On Tuesday 13 September, the advocate general Melchior Wathelet told the Court of Justice that the European General Court may have badly assessed the situation in the Western Sahara and the legitimacy of the Polisario Front by challenging the liberalisation agreement between the European Union and Morocco, but the European Court of Justice should nevertheless establish that the Western Sahara is not part of Morocco and therefore that neither the EU-Morocco association agreement nor the liberalisation agreement apply to it.
On 10 December 2015 (see EUROPE 11450), the General Court published a ruling that caused a shockwave both in the European institutions in Brussels and in the Moroccan capital, Rabat. The General Court not only cancelled application of the EU-Morocco agreement on the mutual liberalisation of trade in processed farm products, fish and fisheries products to the area of the Western Sahara, but it also recognised the Polisario Front as a representative of the Western Saharan people and therefore with the authorisation to challenge other international agreements (see EUROPE 11451).
This ruling was contested by the Council of the EU, which received the backing of the European Commission (Case C-104/16 P), Belgium, Germany, Spain, France and Portugal. While the advocate general backed a number of the arguments put forward by the Council, he nevertheless concluded that the Western Sahara was on the UN list of non-autonomous territories (these relate to the scope of its resolution on the right to self-determination by colonial peoples) and that it was not part of the territory of Morocco. He therefore suggested cancelling the General Court ruling and rejecting the Polisario Front's appeal as non-valid, as the Polisario Front no longer has any interest in having the contested decision cancelled because the agreements signed with the EU did not apply to the territory in question.
To support his conclusions, the advocate general put forward a number of arguments. He said the Western Sahara is a non-autonomous territory that relates to the scope of the United Nations resolution on the right to self-determination for colonial peoples. Practice requires countries to explicitly mention that international agreements apply to such territories, but the Western Sahara is not mentioned in the association agreement or the liberalisation agreement.
The European Union and its member states have never recognised the Western Sahara as being part of Morocco or coming under its sovereignty. There is no proof that these agreements have been applied on the territory, in full awareness of the parties concerned. Wathelet points out that international law does not in principle allow the extension of the scope of application of a bilateral treaty to a third party that is not one of the signatories to the treaty, such as the Western Sahara vis-à-vis the EU and Morocco.
Finally, unlike the General Court, Wathelet said that the Polisario Front was not "directly and individually" concerned by the decision in question. While the Polisario Front represents the people of the Western Sahara in the political process aiming to resolve the question of self-determination, it should not be recognised as a legitimate party for defending the Western Sahara’s trade interests and is not its sole representative, as Wathelet has not ruled out that Spain might still have responsibilities in this connection, as the former colonising power.
If the Court decided not to follow this reasoning, but to consider that the agreements in question apply to the Western Sahara and that the Polisario Front is a legitimate party for contesting them, it should follow the General Court’s ruling and reject the Council’s appeal, the advocate general suggests. The reason for this is that the Council should have taken into account the human rights situation on the territory and the impact of the liberalisation agreement. He said that an analysis of the impact on economic resources was not necessary, as the General Court argued.
Asked about this legal opinion, the European Commission refused to comment on the detail, a spokesperson saying the Commission would not comment on what was simply a stage in the judicial procedure. (Original version in French by Jan Kordys)