The emperor has no clothes; EU-Morocco trade relations, Sahrawi peoples’ self-determination and the Union’s (violation of its) duty of non-recognition

  1. Introduction*

On 29 September 2021 the General Court (GC) of the European Union (EU)  delivered two long-awaited decisions on the Front Polisario v. Council cases adding a new chapter to a decade-long judicial saga on the compatibility of EU-Morocco trade relations with international and Union law.

The disputes arose following the conclusion of several international agreements between EU and Morocco on the fields of reciprocal trade liberalisation, fisheries and the exploitation of land and sea natural resources. While the impugned agreements resemble prima facie the established Union practice regarding its external relations with third countries, their territorial expansion –implicit at first and later explicit- over Western Sahara, a Non-Self-Governing Territory (NSGT) under Moroccan occupation (para 3) raises concerns.

In these two decisions, the GC annulled two Council Decisions approving the conclusion of an Sustainable Fisheries Partnership Agreement  (Case T-279/19) and the amendment of Protocols 1 and 4 of the EU-Morocco Association Agreement (joined Cases T‑344/19 and T‑356/19). À propos of these decisions, which were welcomed by the Front Polisario representative to the EU, in the present post we will examine the potential responsibility of the EU for violations of its international obligations and more specifically its obligations of non-recognition and not rendering aid or assistance to the commission of internationally wrongful acts.

  1. The factual background to the Western Sahara conflict

In 1884, Spain declared Western Sahara as its protectorate. Following the adoption of United Nations (UN) General Assembly (GA) Resolution 1514 and the expansion of the decolonisation movement, Spain as the region’s administering power started being more diligent with its reporting obligations under Article 73 of the United Nations (UN) Charter. After gaining its independence in 1956, Morocco openly contested Spain’s rule over Western Sahara and claimed the existence of ancestral/historical ties with it. In 1963, the region was included in the UN’s list of NSGTs and Spain was requested  to conclude its decolonisation process on the basis of the right to self-determination by holding a referendum in cooperation with other regional stakeholders, including Morocco and Mauritania.

Front Popular para la Liberacion de Saguia al Hamra y Rio de Oro (Front Polisario) emerged in 1973 as the main liberation movement of the region’s indigenous Sahrawi people aiming to achieve independence. In 1979, it was recognised by the UN GA as the representative of the Sahrawi people.

Eventually, in 1974, Spain committed to holding a referendum, a decision to which Morocco agreed with a strong caveat. Morocco held that any referendum could not result in full independence for Western Sahara since its historic ties to the region could justify Western Sahara’s ‘automatic retrocession’ (cf. UN GA Res. 1514, para 6). In 1974, following the proposals made by Morocco and Mauritania, the General Assembly adopted Resolution 3292 (XXIX) and submitted to the International Court of Justice (ICJ) a request for an advisory opinion on whether Western Sahara, at the time of colonisation by Spain, was terra nullius, and on the existence of historical ties between Morocco, Mauritania and Western Sahara. In its Advisory Opinion the Court, despite recognising some margin of exception to self-determination in favour of territorial integrity, it expressly stipulated that Morocco (and Mauritania) had no historical ties to Western Sahara (ICJ, Western Sahara Advisory Opinion, paras 161-162). Despite the ICJ’s clear pronouncement, Morocco initiated Operation “Green March” and systematically transferred unarmed individuals to Western Sahara in order to ensure ‘national unity and territorial integrity’.

In 1975, Spain, Morocco and Mauritania concluded the Madrid Declaration, accompanied by a secret pact securing trade privileges, which provided for transfer of territorial control over Western Sahara following Spain’s withdrawal. In 1976, Morocco and Mauritania invaded Western Sahara. The same year Spain announced its official withdrawal from the region and the relinquishment of its reporting and administering responsibilities. It must be noted though -and this is crucial for the following analysis- that up to now Spain is registered as the de jure administrative power for Western Sahara by the UN. Mauritania eventually withdrew its forces in 1979 and concluded a peace agreement with Front Polisario. Morocco annexed the region vacated by Mauritania and maintains its occupation regime until today violating Sahrawi people’s right to self-determination.

