1. Introduction
What rules apply to the use of natural resources in non-self-governing and in occupied territories, respectively, and is there really a difference between these regimes? These questions were the subject of two recent cases before the Court of Justice of the European Union (CJEU), which was confronted with the issue of the status of Western Sahara, the powers of Morocco over the territory (if any), and whether third parties (including the EU) could enter into contracts with Morocco that apply to that territory. The cases concerned a web of bilateral agreements between the EU and Morocco (see below, Section 2.3), none of which specifies that Western Sahara is covered, although they had been applied as if it was.
In the first case, Frente Polisario (the liberation front for the people of Western Sahara) asked the Court to annul a liberalisation agreement on trade between the EU and Morocco in so far as it covered occupied Western Sahara. Partly echoing a legal opinion by former Legal Counsel of the United Nations, Hans Corell, the General Court of the CJEU (at first instance) annulled the agreement because the EU had not ascertained that ‘the production of goods for export is not conducted to the detriment of the population of the territory concerned, or entails infringements of fundamental rights’.Footnote 1 In the second case, the High Court of Justice of England and Wales made a reference for a preliminary ruling to the CJEU.Footnote 2 The High Court asked, inter alia, whether a Fisheries Partnership Agreement between the EU and Morocco is ‘valid, having regard to … the extent to which the … Agreement was concluded for the benefit of the Saharawi people [of Western Sahara], on their behalf, in accordance with their wishes and/or in consultation with their recognised representatives’.
The Court of Justice (the second and final instance) overturned the 2015 judgment of the General Court in the first case and rejected Polisario's application on the ground that the agreements did not cover Western Sahara.Footnote 3 In the second judgment, in 2018, it ruled, on the same grounds, that the challenged fisheries agreement is not invalid.Footnote 4 The Court found that Western Sahara is a non-self-governing territory, which is not covered by Moroccan sovereignty and therefore does not fall within the treaties’ designation ‘Morocco’. Although the judgments explicitly dealt with obligations of third parties, such as the EU, I will focus here on what they say about the obligations of administering and occupying states.
The law of belligerent occupation was born during the second half of the nineteenth century as a way to manage affairs between civilised nations in a jus publicum europeanum where military victory was becoming discredited as a sufficient justification for rule.Footnote 5 The purpose of this regulation was to distinguish between occupation, as a termporary status, and conquest.Footnote 6 The original recognised stakeholders of the law of occupation – as it came to be codified in the Hague Regulations annexed to the Fourth Hague Convention of 1907Footnote 7 – were the occupying power and the sovereign. Over time – and, in particular, after the adoption of the Fourth Geneva Convention in 1949Footnote 8 – the interests of the inhabitants of the occupied territory came to be acknowledged. However, it is important to note that those interests are the individual (though often parallel) interests of those inhabitants, not their collective, political interests. Since the creation of the United Nations (UN), the principle of self-determination has developed into a legal norm, challenging the title and right of colonial powers to their overseas acquisitions, often acquired through peaceful occupation of terra nullius. According to some commentators, this principle has also come to suggest that the collective will of the occupied population should be given increasing importance (see below).
These questions on occupation and self-determination lead to another, more basic, question: what is the factual basis for the authority to rule over people and economic resources? If the traditional law of occupation suggested that it was the fact of effective control, invocations of the law of self-determination suggest that legitimate authority is based on another fact: the will of the people.
I will first present the Western Sahara issue from an international law perspective. Since the purpose of this article is not to analyse that situation per se, I will give only as much of a background as is necessary to understand the cases. Thereafter, I will present the two cases. Lastly, I will offer my reflections on what they might say about international law. The judgments by the CJEU, in particular that from 2018, are significant also from an EU law perspective, but that is not the focus of this article.
