EU Court of Justice Annuls Trade Agreement Between EU and Morocco for Failing to Secure Third Party Consent from Western Sahara
Yesterday, the Court of Justice of the European Union legally annulled agreements on agricultural trade and fishing partnerships between the European Union and the Kingdom of Morocco. The Court determined that the European Union and Morocco did not secure the legally required consent from Western Sahara, a third party to the agreement, a necessary element of customary international law.
The Court found that because the Polisario Front, the UN-recognized representative organization for the Sahrawi people, is recognized internationally and is involved in the self-determination process for Western Sahara, it has the autonomy and competencies to sue and defend itself in court. As a legal entity, the Polisario were excluded from the agreements. Moreover, because the agreements dealt explicitly with the Western Saharan territory and adjacent territorial waters, Western Sahara is a third party to the treaty. The subjects of these treaties expressly concern the rights of the Western Saharan people and impose obligations upon them; therefore, the consent of the people of the Sahara was required.
In executing the treaties, the European Union and Morocco held “consultations” with the “people concerned,” but never obtained Western Sahara’s consent. Consequently, the Court found these “consultations” did not amount to an expression of consent from the people of Western Sahara, making the treaties between Morocco and the European Union invalid.
Western Sahara is a non-self-governing territory, meaning it has not yet to achieve full self-determination. Morocco has occupied about 80% of Western Sahara since the 1990s, exerting control over the natural resources and people in the territory. Under international law, however, Morocco does not have sovereignty over Western Sahara, and the Sahrawi people have a right to self-determination. The Court affirmed this position, inferring from both the principle of self-determination and the treaties’ obligations on Western Sahara, along with Western Sahara’s separate and distinct status, that consent was necessary to implement these agreements.
Last December, President Trump recognized Moroccan sovereignty over Western Sahara as part of the Abraham Accords deals in exchange for Morocco normalizing relations with Israel. No consent was received from the Polisario Front or any other Western Saharan civil society group. This deal went against international law, precisely the principle that obligations may be imposed only upon another state with their consent. The people of Western Sahara were placed in the untenable position of recognizing Moroccan sovereignty, thus ceding their rights to liberty and self-determination.
Today’s decision reinforces what the Global Liberty Alliance (GLA) discussed in the March 2021 law note it published: Western Sahara is its own autonomous state, and the Sahrawi people are entitled to their land and liberty under international law – a position that follows long-standing U.S. policy and that enjoys strong bipartisan support.
The European Union Court of Justice’s decision is a win for Western Sahara and the Sahrawi people. The Collective of Sahrawi Human Rights Defenders (CODESA), in a statement on yesterday’s decision, urged the European Union to call for the withdrawal of companies who trade and benefit from the natural resources of Western Sahara and to engage with the Polisario Front in a dialogue to get Sahrawi consent.
Western Sahara is the only remaining African colony and has been illegally occupied by Morocco since 1975. But the process has been corrupted by The Kingdom of Morocco as it has advanced the false view that Western Sahara is a fully integrated part of Morocco. Both Republican and Democrat administrations have supported the United Nations’ mandate to provide the Sahrawi a referendum on self-determination. The issue has not been resolved because Morocco has poured millions of dollars into lobbying to block the successful implementation of the referendum. They have even bribed U.N. officials and lawmakers, as detailed by numerous leaked reports, including one prepared by the United Nations’ own Department of Peacekeeping Operations.
As longtime Western Sahara advocate, Defense Forum Foundation’s President Suzanne Scholte has said many times: “The Sahrawi embrace of Western ideals including religious freedom and women’s equality, their intolerance of extremism, and their severe punishments for traffickers and anyone associated with terrorism have caused Islamic extremists to label the Sahrawi as “too close to the West and not pious enough.” A testament to their embrace of religious freedom is the fact that many Americans, sponsored by Christian churches, are openly living in the refugee camps and American children have even been born there to these Christian families.”
The Global Liberty Alliance is part of an international coalition that supports self-determination for the Western Sahara and holding to account perpetrators of the fundamental rights of the people of Western Sahara.