To this day, Western Sahara remains listed as a NSGT by the UN with Spain being its administering power. This shows that Morocco’s claims of sovereignty over Western Sahara have not been accepted by the international community.

  1. The EU-Morocco trade relations and their expansion to Western Sahara

a. EU-Morocco agreements and their territorial application

The EU is Morocco’s largest trade partner amounting to 56% of its trade in goods. It is noteworthy that in 2008 Morocco became the first country in the Southern Mediterranean Sea to receive ‘advanced status’ of cooperation with the EU. EU-Morocco international relations are based on the EU-Morocco Association Agreement which primarily aimed at establishing a free trade zone and enhancing reciprocal trade between the parties (Article 16). By virtue of this Agreement, EU and Morocco have subsequently concluded agreements governing various issues, including a Fisheries Partnership Agreement (FPA) in 2006 and its 2013 Protocol, a Liberalisation Agreement providing for reciprocal liberalisation measures on agricultural and fisheries products and an Aviation Agreement.

The agreements’ texts do not shed light on the matter of their territorial scope. Article 94 of the Association Agreement (as it stood prior to the 2019 amendments of Protocols 1 and 4 analysed below) referred generally to the ‘territory of Morocco’, while the Liberalisation Agreement which is crucial for EU-Morocco trade relations included no pertinent clause. On the other hand, the 2006 FPA provides that its application extends to ‘waters falling within the sovereignty or jurisdiction of Morocco’ (Article 2(a), our emphasis). Both the FPA (Appendix 4) and its 2013 Protocol (Appendix 4, Datasheets 4 and 6) contrary the indication of other geographical limitations, remain ambiguous when it comes to their application to Western Sahara (p. 31-36). Despite this constructive silence in the treaty texts, the EU’s subsequent practice (pp. 9-10) leaves no room for any misinterpretation that these agreements have been de facto extended to Western Sahara. This sub silentio expansion is verified for example by the fact that pursuant to the Liberalisation Agreement Moroccan geographical indications have been attributed to Western Saharan products and EU vessels have engaged in fishing activities in waters adjacent to Western Sahara (European Commission, Reply to Oral Question H-0079/09). The issue of the compatibility of the application of the FPA to the Western Sahara gained prominence during the negotiations for the 2013 Protocol. Following the Commission’s response that the Protocol would apply to Western Saharan waters, Sweden and Denmark rejected the proposed agreements expressing concerns over possible violations of the Sahrawi right to self-determination, while Finland, the Netherlands and the UK abstained.

b. The judicial challenges of the abovementioned agreements

All the abovementioned treaties have been reviewed by the Court of Justice of the European Union. Front Polisario claimed before the GC that the Liberalisation Agreement violated the Sahrawi people’s right to self-determination under international and Union law since it failed to distinguish between products originating from Morocco and Western Sahara (General Court, Case T-512/12, para 115). The GC by reframing Front Polisario’s claims embarked upon an attempt to ascertain whether any rule precluded the EU as an IO from entering into treaties extending over a disputed area and if Union institutions enjoyed any discretion (T-512/12, para 117). Without much elaboration, the GC concluded that no international rule prohibited the conclusion of such treaties (T-512/12, para 215) but eventually annulled the relevant Council Decision. It put forward that the Council failed to verify whether the agreement’s effects would be detrimental to the Sahrawi people and if it would infringe fundamental rights as prescribed in the EU Charter of Fundamental Rights (T-512/12, para 223). According to the GC, the Council could not rely to a great extent on Morocco’s will to ensure that the region’s resources would be used for the local population’s benefit (T-512/12, para 241).

