The EU Required to Collect the Consent of the "People of Western Sahara"

The judges in Luxembourg have just ruled on a matter that appears to be strictly commercial, but which may have profound geopolitical consequences. Indeed, at the heart of the legal dispute before the Court is the very concept of the "people of Western Sahara", which has caused headaches for the various UN envoys over the past 30 years and which, in view of the decisions under discussion, is far from being delimited. 

Problematic relations

In its judgments last week, the General Court (EU's first judicial instance) upheld the Polisario Front's appeals against the intended application of EU-Moroccan trade agreements to the territory of Western Sahara. Under the 2006 and 2010 agreements, which are part of the previous Euro-Mediterranean Association Agreement of 1996, products originating in Morocco benefit from favourable customs conditions and EU fishing vessels are authorised to fish in Moroccan waters.

The problem arose when the agreements de facto started to be applied to the territory and waters adjacent to Western Sahara. Challenges to the agreements on these grounds already led the Court of Justice of the EU (CJEU - the highest judicial instance) to deem in 2016 and 2018 that the agreements were not applicable to the former colony and that any attempt to extend their effects would require the consent of the Saharawi people. 

The vagueness of what was to be understood by 'people of Western Sahara' - which the UN mission has faced since its inception in 1991 - led the European Commission, in its eagerness to maintain trade relations, to consult the 'populations concerned', canvassing elected officials and members of civil society in the Moroccan-controlled part of the territory. In this task, the European executive claimed to have obtained a favourable response from "the majority of political representatives consulted, all of them of Sahrawi origin", despite acknowledging the absence of a response from the Polisario Front (which fundamentally rejects the very application of the agreements) and the criticism received from some NGOs regarding the lack of real consultation with civil society. 

Based on this assertion, the EU Council proceeded with the extension of the controversial agreements. However, the GC has just ruled that the consultation carried out by the Commission is not sufficient and does not amount to the necessary collection of the consent of the 'people of Western Sahara'.

In its extensive decision, the Court criticises the Council's failure to comply with the "clear, precise and unconditional obligations" contained in the previous judgments of the CJEU and deriving from the principles of self-determination and the relative effect of the treaties: respect for the "separate and distinct status" of Western Sahara and the obligation to "ensure the consent of its people in the event of implementation of the Association Agreement on that territory". The Court underlines that insofar as the alleged extension of the agreements creates obligations for the Saharawi people, it is not sufficient to prove an alleged benefit for the "populations concerned", but that such obligations must be expressly consented to by the "people of Western Sahara".   

The Court thus annulled the intended extension, but did not order the immediate application of the judgments "in order to preserve the external action of the Union and the legal certainty of its international commitments". Consequently, the decisions will remain in force at least until the judgments become final within two months or until the CJEU rules on the foreseeable appeal by the Council, which could take more than a year. 

International reactions

Far from the expected reaction of rejection, it seems that Morocco will wait for the final resolution of the dispute before making any moves. Thus, in a joint statement by Foreign Minister Nasser Bourita and High Representative Josep Borrell, both have expressed their willingness to adopt 'the necessary measures to ensure the legal framework that guarantees the maintenance and stability of trade relations between the European Union and the Kingdom of Morocco', all in a 'climate of serenity and compromise'.

Rabat's adoption of reprisals similar to those undertaken in 2011 or 2016 can therefore be ruled out, at least for the time being. In addition to the foreseeable appeals that will suspend the effectiveness of the judgments, it is possible that this cautious attitude has been influenced by the analysis of the migratory incidents in Ceuta last May, which were strongly criticised by the European Parliament and several member states, as well as the upcoming presidential elections in France, Morocco's great European ally whose candidates will seek to be forceful on migration issues. What is certain, however, is that Morocco is not willing to give an inch on the issue of sovereignty over what it recognises as its 'southern provinces'. In the past, it has already linked the validity of trade agreements to the maintenance of cooperation on migration and security issues with the EU, so that an unfavourable ruling could make it rethink its relations with the entire European club at a time when it is beginning to have new partners at the international level. 

Spain, as the member state most likely to be affected by the annulment, advocates appealing the judgments before the CJEU and maintaining normal economic ties with Rabat. Not surprisingly, most of the fishing licences in Western Saharan waters are operated by Spanish vessels, coupled with the fact that bilateral relations are not at their best after the migratory crisis in May and the previous diplomatic clash over the Ghali affair, which Foreign Affairs Minister Albares is still trying to overcome. Despite not recognising Morocco's sovereignty over the former province and publicly backing the process before the UN, Spain has for years been deploying discreet diplomatic influence in favour of Moroccan interests, as well as maintaining a cordial relationship with the new Prime Minister Akhannouch, who has in the past been awarded the Grand Cross of Agricultural and Fishing Merit in his capacity as Minister of Agriculture and Fisheries for the past fourteen years. 

Collecting Sahrawi consent

While resolving - at least provisionally - the question of the legality of the extension of the trade agreements, the judgments leave unclear the real question underlying the whole conflict: who can give the consent of the "people of Western Sahara".  It certainly seems clear that the Court does not attribute such capacity to the elected officials of the territory under Moroccan control or to the entities questioned by the Commission. But neither does it state too clearly whether it would be sufficient for the Polisario Front to give (or withhold) its approval on behalf of the Saharawi people.

Thus, although for the purposes of standing to bring the appeal, the judges recognise that "the Polisario Front enjoys international recognition as the representative of the people of Western Sahara", the fact is that the judgement does not proclaim categorically and expressly that this organisation could, if necessary, grant the consent necessary for the implementation of the agreements on its own. Certainly, the Court refers to the UN's recognition of Polisario's representativeness for the purposes of its participation in the self-determination process, "which does not mean that it cannot represent the people of Western Sahara in the context of an agreement between the Union and the Kingdom of Morocco concerning such domains [trade and customs]", adding that "it does not appear that the UN bodies have recognised other organisations as being entitled to represent the people in question".

But as we can see, these are negative and extraordinarily confusing formulations, such as the one used later on when it states that it has not been proved that such consent was impossible to obtain - as the Commission tried to argue, invoking the "particular situation" of Western Sahara - since it could have been collected "through" the Polisario Front. 

What may appear to be a legal technicality is not really so, since, given the Polisario's abstention from participating in the Commission's consultation process, it could have been enough for the Court to say, if it so considered, that the representative of the Saharawi people had not consented to the extension of the agreements. If it does not say so clearly, it is because it cannot establish - as the UN has not done in any of its resolutions - the Polisario Front to be the only organisation legitimised to grant the Saharawi people's consent to the signing of international trade agreements. It remains unclear, therefore, whether the Polisario Front should be involved in collecting this consent and, if so, whether this involvement should be exclusive and unique or in the framework of a possible wider plebiscite on both sides of the sand wall. 

Therefore, if the direction of the decision and the indeterminacy on this issue are ultimately maintained, the EU could find itself once again faced with the difficulty of establishing who is legitimised to accept the implementation of the agreements and whether or not to involve the Polisario Front in the necessary obtaining of the consent of the "people of Western Sahara". 

Be that as it may, it seems that these rulings only constitute a new (but not definitive) step towards the resolution of the issue, which will have to wait at least another year until the CJEU rules on the appeals. It remains to be seen whether the European judges decide to close the case once and for all and show the way forward for the legal exploitation of the territory's resources.