Benefit v Consent: CJEU’s Front Polisario II Judgment and the Law of Self-Determination
By Andrea Maria Pelliconi and Jed Odermatt
Published on 15 November 2024
On 4 October 2024, the Grand Chamber of the Court of Justice of the European Union (CJEU) found that fisheries and trade agreements concluded between the European Union (EU) and the Kingdom of Morocco violated international law (Front Polisario II). This is because these agreements apply with respect to goods originating in Western Sahara. The territory has been included in the United Nations (UN) list of Non-Self-Governing Territories since Spain added it in 1963. While Morocco considers it to be part of its sovereign territory, its presence in Western Sahara is widely considered to be an unlawful military occupation. As noted in an analysis of the judgment, this was the first time the CJEU (‘the Court’) has annulled a decision of the Council of the EU approving an international agreement because it contravened principles of international law binding on the Union. In this contribution, we argue that the CJEU rightly identified the indigenous people of Western Sahara as a whole — including displaced Sahrawis abroad — as holding the right to self-determination, but incorrectly used (economic) benefits as a proxy for implied consent.
The principle of relative effect of treaties
This case is the latest of a series where Front Polisario — the National Liberation Movement of Western Sahara headquartered in Algerian refugee camps — challenged trade and fisheries agreements between the EU and Morocco. In 2015, the General Court of the EU decided to partially annul the 2010 EU-Morocco Association Agreement on agricultural, processed agricultural and fisheries products, insofar as it applied to the territory of Western Sahara on the grounds, inter alia, that the EU failed to examine its impact on fundamental rights. This judgment was overturned on appeal in 2016 on the basis that Front Polisario lacked legal standing. This was the case because, importantly, the Association Agreement did not apply to Western Sahara, since the latter has a separate and distinct status from Morocco in international law (Front Polisario I, paras. 26, 92). This finding echoed the language in the UN General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States which sets out that ‘[t]he territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it …’.
In 2016, the Court held that the people of Western Sahara are to be regarded as a ‘third party’ within the meaning of the principle of the relative effect of treaties and as such their consent is necessary (para. 106). This principle is included in Article 34 the 1969 Vienna Convention on the Law of Treaties (VCLT), according to which ‘A treaty does not create either obligations or rights for a third State without its consent’. The Court has applied this concept to non-State ‘third parties’ (see Brita) through the customary international law principle of pacta tertiis nec nocent nec prosunt, which holds that a treaty cannot create obligations for a third party without its consent. Front Polisario argued that, by extending the scope of the agreements to the territory of Western Sahara and its waters, the EU and Morocco created obligations to which the people of Western Sahara have not consented. The CJEU found that the consent of Western Sahara’s people was a condition for the validity of any international agreements between the EU and Morocco implemented in such territory.
Following this 2016 appeal judgment, the European Commission (‘the Commission’) started negotiations with Morocco to explicitly extend tariff preferences to products originating in Western Sahara. The Commission also started consultations to assess the potential impact on the sustainable development of Western Sahara and the benefits for the local population. At the end of this process, two new agreements entered into force in 2019 after the Council of the EU gave its approval. Front Polisario challenged the validity of these agreements under Union law. In 2021, the General Court decided to annul the decisions of the Council for violating the principles of self-determination and the relative effect of treaties. On 4 October 2024, the Grand Chamber dismissed the appeals brought by the Commission and Council but delayed the effects of its decision for a period of twelve months.
The CJEU reiterated the need for the third party’s consent and found that it was lacking because the Commission failed to obtain the relevant people’s explicit consent, or to prove sufficient benefits to the people so that consent could be presumed. In doing so, diverging from its previous case-law from 2016, the Court introduced two new tests for the determination of the concepts of ‘people’ and ‘implied consent’.
