EJIL: Talk! | 13 July 2018
The Commission’s proposals to correct EU-Morocco relations and the EU’s obligation Not to recognise as lawful the ‘Illegal situation’ in Western Sahara
by Valentina Azarov and Antal Berkes
On 11 June 2018, the EU Commission adopted two proposals (here and here) for Council Decisions to amend the EU-Morocco Association Agreement so that “[p]roducts originating in Western Sahara subject to controls by the Moroccan customs authorities shall benefit from the same trade preferences” as products from Morocco (Annex of the Proposals, para 1). The proposals come on the back of the judicial proceedings before the Court of Justice of the European Union (CJEU) that challenged the de facto extension of EU-Morocco agreements to Western Sahara over the last few years (covered here and here). Yet, they concern the trade liberalisation agreement and not the EU’s fishing rights, which is a matter to be addressed separately. Their purpose is to provide cover for the extension of the agreements on three grounds: consultation with “interested parties”; positive indirect impact on human rights; and, a contribution to Western Sahara’s economic development.
Whereas the Commission’s proposals do not engage with any relevant questions of international law, in this post, we consider whether the Commission’s recent proposals accord with international law, with particular reference to the obligation not to recognise as lawful a situation created by a serious breach of a peremptory norm (Article 42(2) DARIO and Article 41(2) ARSIWA). We argue that the proposals violate the EU and its Member States’ obligation of non-recognition of Morocco’s jus cogens breaches: the right to self-determination of people, the prohibition on aggression (acquisition of territory by force), and some of the ‘intransgressible rules’ of international humanitarian law (IHL); insofar as the latter are a part of jus cogens (Wall AO, para. 157; Nuclear Weapons AO, para. 79). We further consider whether wrongfulness can be precluded by the consultation or consent of the Sahrawi people as a third party to the agreement, and whether the benefit provided under the agreements justifies an exception to third parties’ obligation of non-recognition. We conclude that neither of the exceptions apply and that the EU is precluded from extending the agreements to Western Sahara as a matter of international law.
The Commission’s proposals overlook the consequences of the aforementioned violations of peremptory norms being perpetrated by Morocco in Western Sahara by defining the territory as a province under its domestic law, displacing the Sahrawi people from the territory, and transferring Moroccan civilians there. In sum, Morocco’s policies and practices with regards to Western Sahara have had the effect of denying the Sahrawi people’s right to self-determination, including their right to permanent sovereignty over natural resources. The Commission’s proposals however do not discuss either the occurrence of these jus cogens violations, or what this means for the legality of the extension of EU-Morocco agreements to Western Sahara.
In its 2016 Front Polisario and 2018 Western Sahara Campaign decisions, the CJEU rejected the extension of both the EU-Morocco association agreement and fisheries agreement to Western Sahara. But, unlike Advocate General Wathelet (2016 opinion, para 259, 2018 opinion, para 128), its judgments did not expressly address the violation of jus cogens norms by Morocco in Western Sahara, let alone examine the implications of third states and international organisations’ obligations not to recognise as lawful the ‘illegal situation’ predicated on the aforementioned peremptory norm violations. These silences permit the Commission to claim that its proposals respect the CJEU’s decisions, and are “without prejudice to the respective positions of the European Union and Morocco with regard to the status of Western Sahara”. Indeed, the Commission maintains that “nothing in the Agreement implies that it recognizes Morocco’s sovereignty over Western Sahara.” These disclaimers do not sit well with the fact that the EU has for some time acquiesced to the extension of the agreements to Western Sahara and granted preferential trade treatment to products from Western Sahara as though they were from Morocco.
Wrongful recognition can be defined as giving effect in the national system of the recognising state to the rights, titles and entitlements predicated on peremptory norm violations. Giving effect to jus cogens violations in this way consolidates the ‘illegal situation’ they constitute (Dawidowicz 2010; Crawford 2012, p 603). Bilateral agreements are a form of intergovernmental cooperation with the occupying Moroccan authorities (see the conclusion, mutatis mutandis, in Anastasiou, para 63) because they have exclusive control over roughly two thirds of Western Sahara so as to ensure compliance with the trade preference rules by operators that produce in and export from the territory (Proposals preamble, para 6). By permitting the extension of such relations to the territory under its partner country’s control (and not sovereignty), the EU is implicitly recognising as lawful the effects of Morocco’s control over the territory in its internal law (see Namibia AO, p. 55, para 121), in breach of its obligations under DARIO, and its Member States’ obligations under ARSIWA. It may also give rise to claims under EU law-based obligations to ensure the “strict observance of international law” (Articles 3(5) and 21(3) TEU; Larik 2018), which are not covered by this post.
In its 2016 judgment, despite not deeming the agreement to be territorially applicable to Western Sahara, the CJEU upheld the requirement for the consent of the Sahrawi people “in the event that the territory of Western Sahara comes within the scope of that agreement” so as to preclude the wrongfulness of this extension (para. 106; VCLT, Art. 36, cited in p. 8, para 4/3 in both proposals).