The decision was appealed before the Court of Justice which found that the GC had erred in law by failing to take into account Article 31(3)(c) VCLT (CJEU, Case C-104/16 P, para 86) when determining the Liberalisation Agreement’s territorial application. The Court of Justice determined three rules of international law applicable in the present case: (a) the right to self-determination according to which Western Sahara maintained a ‘separate and distinct’ status from Morocco  (Case C-104/16 P, paras 90-93); (b) Article 29 VCLT on the territorial scope of treaties (Case C-104/16 P, paras 94-97); and (c) the pacta tertiis rule (rule of treaty relativity) enshrined in Article 34 VCLT (Case C-104/16 P, para 86), which in combination with the right to self-determination resulted in the inapplicability of the Agreement in Western Sahara which was concerned a third party to it. The Court reiterated its reasoning in Case C-266/16 (Western Sahara Campaign UK) concerning the application of the FPA and its 2013 Protocol to the waters of Western Sahara. The treaties were considered as non-applicable in Western Sahara because the region did not form part of the Moroccan territory (Case C-266/16, paras 62-64 and 69).

These judgments have been fiercely criticised in international literature for their instrumentalization and artificial application of the international law on treaty interpretation (see, Odermatt (2017),  p.736; Kassioti (2019) p. 14; Cannizzaro (2017) pp. 37-40), an issue that surpasses the present analysis. The fact that the CJEU failed to appropriately address two important issues on the status of Western Sahara is of relevance here. First, the GC treated Western Sahara as a disputed region (Case T-512/12, paras 117, 141-142, 165 etc.). As explained above, no disputing claims exist concerning the region which until today remains occupied by Morocco. Second, the CJEU aiming to strike a sensitive political balance between the Union’s trade relations and its image as a global human rights protection actor (pp. 917-918) did not refer to the Union’s duty of non-recognition whatsoever. This matter will be analysed below.

c. The new EU-Morocco treaties and their challenge before the GC

Pursuant to the fact that the CJEU identified no rule of international law prohibiting the conclusion of treaties regarding Western Sahara, EU and Morocco agreed to amend Protocols 1 and 4 of the Association Agreement and the FPA in order to explicitly include products originating from and fishing activities in the waters of Western Sahara. In both cases, the Council expressed the view that these agreements did not imply any recognition of Moroccan claims over Western Sahara. At the same time, the Commission claimed that after extensive consultations with all relevant stakeholders (Commission Staff Working Document on Western Sahara (2018), pp. 28-31 and 34) it secured the Western Sahara people’s consent regarding the use of their natural resources. However, Front Polisario as the officially recognised Sahrawi people representative disagreed with these consultations (Commission Staff Working Document, pp. 31-32), while 93 out of the 113 listed by the Commission civil society stakeholders (p. 2) stated that the Commission had not consulted with them on the matter.

Front Polisario again challenged the relevant Council Decisions before the GC. The GC concluded that the consultations conducted by the Commission were not sufficient because the ‘local populations’ consulted lack the essential political identity of ‘people’ whose consent is sought (GC, Case T-279/19, para 337; GC, Joined Cases T-344/19 and T-356/19, para 329). However, even in this case the GC dealt with consent as a pre-requisite for the application of treaties to Western Sahara as third party thus upholding the previously established jurisprudence. The Council has already appealed the decision of the GC but for the first time in the Western Sahara saga, a Member State, namely Sweden, opposed the decision (p. 14).

  1. International Organisation (IO) and the obligation of non-recognition

According to Article 42(2) of the ILC Draft Articles on the Responsibility of International Organisations (DARIO), which reflects Article 41(2) of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ASR), IOs are under the obligation not to recognise as lawful situations deriving from the breach of a peremptory norm of international law.