The people of Western Sahara
The Court found that the Commission’s consultation process could not establish the affected people’s explicit consent. The consultation involved representatives of the population of the territory of Western Sahara under Morocco’s control. The population inhabiting a Non-Self-Governing Territory, however, does not coincide with the territory’s people, who is the political unit holding the right to self-determination. Such people ‘is’ the traditionally nomadic ethnic group of the Sahrawis who, as the Court notes, includes the Sahrawi diaspora abroad, those who live in Algeria’s refugee camps as a result of the invasion of Morocco, and those in the Western Sahara territories controlled by Front Polisario. Of a total of around 500,000 Sahrawis, only a quarter lives in the area under Moroccan control, which represents 80% of the territory of Western Sahara. In turn, according to the estimates provided by the Commission, only 25% of the population of occupied Western Sahara is of Sahrawi origin. It follows, the Court notes,
the majority of the current population of Western Sahara [under Morocco’s control] is not part of the people holding the right to self-determination, namely the people of Western Sahara. That people, which for the most part has been displaced, is the sole holder of the right to self-determination with regard to the territory of Western Sahara. The right to self-determination belongs to that people, and not to the population of that territory in general… (para. 128).
To support its position, the Court refers to numerous legal sources setting out the people of Western Sahara’s right to self-determination. This includes the 1975 International Court of Justice (ICJ) advisory opinion; the Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA 1514 (XV), 1960); and UN General Assembly resolutions specifically relating to Western Sahara, which refer to the ‘inalienable right of the peoples of Ifni and Spanish Sahara to self-determination…’.
In line with this principle, paraphrasing the CJEU, only the descendants of the Non-Self-Governing Territory’s indigenous people can constitute a valid political unit for self-determination. Morocco’s demographic engineering activities in the occupied territory, through a mixture of displacement of the Sahrawis and the settlement of Moroccans, prompted significant changes in the size and composition of the residing population, turning the Sahrawis into a permanent minority and obstructing self-determination. The Court has now explicitly clarified that it is for the indigenous Sahrawi people to decide on the fate of Western Sahara — including its economic exploitation — and the Commission’s consultation with the territory’s entire population could not equate to obtaining the consent of Western Sahara’s people.
Implied Consent
The judgment, however, differs from the 2016 decision in that it accepts that the people’s consent to the agreements does not need to be explicit. The CJEU spelled out a new two-step test whereby a third-party’s consent to an international agreement may be presumed so long as two conditions are satisfied. First, the agreement should not give rise to an obligation for the third party. The principle of the relative effect of treaties only requires express consent when a treaty creates obligations for the third party. When a treaty only creates rights for the third party, the latter’s assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides (cf. Article 36 VCLT). The Court reasoned that the agreements only imposed legal obligations on Morocco and not on the Sahrawi people, so the latter’s express consent is not required.
According to the second part of the test, the people should receive ‘a specific, tangible, substantial, and verifiable benefit’ from the exploitation of that territory’s natural resources proportional to the degree of that exploitation (para. 153). That benefit must be accompanied by guarantees that that exploitation will be carried out under conditions consistent with the principle of sustainable development, and a regular control mechanism to verify whether the benefit is in fact received, as per the paramount interests of the Non-Self-Governing Territory’s inhabitants (Article 73 of the UN Charter) and the customary international law principle of permanent sovereignty over natural resources. In this case, the Court found that the Commission had failed to prove that the second condition was met. The beneficiary of the tariff preferences is the Kingdom of Morocco, while ‘any benefit for the people of Western Sahara … is manifestly absent’ (para. 158). Consequently, ‘the people of Western Sahara cannot be presumed to have given its consent to the application of the agreement at issue in that territory’ (para. 160).
Problematising Consent
The Court’s approach can be applauded and criticised at the same time. The decision’s effects are suspended, which gives the Commission one year to seek solutions to meet the CJEU’s requirements. To be successful with concluding new agreements, the Commission would need to demonstrate they obtained the consent of the Sahrawi people. This is a rather difficult task for the Commission and a welcome step to ensure compliance with international law in EU external action. In addition, the Court’s unequivocal finding that the current local population of the occupied Western Sahara does not correspond to the people entitled to exercise self-determination over the territory has broader impact beyond EU agriculture and fishery agreements. The disagreement between Morocco and Front Polisario over the identification of those entitled to vote has been one of the biggest challenges in the organisation of a UN-backed referendum on self-determination by the UN Mission for the Referendum in Western Sahara (MINURSO).
