Tuesday 13 September, Advocate General Wathelet delivered his opinion on the matter of the EU-Polisario case on Western Sahara in the Court of Justice of the EU. It is a rather long document (70 p.) that can be difficult to grasp for a non-legal mind. Therefore, we asked Gilles Devers, the Polisario's lawyer, to clarify some points for us.

WSRW: In his opinion, Advocate General Wathelet finds that neither the EU-Morocco Association Agreement nor the EU-Morocco Agreement on the liberalisation of trade in agricultural and fishery products (or, “the 2012 agreement”, as many call it) are applicable to Western Sahara, because Western Sahara remains a non-self-governing territory, despite its annexation by the Kingdom of Morocco. Is that correct? 

Gilles Devers: Absolutely. On this issue, the opinion is crystal-clear. Despite Morocco’s policy of annexation, Western Sahara is not a part of the Moroccan territory. Referring to the very argumentation of the Council and the Commission during the proceedings, the AG underlines that “the European Union and its Member States never recognised that Western Sahara was part of the territory of the Kingdom of Morocco or came under its sovereignty” (point 83). As Western Sahara remains a non-self-governing territory, EU-Morocco agreements are not applicable there: Western Sahara “constitutes a third party in relation to the European Union and the Kingdom of Morocco” (point 105). The consensus is becoming stronger: the Kingdom of Morocco has no sovereignty over Western Sahara. 

WSRW: Could you be more specific? 

Mr. Devers: Since the Kingdom of Spain’s accession to the European Economic Community, the Sahrawi leaders have always opposed the inclusion of Western Sahara in European agreements with the Kingdom of Morocco. After a period of denial, the EU Council and Commission eventually admitted that the EU’s agreements with Morocco did indeed apply to Western Sahara. To justify this application, they created the notion of “de facto administrative power”… a notion that does not correspond to any legal category known under international law. They invented this legal nonsense to justify the unjustifiable.

The opinion of the AG is therefore fully consistent with international law. Today, it is very clear that the Polisario Front has been right from the very beginning. Despite the maneuvers of the Council and the Commission, the findings made by the International Court of Justice in its advisory opinion delivered forty years ago remain as authoritative as ever: Morocco has no sovereignty over Western Sahara. Therefore, none of its agreements with the European Union are applicable there. By depriving Morocco of the economical benefits generated by its illegal occupation of Western Sahara, the opinion of the Advocate General paves the way toward self-determination.

WSRW: But can’t the Council and the Commission continue to argue that Morocco is “de facto administrative power” of Western Sahara? 

Mr. Devers: First, I must say that the manipulation of Hans Corell’s opinion by the Council and the Commission is a shame. Hans Corell, who is a respected international lawyer, would never have written that Morocco is the “de facto administrative power” of Western Sahara. Actually, he protested very explicitly against the misinterpretation of the Council and the Commission. 

Surely, Hans Corell should have clearly said that Morocco was occupying Western Sahara, according to international humanitarian law, and as such has no right over the Sahrawi natural resources. But, in his defense, one might recognize that in 2002, the status of occupied territories such as Western Sahara was less clear than today. There was a lot of debate amongst legal scholars over the law applicable to these territories. Since the International Court of Justice’s 2004 Advisory Opinion on Palestine, there can be no more doubt: international humanitarian law is applicable to the belligerent occupation of Western Sahara. This is confirmed by the adhesion of the Polisario Front to the Geneva Conventions in June 2015. In its legal opinion, the African Union also considers Western Sahara occupied territory. 

Interestingly enough, even though during the pleadings the Council and the Commission heavily relied on their de facto theory, they clearly did not convince the AG. On the contrary, AG Wathelet considers that “the Council does not explain at all how it might be lawfully possible to apply an agreement concluded with a country in a certain territory without recognizing that that country has any legal competence or authority in that territory” (point 84). This is the end of the EU’s “de facto administrative power” excuse. From now on, the EU institutions will have to face reality, namely that, having no sovereign rights over the Sahrawi territory and no international mandate to administer it, Morocco occupies Western Sahara according to international humanitarian law.

WSRW: But if the opinion is so much in favor of Western Sahara, how come that the AG considers that the Polisario Front should be declared inadmissible? 