The obligation of non-recognition is premised on the maxim that no legal rights can derive from unlawful conduct (ex injuria jus non oritur, para 46). Taking into consideration the horizontal and ‘essentially bilateral minded’ function of the international community (p. 38, para 97), non-recognition has been characterised a precondition for the existence of international law (p. 34). More precisely, the lack of effective international enforcement mechanisms might result in the validation of unlawful situations due to the lack of timely and appropriate reaction (cf. ICJ, East Timor (Portugal v. Australia) [1995] – Verbatim Record 1995/5, p. 8). This is quite common in instances of forcible territorial annexations. Against this background, the obligation of non-recognition aims to prevent unlawful factual situations from producing legally binding situations in international law (ICJ, Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion [2004], para 121).

a. Non-recognition and the Sahrawi right to self-determination

The obligation of non-recognition, which reflects international customary law (p. 72; ASR, Commentary to draft Article 53, para 2) consists of thee interconnected elements. Primo, in principle every peremptory norm of international law can generate the obligation of non-recognition. Secundo, Article 42 constrains this principle by providing that only severe breaches of jus cogens rules are subjected to non-recognition. Tertio, the obligation of non-recognition pertains to the ‘situations’ created by the breach of a specific jus cogens norm (ASR, Commentary to Article 41, paras 5-6) i.e. to the acquisition of legal claims or rights by the violating State (fn 1).[1] Below, we will delve into the applicability of these elements in the case of the Sahrawi struggle to self-determination. From the very beginning, it must be pointed out that all three elements are applicable in the case at hand.

First, the peremptory character of the right to self-determination, which constitutes a central tenet of contemporary international law, has been verified on multiple occasions (see ASR, Commentary to Article 26, para 5; ICJ, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 [2019], Separate Opinions of Judges Sebutinde (paras 30-43), Robinson (paras 76-77) and Cançado Trindade (paras 120-128)). Self-determination incorporates the right of people to freely determine their political status and pursue their economic, social and cultural development as stipulated by common Article 1(2) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Additionally, the right to self-determination encompasses the principle of permanent sovereignty of people over their natural resources (see, ICJ, East Timor (Portugal v. Australia) [1995], Diss. Opinion of Judge Weeramantry, p. 221), namely the ability of people to freely use and/or dispose of their natural wealth for their own benefit (para 4(e)). From the above, it follows that the ‘essential feature’ of self-determination lies to the ability of peoples to freely express their will concerning their territory and future (Western Sahara Advisory Opinion, paras 58-95).

At the same time, States are under the corresponding obligation to respect the right of people to self-determination. Thus, any State conduct denying or depriving peoples’ right to self-determination amounts to a serious breach of their obligations under international law (ICJ, Namibia Advisory Opinion [1971], pp. 29-32). A fortiori, forcible territorial acquisitions, such as the belligerent occupation and annexation of Western Sahara by Morocco, are categorically perceived as blatant violations of people’s ability to exercise the constituent aspects of their self-determination (ICJ, Wall Advisory Opinion, para 87; ASR, Commentary to Article 40, para 8).

Lastly, as mentioned earlier, the obligation of non-recognition aims to prevent situations deriving from illegal conduct from being legitimised. In fact, any effort by an occupying power to effectively exercise full sovereignty over a NSGT unequivocally amounts to a legal claim resulting from a violation of jus cogens rules. This assertion is reinforced by the fact that under international law NSGTs enjoy separate legal personality, especially in their quest for self-determination. In the Island of Palmas Arbitral Award (pp. 829 and 838), Judge Huber highlighted the internal and inextricable link between territory and exercise of sovereignty by famously stating that such a link manifests in ‘the exclusive competence of the State in regard to its own territory’. The ability of States to enter into treaties (p. 192, para 4), is deemed one of the main manifestations of its competence over a particular territory (PCIJ, S.S. “Wimbledon” [1923], p. 25). Therefore, a claim by an occupying power of general treaty-making capacity with respect to a NSGT, as the one formulated by Morocco regarding Western Sahara, can be considered to be an -ad minimum implicit- legal claim over the territory concerned. Consequently, the Moroccan claims over Western Sahara contravene the Sahrawi people’s right to self-determination, thus triggering the obligation of non-recognition. At the same time, the appropriation of the Western Saharan natural resources by Morocco in disrespect of the people’s right to self determination can be considered as an illegal situation, dependent on a strong caveat as we will demonstrate in the following section.