2. International Law and Western Sahara
2.1. Western Sahara
In 1963 the Spanish colony of Western Sahara was listed as a non-self-governing territory (NSGT) by the UN.Footnote 9 Three years later, the General Assembly urged Spain to organise a referendum on the territory's right to exercise its right to self-determination,Footnote 10 to which Spain agreed in 1974, but never carried out. The UN General Assembly, in the same year, asked the International Court of Justice (ICJ) for an advisory opinion on the pre-colonial status of Western Sahara.Footnote 11 The resolution had been supported by Morocco, which had hoped to find a basis for its claim to sovereignty. However, while the ICJ found that there had been pre-colonial ties between the territory of Western Sahara and Morocco, these ties were not ‘of such a nature as might affect the application of … the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory’.Footnote 12 Hence, by implication, the Sahrawis had the right to form an independent state, if they so wished.
Shortly thereafter, on 6 November 1975, King Hassan II of Morocco ordered the ‘Green March’ of civilians into Western Sahara, accompanied by military action. On the same day, the UN Security Council, in Resolution 380, called upon Morocco ‘immediately to withdraw … all the participants in the march’.Footnote 13 On 14 November, under military pressure, Spain agreed to cede administration of the territory to Morocco and Mauritania (which renounced its claims in 1979). On 26 February 1976, Spain notified the UN Secretary-General that it was withdrawing and that it considered itself free from any responsibility for the territory. Morocco annexed Western Sahara in two steps in 1976 and 1979. Armed conflict ensued between Morocco and the Sahrawi liberation front, Polisario, and the latter became recognised by the UN as the legitimate international legal representative of the people of Western Sahara for the purpose of negotiations about the future of Western Sahara.Footnote 14
In 1991, following UN-led negotiations, a settlement plan – endorsed by the UN Security Council in Resolutions 658 and 690 – was signed.Footnote 15 Under that plan, a referendum on independence was to be held. Mainly because of a lack of cooperation by Morocco (according to most observers),Footnote 16 the plan was never implemented, and a few years later Morocco declared that independence for Western Sahara was no longer an option.Footnote 17 A very fledgling peace process between Morocco and Polisario is still going on under UN aegis for the purpose of achieving ‘a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara’.Footnote 18
No state has recognised Moroccan sovereignty over Western Sahara, but non-recognition has been less consistent than in some other comparable conflicts, like the Middle East or Crimea.Footnote 19 Under the name of the Sahrawi Arab Democratic Republic (SADR) (linked to Polisario), Western Sahara is a member of the African Union. A very large part of the Sahrawi population fled to refugee camps in Algeria, while Moroccan settlers have moved in, investors have been allocated land, concessions have been granted and new infrastructure has been built for the needs of the newcomers and their exploitation of phosphates, fish and other natural resources.Footnote 20
2.2. International Law: Occupation, Annexation, Non-Self-Governing Territories
As mentioned above, Western Sahara is included in the UN's list of NSGTs.Footnote 21 For such territories, the principle of self-determination and the law relating to NSGTs apply. Under modern international law, it is a violation of the principle of self-determination to keep such territories under colonial or ‘alien’ control.Footnote 22 Common Article 1 of the two 1966 UN human rights covenantsFootnote 23 provides that ‘[a]ll peoples have the right of self-determination’ including to ‘freely determine their political status and freely pursue their economic, social and cultural development’. The Friendly Relations Declaration reiterates this and adds that ‘[t]he territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the state administering it’.Footnote 24 Hence, such a territory is not a part of the state that administers it.Footnote 25
A colonial power is generally referred to as the ‘administering power’, and such a power has the responsibility to assist the people in the colony to reach full self-determination, which usually means independence.Footnote 26 It is slightly controversial whether Spain is still the de jure administering power over Western Sahara (although I think it is),Footnote 27 but for the purpose of this discussion it is not necessary to determine that issue. What is relevant here is that Morocco has not claimed to have taken over that role, and it has not been recognised by anyone to have done so.