A first difficulty with this logic is that both the third state rule (VCLT, Art 36) and the rule on consent as a circumstance precluding wrongfulness (ARSIWA, Art 20) apply to States, not to national liberation movements such as the Polisario Front. Secondly, even if Sahrawi consent is a viable exception, any exploration and exploitation of the natural resources of a non-self-governing territory require the consent of its people (African Union expert opinion), in our case via the Polisario Front as their international representative (GA resolution 34/37).
A third issue is the fact that the Commission disregards Morocco’s transfer of its population into Western Sahara. The Commission claims that “consultations covering a wide range of socio-economic and political operators from the Western Saharan population” (and not people, to which we return below) showed broad support for the extension of the trade preferences under the association agreement to Western Sahara (Proposals preamble, para 10). It refers to the ‘population’ which currently resides ‘in’ the territory, as opposed to the Sahrawi ‘people of’ the territory. For the South African High Court’s June 2017 judgment in the NV Cherry Blossom case (para 48), which involved a ship transporting phosphate mined in Western Sahara by two Moroccan state-owned companies, the population transfers from and to Western Sahara foreclose the possibility of gaining the Sahrawi people’s consent:
Their [the companies’] claim to mine phosphate for the benefit of the people is disputed by the SADR [Sahrawi Arab Democratic Republic] and the PF [Polisario Front]: as most of the Sahrawi people live to the east of the berm [a military fortification constructed by Morocco in the east of the territory] or in refugee camps in Algeria, those who may benefit from the mining of phosphate are not the ‘people of the territory’ but, more likely, Moroccan settlers.
Yet, the Commission appears content with its efforts to obtain consent from various Sahrawi ‘operators,’ while setting aside the views of the Polisario Front, as well as of the Sahrawi NGOs who objected to the extension of the agreement (Proposals, explanatory memorandum; 93 out of the 113 NGOs listed by the proposals claim in a statement that they have not been contacted.
In sum, even if the consent of the Sahrawi people could have permitted recognition as lawful of the illegal situation in Western Sahara in the agreements with the EU, the Commission is seeking participation and consultation without the need for Sahrawi consent.
A ‘Namibia exception’?
As one of the justifications for its proposals, the Commission evokes the benefit to the “socio-economic development” of the population of Western Sahara from economic relations with the EU (Proposals, explanatory memorandum; report of the EEAS). The “benefit” requirement is part of the standard of conduct required of international administrators of a non-self-governing territory (Article 73 of the UN Charter). Morocco is an occupying power, not an international administration. It has moreover displaced most of the population and overtly pursues the permanent acquisition of the territory. It has thus rendered itself unable to extend a genuine and effective benefit to the people of the territory, many of whom it has displaced from the territory and whose return to the territory it prevents.
Despite the existence of an illegal situation that should not enjoy recognition, an exception to the effects of non-recognition was made possible by the so-called Namibia exception, established by the ICJ in 1971 for “acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory” (see Namibia AO, p. 56, para 125). While the exception is intended to cover acts that have ‘a positive overall effect’ on the ‘local population’, it would not, applied to the Commission’s proposals, cover individuals who are present in the territory as a result of the occupying state’s serious breaches of IHL (Proposals, preamble, paras 8-9). It is further unclear what would be the status under the EU’s agreement with Morocco of economic operators in the ‘liberated territory’, the one third of the territory of Western Sahara that is under the Polisario Front’s control.
To accept this interpretation is to permit the Commission to ignore the myriad of violations of international law occurring under Morocco’s control (EEAS report, part 2.1), the gravity of which on its own should be sufficient to demonstrate the severity of the “specific negative effects on the people concerned in Western Sahara” of Morocco’s policies.
Permitting the extension of the agreements under the ‘Namibia exception’, which was originally intended to be narrowly construed to cover acts “of a humanitarian character” (see Namibia AO, p. 55, para 121; Costelloe pp 376-7), and not intergovernmental economic relations that imply the recognition of sovereignty (see Namibia AO, p. 55-56, para 124; Pellet, Crawford), would therefore be unreasonable. The ‘Namibia exception’ does not apply to economic relations that benefit the occupying state (and not the sovereign people), such as that which grants Moroccan traders preferential treatment.
The proposals have now been sent to the Member States in the Council and to the European Parliament, which is scheduled to vote on the proposals on July 15 (the same day the Protocol to the EU Morocco fisheries agreement expires). To ensure that the proposals accord with international law, the EU must require Morocco to make essential reforms to its administration of Western Sahara, annulling its annexation law and administering the territory and its people (and not local population) as occupying power with a legitimate military purpose to remain in the territory (and not as its sovereign or its international administrator). At present, Morocco’s violations of peremptory norms of international law preclude it from claiming that it is acting either for the benefit or with the support or consent of the Sahrawi people. By adopting the current proposals, the EU and its Member States risk breaching their obligations under the law of state responsibility; a state of affairs that is bound to spur further litigation in domestic and EU courts to challenge the validity of the rights and entitlements arising from the maintenance of the illegal situation in Western Sahara. Only last week, the Polisario’s lawyers submitted further challenges before the CJEU to the negotiations and the application of the civil aviation agreement to Western Sahara.