b. Delimiting the content of the obligation of non-recognition

While the obligation of non-recognition in situations like the belligerent occupation and annexation of Western Sahara can be considered well-established, its exact contours remain rather contested (p. 70, Spain para 4). In his seminal Separate Opinion in the Wall Advisory Opinion, Judge Kooijmans categorically postulated that in reality non-recognition amounts ‘to an obligation without real substance(paras 43-44, our emphasis).

Despite the scholarly interest concerning the obligation of non-recognition’s exact content, some key issues appear to be clear. According to the ILC Commentary on Article 41 ASR (para 5), the obligation of non-recognition extends beyond acts of explicit recognition and includes also any conduct resulting in implicit recognition of situations created pursuant to a breach of jus cogens rules. The ILC commentary in fact echoes the ICJ position in its Namibia Advisory Opinion and was later reaffirmed in the Wall Advisory Opinion (para 159). More specifically, in the Namibia Advisory Opinion, the ICJ enumerated various acts that could amount to implicit recognition of unlawful territorial claims over an occupied NSGT. The duties most pertinent to our analysis require States and mutatis mutandis IOs: (a) not to entertain treaty relations concerning the unlawfully annexed region with the occupying power and (b) to abstain from entering into economic or other -legal or factual- relationship which might further impair the enjoyment of the right to self-determination of the territory’s people (Namibia Advisory Opinion, paras 122-124).

In the case at hand, as explained above, Morocco’s effort to conclude treaties that either explicitly or implicitly extend to Western Sahara and its natural resources constitutes an unequivocal legal claim of sovereignty over the territory. Thus, any IO entering into international agreements with Morocco which might extend to Western Sahara at least implicitly recognise the abovementioned territorial claim in violation of its obligations under international law as encapsulated in Article 42(2) DARIO.

And while the duty to refrain from entering into treaties regarding territories whose people are constantly denied their right to self-determination can be considered well-entrenched in international law, the prohibition of entertaining economic or trade relations concerning such areas does not enjoy the same status. A matter which remains a bone of contention and has important practical implications for the issue at hand is whether product import from or export to occupied territories (p. 16), such as Western Sahara and the establishment of preferential trade frameworks for such products or regions amounts to implicit recognition of an unlawful situation. On the one hand, Moerenhout claims that trade exchanges of this kind need to be considered as implicit recognition of the unlawful situation created. According to this theory, since the import of goods requires at least an official State act, namely the establishment of policy and regulatory frameworks pertaining to the specific products, such conduct inevitably leads to an implicit recognition of the situation created in the territory. On the other hand, some scholars, such as Kontorovich (pp. 634-637), consider that there is not prohibition in international law for the establishment of economic relations of private nature, including preferential trade relations, nor that such arrangements can be understood as  implicit recognition of an illegal territorial situation.

Regardless of the economic character of the treaties or the aim they pursue (e.g. reciprocal trade regimes) what is important to bear in mind is that the ICJ itself in its Namibia Advisory Opinion afforded a degree of flexibility concerning the prohibition of entering into treaties in case of jus cogens violations. Establishing the famous Namibia exception, the Court pronounced that international treaties regulating minor or basis administrative matters, e.g. issuing of birth or marriage certificates, as well as treaties whose primary aim is to benefit the local people are excluded from the ambit of the prohibition of entering into treaties as an expression of the obligation of non-recognition (ICJ, Namibia Advisory Opinion, para 125; ECtHR, Demopoulos v. Turkey (2001) paras 93-98). Despite its pronouncement on the matter, the Court did not elaborate on the exact specificities that would constitute an international agreement beneficial for the local populations. As Crawford eloquently notes (para 91), determining the beneficial nature of an international treaty cannot be an in abstracto exercise but it is a matter ‘highly fact-dependent’. An important pointer towards the beneficial nature of such agreements is whether the people concerned, or their recognised representatives, have been consulted and consented to their conclusion.