It is clear that Western Sahara was occupied in 1975 against the will of the administering power, Spain,Footnote 28 and certainly against the will of the people concerned.Footnote 29 The Madrid agreement of 14 November 1975 did not change that, because it was concluded under military coercion and because Spain did not have the right to cede the territory to another state but was under an obligation to ensure the self-determination of the people of that territory.Footnote 30 The Friendly Relations Declaration states that ‘[t]he territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force’ and ‘[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal’.Footnote 31 An illegally annexed territory is, for the purpose of international law, still occupied.Footnote 32 The status of Western Sahara is therefore that of occupied territory, as concluded by the UN General Assembly, which in 1979 and 1980 urged Morocco to terminate the occupation.Footnote 33 It is therefore logical that the prevailing view among international lawyers is that Western Sahara is not a part of Morocco and that the annexation was without effect, and most also find the territory to be occupied.Footnote 34
International humanitarian law (IHL) limits the authority of an occupying power and balances between the interests of the occupying power, the ousted sovereign and the civilian population. Occupation is supposed to be a temporary affair.Footnote 35 Article 43 of the Hague Regulations 1907 provides that ‘the occupant … shall … unless absolutely prevented, [respect] the laws in force in the country’.Footnote 36 This conservationist preference was modified a little in 1949 through Article 64(3) of the Fourth Geneva Convention. Hence, an occupying power should, as a rule, respect the laws of the occupied territory, subject to exceptions necessary for the security of the occupant and for public order and civil life, as well as measures necessary to respect other provisions of IHL and human rights (see below).Footnote 37 For all types of status – occupation, annexation, non-self-governing – human rights apply (as always),Footnote 38 even though the precise relationship between human rights law and the law of occupation is not settled.Footnote 39
A particularly debated question for both non-self-governing and occupied territories is the use of natural resources. Under the law of self-determination, a people has a right to permanent sovereignty over its natural resources and the right to ‘freely dispose of their natural wealth and resources’, as provided in Article 1(2) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The rules governing the administration of non-self-governing territories, including Article 73 of the UN Charter, point in the same direction. This was developed in 2002 in a legal opinion by the then UN Legal Counsel, Hans Corell.Footnote 40 The opinion, which will be discussed below, concluded, with regard to oil exploration in the waters outside Western Sahara, that if ‘activities were to proceed in disregard of the interests and wishes of the people of the occupied territory, they would be in violation of the international law principles applicable to mineral resource activities in Non-Self-Governing Territories’.Footnote 41
Under the law of occupation, an occupying power cannot use natural resources arbitrarily for its own purposes.Footnote 42 Nevertheless, it has the limited right of usufruct to such resources under Article 55 of the Hague Regulations.Footnote 43 Further, as mentioned, an occupying power has a responsibility to uphold public order and civil life and to care for the civilian population.Footnote 44 This means that an occupying power must provide basic public goods to the population of the occupied territory, which means that there must be income to pay for these goods. Consequently, the occupying power may use the resources of the occupied territory, but only if that benefits the people of that territory or covers other legitimate costs of the occupation.Footnote 45
Hence, as will be discussed further below, there are similarities between the law relating to NSGTs and the law of occupation, in that the force in power cannot use natural resources for its own good; it must consider the interests of the people under its command, and possibly also their wishes.
The applicable primary rules therefore do not seem to be employed here. However, since the four judgments concern the acts of a third party (the EU), its role must be considered briefly to set the background to the cases. In a situation of illegality, third states have a number of duties.Footnote 46 They shall not recognise an illegal annexation and shall not assist in the continued occupation and annexation, and they should cooperate to bring an end to the illegal situation.Footnote 47 It is therefore illegal to enter into an agreement with an occupying power if that agreement explicitly or implicitly recognises the annexation of the occupied territory or if it otherwise assists in upholding an illegal situation.Footnote 48 Nevertheless, it is not a given that non-recognition should affect all decisions made by the relevant illegal authorities. In its seminal advisory opinion on Namibia, the ICJ stated that ‘the non-recognition of South Africa's administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation’.Footnote 49
2.3. EU-Morocco Relations
The EU and Morocco have very close ties, which are based on an Association Agreement, in force since 2000. In 2008 Morocco became the first country in the southern Mediterranean region to be granted so-called ‘advanced status’, marking a new phase of ‘privileged relations’.Footnote 50 In addition to the Association Agreement and a 2012 agreement on the liberalisation of trade in agriculture and fisheries products (the liberalisation agreement), there is also a Fisheries Partnership Agreement (FPA). The FPA entered into force in 2007, but the implementing protocol to the FPA expired in February 2011. A new Protocol was negotiated and adopted by a divided EU Council of ministers in 2011,Footnote 51 but was rejected by the European Parliament, partly as a result of the controversy over the alleged reach of the agreement into Western Sahara. The European Commission then renegotiated the Protocol, which was adopted by the Council and Parliament in 2013.