Mr. Devers: On the issue of admissibility, if I may reformulate a bit your question, one has to distinguish between two points. Firstly, is the Polisario Front a legal person able to bring a case before the European Court of Justice? Secondly, is the Polisario Front, as the representative of the Sahrawi people, concerned by the decision of the Council to conclude an international agreement with the Kingdom of Morocco? 

On the first point, the AG is positive. Once again, he is very clear: “the Polisario Front has the capacity to be a party to proceedings before the EU Courts” (paragraph 143). 

He even goes further than the General Court, and considers that the Polisario Front is a national liberation movement endowed with international legal personality: the “recognition [of the POLISARIO Front] as a national liberation movement by a number of States, as the representative of the people of Western Sahara by the UN General Assembly, its membership in the African Union international organization, the conclusion of agreements with the Islamic Republic of Mauritania and the Kingdom of Morocco and its undertaking to respect the Geneva Conventions of 12 August 1949 on the protection of victims of war, made in accordance with Article 96(3) of the Additional Protocol relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, tend to militate in favor of recognition of the legal personality which international law confers on national liberation movements” (paragraph 146). As the sole representative of the Sahrawi people, the Polisario Front is a National Liberation Movement. 

Let’s hope that the journalists, after reading the AG’s opinion, will stop calling the Polisario Front a separatist group asking for independence from Morocco… As a matter of fact, from the perspective of international law, Western Sahara has always been a separate and independent territory from Morocco. Moreover, under international law, the Polisario Front is a National Liberation Movement, just as much as the Palestine Liberation Organization, the Algerian FLN, or Mandela’s African National Congress, and its purpose is to defend the right to self-determination of the Sahrawi people. 

WSRW: But what about the second point? 

Mr. Devers: To decide on this second aspect, the AG considers that it is first necessary to determine if EU-Morocco agreements are applicable to Western Sahara. Here, we go back to the main finding of the opinion. As Morocco has no sovereignty over Western Sahara, its agreements with the EU are not applicable there.

Since EU-Morocco agreements are not applicable to Western Sahara, they do not apply to the Sahrawi territory. Therefore, the Polisario Front cannot be concerned by EU-Morocco agreements only applicable to the Moroccan territory, just as France would not be concerned by a purely bilateral treaty concluded between Spain and Germany. 

WSRW: But is this not untrue? We know for a fact that all the agreements concluded between the European Union and Morocco have been applied to Western Sahara. No later than this week, a ship carrying tons of fish oil from Western Sahara arrived in France (see here and here, editor’s note) and probably benefited from preferential treatment in accordance with the EU-Morocco trade agreement. 

Mr. Devers: I agree. This part of the opinion can be confusing… During the proceedings, the Council and the Commission recognized that the association agreement and the 2012 agreement have been applied to Western Sahara. They admitted that products originating from Western Sahara actually benefit from the preferential treatment provided by the EU-Morocco association agreement. 

Even though the Commission has corrected its website after the hearings, it is also established that the Commission’s Food and Veterinary Office paid visits to Moroccan producers located in Western Sahara in 2001, 2005 and 2012. The purpose of these visits was to ensure that these Moroccan producers respected EU sanitary rules and therefore that their products were suitable for exportation to the European market under the Association Agreement. 

But the key elements are the lists of approved exporters. According to EU law, an approved exporter is an exporter who, under certain conditions, is allowed to issue certificates of origin. A certificate of origin is required to ensure that goods in a particular shipment are indeed entitled to preferential treatment. In order for the customs authorities of EU member states to ensure that goods are entitled to preferential treatment under a given association agreement, the European Commission publishes lists of approved exporters. Regarding the EU trade deal concluded with Morocco, 140 Moroccan exporters approved under the association agreement are located in Western Sahara… And on these lists, Western Sahara is named according to Moroccan domestic law…(See here, here and here, editor’s note).

Against that background, it is rather artificial to maintain that EU-Morocco agreements do not apply to Sahrawi natural resources because they cannot, by law, be applicable to Western Sahara. 