Taking into consideration the abovementioned analysis, we partially concur with Moerehout’s theory on the matter. Indeed, trade relations cannot be construed as purely economic affairs, especially since their regulation constitutes an important aspect of an IO’s external relations and therefore the conclusion of such agreements could indeed imply recognition. However, according to our view, some legitimate exceptions can be temporarily tolerated; more specifically, when an import or export scheme is construed based on the consent of the populations concerned, incorporates specific labelling fraud distinguishing products originating from the occupant’s sovereign territory and the occupied territory and includes robust monitoring mechanisms might indeed secure benefits for the subsistence and development of the people concerned.

c. The appraisal of the EU-Morocco trade relations in view of its obligation of non-recognition

Reviewing the Union’s conduct as described in Part 3 it becomes evident that EU-Morocco trade agreements are in clear violation of its secondary obligation of non-recognition of situations created from the violation of a jus cogens rule. The de facto extension of the EU-Morocco treaties to Western Sahara (CJEU, Case C-266/12, Opinion of Advocate General Wathelet, paras 60-75) is in clear violation of the Union’s secondary obligation to refrain from acts that could constitute implicit recognition of the situation established following the occupation of the region by Morocco (AG Wathelet Opinion, paras 187-213). As explained above, any claim of treaty-making capacity over a territory at least implicitly is a legal claim of sovereignty over it. The EU by entering the specific treaties with Morocco implicitly recognises its territorial claim and contributes to the verification of a situation violating the Sahrawi right to self-determination. This reality is highlighted when the EU practice is juxtaposed to that of other third parties regarding their trade agreements with Morocco. For instance, according to Norway and Switzerland, the EFTA-Morocco Free Trade Agreement is not applicable to Western Sahara and the same is true for the USA-Morocco Free Trade Agreement.

At the same time, the EU’s practice to consider Morocco as the ‘de facto administering power’ of Western Sahara in order to circumvent the prohibition of Morocco concluding treaties (paras 17-18) on behalf of the Sahrawi people is -at least- problematic. First, the legal concept of ‘de facto administering power’ does not exist as such in international law (p. 11). Besides that, administering powers are usually/solely recognised by the UN and it is not a status that can be unilaterally claimed by a State for itself (UN Charter, Articles 73-74). Lastly, it should be mentioned that the reliance of the European Parliament Legal Service to the UN Legal Counsel Hans Corell Opinion (2002) in order to justify this concept is incomprehensive. Corell in rather unequivocal terms explained that Morocco could not act in any administering capacity concerning Western Sahara (Corell Opinion, paras 7-8) a position he later reiterated in more express terms.

A fortiori, the recent EU-Morocco practice of concluding treaties that explicitly include Western Sahara in their territorial scope is a direct violation of the obligation of non-recognition. One cannot but only think that the CJEU acted as the instigator of such a step when it did not address the invalidity of the Union’s trade treaties with Morocco on the basis of the obligation of non-recognition.

Finally, assessed from the perspective of the potential application of the Namibia exception the EU concluded treaties fail to ensure that trade relations concerning Western Sahara and the exploitation of the region’s natural resources operate to the benefit of the Sahrawi people. The GC affirmed that the Commission had failed to ensure the consent of the Sahrawi people and that, in any event, the consultations it conducted did not specifically focus on the benefits for the Sahrawis (p. 316), but referred to all ‘relevant populations’ (Commission Staff Working Document, p. 9) including the (illegally) situated Moroccan nationals, which cannot be considered as local population under the Namibia exception. Lastly, the fact that no robust supervisory mechanism has been established in order to ensure the proper implementation of the treaty regimes has already resulted in rising concerns of Western Saharan products being mislabelled as Moroccan with the EU’s tolerance.