Unfortunately, the relevant changes to the Protocol compared with the 2011 version were cosmetic, at best, and did not cure the problem related to the effect on Western Sahara (see below).Footnote 52 While the FPA does not say so explicitly, it was intended to cover, and has indeed been applied to, the waters outside Western Sahara, which provide the major part of the total fisheries allocated to the EU.Footnote 53 The same seems to apply, at least to some extent, to the other economic agreements between the EU and Morocco. Furthermore, there is no indication that the agreements are for the benefit of the people of Western Sahara or in accordance with their wishes,Footnote 54 as will be discussed below. None of these documents mentions that Western Sahara is being occupied and illegally annexed. In fact, as stated above, the territory is not mentioned explicitly at all.Footnote 55
3. The Cases
As indicated, the ever closer relations between the EU and Morocco are highly dubious in so far as they relate to Western Sahara. In this section I will discuss how the four judgments in the two cases deal with international law questions relating to the use of natural resources. I will first present the Polisario and the Western Sahara Campaign cases, as they were dealt with by the General Court (the first instance of the CJEU) and the High Court of England and Wales, respectively, and then present their treatment at second instance, the Court of Justice. I will not summarise the views of the Advocate General (the legal adviser to the Court), but his views will be referred to later. Before that, however, it is necessary to discuss a legal opinion that played a great role in the proceedings.
3.1. An Opinion by the UN Legal Counsel
As mentioned earlier, in 2002 the Legal Counsel to the United Nations at the time, Hans Corell, provided an opinion at the request of the Security Council on the legality – in the context of international law, including relevant resolutions of the Security Council and the General Assembly of the United Nations, and agreements concerning Western Sahara – of actions allegedly taken by the Moroccan authorities consisting of the offering and signing of contracts with foreign companies for the exploration of mineral resources in Western Sahara.Footnote 56 Corell found that a response to the question required an analysis of both the status of Western Sahara in itself and the status of Morocco's relationship with that territory. The opinion did not use words like ‘occupation’, but nevertheless noted that Spain had not, and could not, transfer sovereignty to Morocco, and that Morocco was not listed as an administering power.Footnote 57 This might suggest that Morocco has no title to administer the territory and is a mere occupant. However, Corell concluded:Footnote 58
Notwithstanding the foregoing, and given the status of Western Sahara as a Non-Self-Governing Territory, it would be appropriate for purposes of the present analysis to have regard to the principles applicable to the powers and responsibilities of an administering Power in matters of mineral resource activities in such a Territory.
He found that Article 73 of the UN Charter applied and that resource exploitation in non-self-governing territories that is ‘for the benefit of the peoples of those territories, on their behalf, or in consultation with their representatives’ is in line with the relevant obligations and the principle of permanent sovereignty over natural resources. Hence, any exploration must be in line with ‘the interests and wishes of the people of Western Sahara’.Footnote 59 This opinion has been referred to frequently by parties, on both sides of the argument, regarding all forms of economic relations with Morocco over Western Sahara. Corell himself has interpreted this requirement to apply also to fishing and to be taken as a restriction rather than as a licence.Footnote 60 I will refer to this opinion both in the reviews of the proceedings and in the succeeding discussion.
