has annulled an EU agreement for violating international law binding on the Union.

The legal and factual background to these cases has been discussed elsewhere on this blog. The cases relate to the former Spanish colony of Western Sahara, which is considered by the United Nations to be a non-self-governing territory. In a 1975 Advisory Opinion, the International Court of Justice (ICJ) recognised the people of Western Sahara have the right to self-determination. The status of the territory continues to be subject to a long-stalled United Nations mediated peace process. France, the only EU Member State with a permanent seat on the UN Security Council, recently backed Morocco’s autonomy plan that would recognise Morocco’s sovereignty over the territory.

The economic agreements between the European Union and the Kingdom of Morocco have been the subject to ongoing litigation before the CJEU and domestic courts in the EU Member States over the last decade. In December 2015, the General Court annulled the Council Decision approving the Euro-Mediterranean Agreement concluded between the EU and Morocco in so far that it applies to the territory of Western Sahara. That decision was reversed on appeal in 2016. In these judgments, the Court highlighted two important factors. First, the territory of Western Sahara is separate and distinct from Morocco. Second, as Western Sahara is considered a ‘third party’ to these agreements, they can only apply with respect to Western Sahara with the consent of the people of Western Sahara.

Following this case-law, the EU then concluded new agreements – the Euro-Mediterranean Agreement and Sustainable Fisheries Partnership Agreement – with Morocco. Unlike the former contested agreements, these explicitly apply with respect to the territory of Western Sahara and its coastal waters. In order to satisfy the requirements set out by the CJEU, the European Commission and European External Action Service (EEAS) conducted consultations with groups in Western Sahara, concluding that the agreements would provide economic and social benefits to the people living in that territory. The EEAS/Commission Report concludes that “most people now living in Western Sahara are very much in favour of the extension of tariff preferences to products from Western Sahara under the EU-Morocco Association Agreement.” Front Polisario, the group that is recognised to represent the people of Western Sahara at the international level, was opposed to the conclusion of the agreements. In April 2019, Front Polisario brought an action for annulment against the Council Decision. It argued that the Commission and Council had inter alia failed to comply with the Court’s requirements and violated the Union’s obligations under international law, in particular the principle of the relative effect of treaties and the right of the Sahrawi people to self-determination.

In September 2021, the General Court found that these new agreements were concluded without the consent of the people of Western Sahara. The Commission and Council appealed. In March 2024, Advocate General Ćapeta delivered her Opinion, concluding that the contested decision did not breach either the principle of the relative effect of treaties or the right to self-determination. AG Ćapeta considered Morocco to be an ‘administering power’ within the meaning of Article 73 of the UN Charter, and capable of consenting to the agreement’s application to “the separate territory of Western Sahara, which it currently administers.” This is despite the fact that Morocco considers Western Sahara to be its sovereign territory and does not consider itself to be an administering power (see analysis here).  AG Ćapeta’s position was criticised for ignoring a rich body of UN practice recognising Front Polisario as the representative of the Saharawi.

The proceedings give rise to the question: who is capable of consenting to an agreement that applies with respect to a non-self-governing territory in the light of the principle of self-determination under international law? And how is such consent to be expressed?

Standing

The Western Sahara cases have all dealt with the question of whether Front Polisario has the legal capacity to bring legal proceedings before the CJEU challenging EU acts. The Commission and Council argued that Front Polisario could not bring an action for annulment as they were not “directly and individually concerned” by the Council Decision. Front Polisario does not have legal personality within any EU Member State. The Grand Chamber notes, however, that Front Polisario has been recognised internationally as being capable or representing the people of Western Sahara. It points out that

“Front Polisario is, according to the resolutions of the highest bodies of the United Nations, including those of the United Nations Security Council referred to in paragraph 31 of the present judgment, a privileged interlocutor in the process conducted under the auspices of the United Nations with a view to determining the future status of Western Sahara. It also participates in other international fora in order to defend that people’s right to self-determination.” (Joined Cases C‑779/21 P and C‑799/21 P, para. 89)

Thus, it found that Front Polisario is capable of contesting a Union act that affects the people of Western Sahara as the holder of the right to self-determination. The judgment contributes to the developing case-law relating to the capacity of entities outside the European Union to challenge Union measures (see discussion here).

Another question relates to the standard of review. In Western Sahara Campaign UK, the Court held that it was possible to annul an EU act, in both an action for annulment and a request for a preliminary ruling, on the basis that it was not compatible with rules of international law binding on the Union. The Commission and Council argued that an EU act can only be annulled if it shows a manifest error of assessment in applying customary international law. In particular, it argued that the Council has a margin of discretion in the sphere of external relations, including how it applies international law. The Grand Chamber dismissed this argument, finding that the margin of discretion is legally circumscribed by the principle of the relative effect of treaties and the principle of self-determination.