In reality, economic activities have been taking place in Western Sahara under the umbrella of the Association agreement and the 2012 agreement on a daily basis....The Moroccan Confederation for Agriculture and Rural Development (COMADER), which represents Moroccan farmers, has confirmed it. During the hearings before the ECJ, it even claimed that its members located in Western Sahara were exporting under the association agreement and the 2012 agreement. 

In the eyes of the Polisario Front, the AG totally underestimates the involvement of the EU in Western Sahara. The EU Commission treats Western Sahara and Morocco in the same manner and cooperates with the same Moroccan administration on both sides of the border. The EU’s daily acquiescence to Morocco’s policy of annexation is paramount because it encourages Morocco to claim that the European Union supports its territorial claim over Western Sahara.

We will see if the Court is convinced by the AG’s analysis on this point. 

WSRW: Later in its opinion, the AG considers that the Kingdom of Spain is still the administering power of Western Sahara, despite its decision in 1975 to unilaterally terminate its mandate. This is quite a strong statement indeed. But he infers from this that the Polisario Front would not be the sole representative of the Sahrawi people on the international level. What is your opinion? 

Mr. Devers: On the first part of the reasoning, the AG is obviously right. The United Nations principles are very clear. An administering power is not relieved from its obligations, until the UN General Assembly has adopted a decision that a Non-Self-Governing Territory has attained a full measure of self-government. 

With regard to the Kingdom of Spain, besides Hans Corell’s opinion and the recent opinion of the African Union, judge Castro, who was the Spanish judge during the Advisory Opinion on Western Sahara in the International Court of Justice, clearly stated that: “Once it is established that the status of Western Sahara is that of a non-self-governing territory, Spain cannot recognize the right of another State to claim the territory, nor can it concede the existence of the titles of sovereignty of any State whatsoever, nor agree to arbitration over the sovereignty, nor make an agreement for partition of the territory, nor decide on its joint exploitation, nor attribute sovereignty over it to itself. Spain could not be party to a dispute involving the settlement, directly or indirectly, of any question concerning the sovereignty over the territory under its administration”. 

Therefore, the Kingdom of Spain is still the administering power of Western Sahara.

WSRW: So, what about Spain precluding the Polisario Front from being the sole representative of Western Sahara at the international level?

Mr. Devers: On the second part of the reasoning, I must say that the implications of Spain remaining the administering power of Western Sahara were not really discussed during the proceedings. As you can imagine, Spain (which was intervening to support the Council and the Commission, editor’s note) did not claim before the Court to be the administering power of Western Sahara… This may explain why the reasoning of the AG is less convincing. 

Clearly, the status of Spain, as the administering power of Western Sahara, does not preclude the Polisario from defending the interests of the Sahrawi people before the European Court of Justice. 

First, Spain and Polisario have different mandates that do not overlap. As the administering power of Western Sahara, Spain represents a non self-governing territory, whereas the Polisario Front represents the sovereign people that lives on that territory. 

Moreover, the AG does not take into account the actual context of the case. Even though it is still the administering power of Western Sahara, Spain has continuously failed all its obligations since 1976. Consequently, how could the Sahrawis rely on an administering power that has constantly deceived them for forty years? How could Spain be portrayed as defending the interests of Western Sahara when it intervenes in proceedings to support the Council’s position, which results in the spoliation of the Sahrawi natural resources? 

Moreover, the key role of the Polisario Front is confirmed by the law applicable to the exploitation of natural resources of non-self-governing territories. 

According to Hans Corell’s opinion, and its update by the African Union, the administering power must seek the consent from the representative of the people of the non-self-governing territory in the exploitation of its natural resources. This requirement is the consequence of a very well established principle of international law, the principle of permanent sovereignty over natural resources. As a “basic constituent” of the right to self-determination, this principle provides for the exclusive ownership of non-self-governing peoples over their natural resources. 

In the case of Western Sahara, Spain’s duty, as the administering power of Western Sahara, to consult the Polisario is merely the logical consequence of the Polisario Front’s mission under international law. This consultation by the administering power is required because the Polisario Front represents the Sahrawi people in every aspect of their right to self-determination, including their right to permanent sovereignty over natural resources.