On the other hand, the elaboration of the implied consent test may open the door for the EU to use an ill-defined idea of ‘benefit’ as a proxy for consent. Future agreements with Morocco may be deemed valid even in the absence of unequivocal consent by the Sahrawi people, provided that the EU builds a reasonable argument around benefits. As argued in a comment on the 2021 General Court judgment, the European Commission understands benefit in narrow terms, conflating socioeconomic benefits with convergence with EU standards. The Commission report States that ‘[b]y promoting a convergence of rules with EU standards in various fields, the Agreement will lead to indirect improvements in areas such as working conditions (including safety), labour legislation (including child labour), plant health measures and consumer protection’.
The test focuses on economic advantages, erroneously equating them with consent. This unilaterally subdues the people to a capitalist-oriented framework, suggesting that economic gain is the ultimate or only valid measure of their interests, and fails to consider that they may decide not to exploit their lands and natural resources. This approach risks marginalising alternative Sahrawi visions for self-governance that might not align with an exploitative economic framework. It diminishes the indigenous people’s agency and overlooks the possibility that they might choose different priorities (Article 32 UN Declaration on the Rights of Indigenous Peoples), such as preserving their land and resources for cultural, environmental, or future generational reasons. Indigenous groups’ values may emphasise stewardship, conservation, and intergenerational sustainability over short-term economic gain, so economic exploitation or development should not be assumed as the default or inevitable path.
While the agreements may bring economic benefits to some groups in Western Sahara, they have the effect of cementing the status quo and even consolidating Morocco’s illegal occupation. The focus on economic benefits ignores these broader concerns. Any evaluation of the benefits to the people of Western Sahara should include holistic considerations on the effective enjoyment of human rights, including the collective right to self-determination. It should also consider the political and legal cost of enabling an economic agreement that facilitates the establishment and consolidation of the occupying power’s presence and legal claims. The Court noted that ‘the possibility that that agreement might also benefit the inhabitants of that territory in general is not such as to prevent a finding of presumed consent on the part of that people’ (para. 161). In other words, an economic agreement could benefit both the Sahrawis and local Moroccan residents. This, however, fails to consider the inherent contradiction between the interests of the occupying power’s citizens, and those of the colonised, which lie in the liberation from occupation and the freedom to determine their own political future.
The CJEU also reversed the burden of proof by explaining that the presumption of consent may be ‘reversed so long as legitimate representatives of that people establish that the system of benefits conferred on that people by the agreement in question, or the regular control mechanism which must accompany it, does not satisfy the conditions’ (para. 156). It is thus for the people’s representatives to prove that the benefits are not, for instance, proportionate to the degree of exploitation of the natural resources. Furthermore, the Court stated that ‘[t]he fact that a movement which presents itself as the legitimate representative of that people objects to that agreement cannot, as such, be sufficient to call in question the existence of such presumed consent’ (para. 155).
In practice this approach deprives the concept of consent of any substance. That the existence of economic benefits should override explicit persistent objections in establishing the people’s consent is deeply counterintuitive. As the Court itself noted (para. 89), Front Polisario is a privileged interlocutor in the UN process of determining the future status of Western Sahara, and is regarded as the legitimate representative of its people. Its consistent objection to the agreements should be regarded as a clear indication of lack of consent; at the very minimum, it demonstrates the disagreement of those Sahrawis who are not currently living in the occupied Western Sahara, who, as noted above, constitute the vast majority.
In any event, consent should come from Western Sahara’s indigenous people, including those outside the occupied territories. The Sahrawi self-determination unit as a whole should consent to the agreements. If this is the requirement for explicit consent, it follows that it is also the requirement for implied consent. Even by accepting benefits as a proxy, the Commission would have to prove that the agreements would benefit the people of Western Sahara in its entirety – a scenario that is quite difficult to conceive.
Conclusion
As EU Member States, including France, move towards recognition of Morocco’s sovereignty over Western Sahara, the Court’s approach to issues of self-determination takes on greater importance. While the Court’s application of principles of self-determination are welcomed, its approach to implied consent is not. By continuing to focus on the law of treaties, the Court failed to examine the duty of non-recognition of situations arising from serious breaches of peremptory norms of general international law (Draft articles on Responsibility of States for Internationally Wrongful Acts, Article 41. 2), which would require the EU to disengage from any economic agreement pertaining to occupied territories whatsoever. Such a requirement was made clear in the ICJ Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. Instead, the Court’s decision to suspend the effects of its decision means that the illegal act at the heart of this dispute — the occupation of the territory of Western Sahara — will continue.