  1. Beyond non-recognition: does the EU aid the commitment of internationally wrongful acts in Western Sahara?

The issue of Sahrawi people’s consent regarding the conclusion of treaties for the exploitation of their natural resources might give rise to EU’s responsibility for assisting acts violating international humanitarian/occupation law. According to the usufruct principle under international humanitarian law, which bears resemblance to the Namibia exception, the force occupying a territory can only make use but not claim ownership over its natural resources (p. 24). This creates the corresponding obligation that this use of natural resources is to be made without detriment to their maintenance and with respect to the wishes of the region’s people (para 64). From this it becomes obvious that any international agreement concluded by an occupying force in regard to the occupied territory is premised on its de facto capacity and not its entitlement as the territory’s sovereign. However, as already shown, the EU-Morocco agreements make no such distinction or clarification concerning the capacity of Morocco to conclude treaties extending to Western Sahara.

The EU’s failure to secure the Sahrawi consent prior to the conclusion of the contested agreements could potentially trigger its responsibility under Article 14 DARIO. The Article provides that an IO might be held responsible if it aids the commission of unlawful international acts (a) with knowledge of their illegal character and (b) in case such conduct would be unlawful if perpetrated by the IO itself. Nevertheless, the conditions for the invocation of this Article are extremely stringent. As explained in our previous EURIS Observatory post, the threshold of knowledge required to invoke an IO’s responsibility under Article 14 DARIO is rather high, because the impugned IO needs not only to know but to actively intend to facilitate the violations committed. Reviewing the official EU documentation prior to the conclusion of the most recent treaties with Morocco and especially the enumeration of their potential (indirect) benefits for Sahrawis, it is difficult to conclude that the Union directly aimed to facilitate any violation of international law. However, it becomes evident from the same reading that the EU chose to overlook the well documented human rights violations perpetrated by Morocco in Western Sahara in favour of establishing trade agreements. By accepting a de lege ferenda lower standard of an IO’s expected awareness for the potential assistance to unlawful conduct (cf. ECtHR, El-Masri v [then officially named as] “the former Yugoslav Republic of Macedonia”, para 239) it would be easier to establish the Union’s responsibility taking into consideration the extensive public references of violations perpetrated against Sahrawi permanent sovereignty over the natural resources.

  1. Conclusion

This analysis attempted to highlight the inconsistencies of EU-Morocco trade relations with the EU’s obligation not to recognise as lawful situations created by violations of peremptory norms of international law. The Sahrawi people’s right to self-determination constitutes such a norm and the most recent EU practice can be characterised at least worrisome for two reasons. First, the practice of the EU to equate the recognition of Moroccan territorial claims only with corresponding explicit pronouncements might result in the potential regression of international standards and disregards the judicial and scholar development achieved towards the prohibition of implicit recognition as well.

Secondly, the Union’s stance when examining whether its trade agreements would benefit the local people is puzzling. As seen in the most recent case, the question of benefits is examined by a purely economic perception and the need for respect of fundamental human rights (including self-determination) is dangerously underplayed. The fact that despite claiming to be a leading global actor concerning the protection of human rights the EU does not consider systematic human rights violations as a serious detriment for the Sahrawi people leaves us perplexed.

[1] (fn 1) M. Dawidowicz, ‘The Obligation of Non-Recognition of an Unlawful Situation’ in J. Crawford, A. Pellet and S. Ollenson (eds), The Law of International Responsibility (OUP 2010) 677.

Author: Christos Zois

* We would like to thank Dr. Nicholas A. Ioannides, Lecturer (Hellenic Open University) and Adjunct Lecturer (University of Nicosia), for his valuable comments to the post’s drafting process. Any mistakes remain the author’s.

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