Under international law, as the sole representative of the Sahrawi people, the Polisario Front must have the last say on the exploitation of the Sahrawi natural resources. 

Of course, this implies the right of Polisario to go to court to ensure the respect of these rights.

WSRW: But the AG seems to consider that Polisario might be only able to represent the Sahrawi people in the political process leading to self-determination of Western Sahara and not in its commercial interests? 

Mr. Devers: Once again, I must admit that this distinction between self-determination and commercial interest is a bit puzzling. Politics are so intertwined with economics. Who can draw the line?

In the case of non-self-governing peoples, the principle of permanent sovereignty over natural resources clearly encompasses the commercial exploitation of their natural resources. 

One must bear in mind that the principle of permanent sovereignty appeared in the context of the decolonization. It was developed to protect non-self-governing peoples against the greed of the colonial powers which made profits from exploiting the natural resources of colonial peoples.

Therefore, it is clear that, as the right to self-determination encompasses the principle of permanent sovereignty, the recognition of the Polisario, as the sole representative of the people of Western Sahara for purpose of self-determination, also qualifies it to defend the commercial interests of the Sahrawi people. 

WSRW: But the Association Agreement and the 2012 agreement only deal with exportation, and not exploitation. Does it make a difference? 

Mr. Devers: Very interesting question…During the proceedings, the Council tried to make that argument. But to export natural resources implies first to exploit them. Without this exploitation, there would be nothing to be exported.

In the specific case of Western Sahara, the link between exploitation and exportation is very strong since 95% of production is exclusively dedicated to exportation. Actually, one can say that Sahrawi natural resources are exploited to be exported to foreign markets. 

WSRW: Are there any other examples of National Liberation Movements defending the commercial interests of non-self-governing peoples? 

Mr. Devers: Well, I see at least two examples. When France and the Algerian Front de Libération Nationale negotiated the Evian agreements, substantial parts of the negotiations dealt with the economic and the commercial interests of the Algerian people. It resulted in a broad “déclaration de principes sur la coopération économique et financière”, and a “déclaration de principes sur la coopération pour la mise en valeur des richesses du sous-sol du Sahara”, especially dedicated to the exploitation of the Algerian natural resources. 

The Oslo agreements signed between Israel and the Palestinian Liberation Organization are another good example. For instance, the article 11 of the 1993 Declaration of Principles on Interim Self-Government Arrangements (Oslo I) and its annex III, and the article 24 of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II) deal with economic matters.

On 29 April 1994, the Government of the State of Israel and the “P.L.O., representing the Palestinian people” even concluded a Protocol on Economic Relations, which basically creates a customs union between Israel and Palestine.

Later on, the Palestinian Liberation Organization concluded several free trade treaties, including with an Association Agreement with the European Union, very similar to the one signed with the Kingdom of Morocco.

These examples show that National Liberation Movements are able to defend the commercial interest of non-self-governing people, because it is inherent to the right to self-determination. 

WSRW: Some experts (here and here, editor’s note) say that if the Court of Justice of the EU adopts the AG’s restrictive approach with regard to commercial interests, the Polisario Front will not be able to challenge the fisheries agreement in the other case pending before the European Court of Justice. Is that correct? 

Mr. Devers: I respectfully disagree...The 2013 Protocol to the 2006 Fisheries Partnership Agreement is not a free trade treaty but an agreement that organizes the exploitation of the natural resources of Western Sahara by the EU fishermen. 

On the basis of this agreement with Morocco, EU vessels fish in the Sahrawi waters and exploit directly the fishing resources coming under the permanent sovereignty of the Sahrawi people. Actually, two thirds of the EU vessels allowed to fish under this EU-Morocco agreement operate exclusively in the Sahrawi waters. Last April, the Commission even took the decision to authorize more EU vessels to come and fish in the Sahrawi waters. 

As the sole representative of the Sahrawi people in their right to self-determination, which includes their right to permanent sovereignty over the natural resources of Western Sahara, the Polisario Front is logically concerned by the fishing activities of the EU vessels in the Sahrawi waters. 

We are confident that the ruling of the European Court of Justice will clarify this point. So far, the Polisario Front and the Sahrawi people have every reason to trust the EU judicial system.