Consent

Whereas previous cases revolved around questions related to the agreements’ territorial application, Front Polisario II turns on the issue of consent. The Grand Chamber upheld the General Court’s finding that the EU-Morocco agreements were concluded without the consent of the people of Western Sahara. In a commentary on the case, I argued that the EEAS/Commission consultations with groups in Western Sahara failed to demonstrate the “free and genuine expression of the will of the people concerned” (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion ICJ Reports 2019, para. 172) under international law. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) also recognises the rights of indigenous persons to participate in decision-making through representatives chosen by themselves. The Grand Chamber concludes that the EEAS/Commission consultations “cannot … amount to obtaining the consent of the ‘people’ of the Non-Self-Governing Territory of Western Sahara.”

The Grand Chamber examined the question of who is capable of giving consent. It differentiates between the concepts of the ‘population’ of a non-self-governing territory from the ‘people’ of that territory. The Grand Chamber finds that it is the people of the territory who possess the right to self-determination, not the inhabitants of that territory. The consultations focused on the ‘people concerned’. The Grand Chamber found that this is different from the people of Western Sahara, who may exercise the right to self-determination.

The Grand Chamber diverges from the General Court, however, in finding that consent need not be explicit. It argues that under customary international law, the consent of a third party may be implied if certain conditions are met. First, the agreement must not establish an obligation on the third party. While the EU-Morocco agreement produces legal effects in relation to the people of Western Sahara, the Grand Chamber found, contrary to the General Court, that this does not give rise to legal obligations for the people of Western Sahara.

The Grand Chamber then sets out a second, more detailed, criterion:

“…the agreement must provide that the people itself, which cannot be adequately represented by the population of the territory to which the right of that people to self-determination relates, receives a specific, tangible, substantial and verifiable benefit from the exploitation of that territory’s natural resources which is proportional to the degree of that exploitation. That benefit must be accompanied by guarantees that that exploitation will be carried out under conditions consistent with the principle of sustainable development so as to ensure that non-renewable natural resources remain abundantly available and that renewable natural resources, such as fish stocks, are continuously replenished. Lastly, the agreement in question must also provide for a regular control mechanism enabling it to be verified whether the benefit granted to the people in question under that agreement is in fact received by that people.”(para. 153 emphasis added).

The Grand Chamber here is setting out the minimum conditions that would be required for an EU-Morocco Agreement to comply with international law, in particular Article 73 of the UN Charter relating to non-self-governing territories. The Grand Chamber emphasises that “the interests of the peoples of non-self-governing territories are paramount.” (para. 154). If these conditions are satisfied, the Grand Chamber reasons, the EU’s actions would be compatible with Article 21(1) TEU, by being based on the principles of the Charter of the United Nations and of international law.  The EU institutions, including the CJEU, continue to focus on ‘benefits’ to the population derived from the EU-Morocco agreements. These benefits are considered in economic terms and relate to the exploitation of natural resources. This approach ignores the broader effect of the EU-Morocco agreements on the dispute. In particular, the focus on resources overlooks Front Polisario’s concern that the agreements would have the effect of consolidating the status quo,  even leading to some states recognising Morocco’s sovereignty over the territory. While the Grand Chamber bases its reasoning on customary international law, there is little analysis of where these customary rules originate. Beyond a reference to Free Zones of Upper Savoy and the District of Gex the Grand Chamber does not indicate how it developed its criteria for implied consent.

The Grand Chamber found that the EU-Morocco agreements fail to satisfy the second leg or its test, and thus decided to annul the Council Decision. However, it delays the effects of the annulment for 12 months. Along with its “specific, tangible, substantial and verifiable benefit” test, the Grand Chamber gives the EU institutions another attempt to make the EU-Morocco agreements international law compliant. The judgment sets out a new legal framework for how implied consent can be understood in the context of international agreements affecting non-self-governing territories.

Conclusion

This judgment is a landmark for the CJEU in its application of international law. The Grand Chamber is navigating a difficult path; it seeks to ensure EU agreements comply with international law and respect the rights of the people of Western Sahara while seeking to maintain economic relations between the EU and Morocco. A Joint Statement by President von der Leyen and High Representative/Vice-President Borrell “reiterates the high value [the EU] attaches to its strategic Partnership with Morocco, which is long-standing, wide-ranging and deep.” The Grand Chamber is acutely aware of the politically sensitive nature of the dispute and the implications for the Union’s relations with Morocco and beyond. The Grand Chamber judgment may also have implications for the Union’s agreements with other “disputed territories”. The EU’s trade and economic relations with Israel have also come under closer scrutiny, especially in the light of the International Court of Justice’s Advisory Opinion on Israel’s unlawful settlements in the Occupied Palestinian Territory. Meanwhile, the United Kingdom has agreed that  Mauritius is sovereign over the Chagos Archipelago, including Diego Garcia, a move which also took place in the context of the ICJ advisory opinion on self-determination. The Grand Chamber’s judgment will no doubt be presented as an example of the Court’s commitment to international law. At the same time, the CJEU’s approach continues to allow a legal situation – Morocco’s occupation of Western Sahara – to continue.