3.2. The Polisario Case in the General Court
In December 2012, Polisario asked the CJEU to annul the EU Council's decision of the same year to adopt the liberalisation agreement on trade in agricultural and fishery products in so far as it covered Western Sahara.Footnote 61
As a preliminary matter, the CJEU had to deal with the question of whether Polisario had standing.Footnote 62 Here the General Court held that ‘the applicant is one of the parties to a dispute concerning the fate of that non-self-governing territory’Footnote 63 and, as such, ‘may be directly and individually concerned by the contested act’.Footnote 64 Hence, the standing of Polisario hinged on whether or not the agreement does apply to Western Sahara.Footnote 65 Polisario held that Morocco ‘does not administer Western Sahara under Article 73 of the United Nations Charter, but occupies it militarily’.Footnote 66 The Court did not settle the question of whether Western Sahara was occupied. However, it did find that the agreement applied also to Western Sahara;Footnote 67 the framework association agreement had in fact been applied to that territory, and there was no explicit exception clause. Consequently, there was ‘no doubt as to the admissibility of [Polisario's] action’, since it was affected by the agreement.Footnote 68 As we will see (in 4.4 below), the second instance court drew a different conclusion in that respect.
Moving on to the substance, the General Court found that the application essentially concerned two questions. First, is it categorically prohibited for the EU to conclude an international agreement ‘which may be applied to a territory in fact controlled by a non-member State’, even though the sovereignty of that state over that territory has not been recognised by the EU and its member states? Second, if there is no such categorical prohibition, and the EU institutions therefore have discretion in that regard, have they respected ‘the limits of that discretion and the conditions for its exercise’?Footnote 69
The Court found that the application of the agreement to Western Sahara does not amount to recognition of sovereignty over that territory,Footnote 70 and that it is not absolutely prohibited to conclude agreements that relate to such territories.Footnote 71 Consequently, the sticking point was how the Council had exercised its discretion.Footnote 72 The Court related – without questioning – the aforementioned finding by Corell that ‘resource exploitation activities [must be] conducted in Non-Self-Governing Territories for the benefit of the peoples of those Territories, on their behalf or in consultation with their representatives’.Footnote 73 It then noted that Morocco has no mandate from the UN or any other international body to administer the territory, and its failure to comply with the reporting obligation under Article 73(e) of the UN Charter ‘is, at the very least, likely to give rise to doubt as to whether [it] recognises the principle of the primacy of the interests of the inhabitants of that territory and the obligation to promote to the utmost their wellbeing’.Footnote 74 Further, the Court noted that it is clear that Morocco considers ‘Western Sahara to be part of its territory’.Footnote 75
Accordingly, if it were the case that the Kingdom of Morocco was exploiting the resources of Western Sahara to the detriment of its inhabitants, that exploitation could be indirectly encouraged by the conclusion of the agreement approved by the contested decision.Footnote 76
Hence, while it was not clear whether the Court held that Morocco was an administering power, it clearly found that Morocco had to comply with the obligations incumbent upon such a power, and that it had not done so. Therefore, in the exercise of its discretion:Footnote 77
[the Council] should have satisfied itself that there was no evidence of an exploitation of the natural resources of the territory of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights.
Since the Council had failed in that respect, the Court annulled the decision ‘in so far as it approves the application of that agreement to Western Sahara’.Footnote 78
The Council appealed against the judgment; this appeal was supported by the Commission (as intervener) and a number of states (see Section 3.4).
3.3. The Western Sahara Campaign Case in the British High Court
In the British case,Footnote 79 the claimants, Western Sahara Campaign UK, contended that the defendant – the Secretary of State for Environment, Food and Rural Affairs – was acting unlawfully by applying the Fisheries Partnership Agreement to Western Sahara.Footnote 80 The judge, Justice Blake, found that it was clear that fishing, licensed under the agreement, had taken place ‘within the territorial waters of the Western Sahara’.Footnote 81 Thus, in order to determine whether the UK authorities in question had acted unlawfully, it was necessary first to determine what the agreements actually meant. Since they had been concluded by the EU, Justice Blake needed to obtain a preliminary ruling from the CJEU about the agreements and submitted, inter alia, the following question to the CJEU:
Is the Fisheries Partnership Agreement between the EU and the Kingdom of MoroccoFootnote 82 … valid, [having regard to the requirement under Article 3(5) of the Treaty on European Union to contribute to the observance of any relevant principle of international law and respect for the principles of the United Nations Charter …]?
Justice Blake found that Morocco's presence constitutes ‘belligerent occupation’.Footnote 83 He noted that the UN recognises ‘that Morocco de facto administers the territory but neither the UN, the OAU [Organization of African Unity], the Member States of the EU, nor the Union itself recognise that Morocco has a de jure claim to sovereignty or rights of occupation’.Footnote 84 Justice Blake then reviewed Morocco's claim to the territory and dismissed all possible bases: ‘A colonial power cannot gift an occupied territory to a neighbouring state … Equally, unauthorised military occupation cannot found the basis for legitimate territorial claims’.Footnote 85 He concluded that the sovereign territory of Morocco does not include Western Sahara.Footnote 86 Before moving on in the argument, one should note – as will be discussed below in Section 4.1 – that Justice Blake did not discuss whether the law of occupation should apply; the only hint in this respect is his taking note of the fact that no ‘rights of occupation’ had been recognised.Footnote 87 Instead, it was the law relating to NSGTs that seemed to guide the judgment.
The next step in the reasoning was Justice Blake's query of what is ‘legitimate for a body respecting the principles of the UN Charter’.Footnote 88 He found that ‘it would not be a manifest error’ for the Commission to hold that it could enter into an agreement for the exploitation of natural resources, in spite of the ‘continued occupation of the territory of the Western Sahara’.Footnote 89 However, he found that some conditions would have to be fulfilled for such agreements to be made:Footnote 90
It may be that the benefits need to be directed specifically to the indigenous population. If this cannot be achieved as a matter of political practicality then no agreement should be entered with an administering power that:
i) does not recognise that this is its status and
ii) does not act in accordance with all the obligations imposed by Article 73 of the Charter,
iii) and in particular does not acknowledge the obligation to promote the self-determination of the people of Western Sahara.
Justice Blake then referred to Articles 40 and 41 of the International Law Commission's Draft Articles on State Responsibility,Footnote 91 which provide that states have a duty to cooperate to end serious breaches of customary international law.Footnote 92 He also quoted a paper by Corell from 2008Footnote 93 in which the 2002 opinion is applied to the Fisheries Partnership Agreement:Footnote 94
I find it incomprehensible that the Commission could find any such support in the legal opinion, unless, of course, it had established that the people of Western Sahara had been consulted, had accepted the agreement, and the manner in which the profits from the activity were to benefit them.
The conclusion was ‘that there is an arguable case of a manifest error by the Commission in understanding and applying international law relevant to these agreements’.Footnote 95
3.4. The Polisario Case and the Western Sahara Campaign Case in the Grand Chamber of the Court of Justice
The Grand Chamber of the CJEU dealt with the two cases in 2016 and 2018, respectively, with essentially the same line of reasoning.Footnote 96 In 2016 it dismissed Polisario's claim, not for substantive reasons but because the claimant lacked standing: in the Court's reading Polisario was not affected by the agreements since they did not cover Western Sahara. In 2018 it found that the FPA was not invalid as it, too, did not cover Western Sahara.
The Court based these conclusions on a line of reasoning around the rules in the Vienna Convention on the Law of Treaties,Footnote 97 including Article 31 on the interpretation of treaties.Footnote 98 It first set out to interpret the words ‘territory of the Kingdom of Morocco’ in Article 94 of the Association Agreement, on which the challenged liberalisation agreement was based.Footnote 99 Referring to the rule in Article 29 of the Vienna Convention,Footnote 100 the Court found:Footnote 101
A treaty is generally binding on a State in the ordinary meaning to be given to the term ‘territory’ … in respect of the geographical space over which that State exercises the fullness of the powers granted to sovereign entities by international law.
Having said that, the Court found that the words ‘territory of the Kingdom of Morocco’ could not be interpreted to mean that Western Sahara was included within the territorial scope of that agreement.Footnote 102 This finding was based, inter alia, on a review of the customary principle of self-determination, which is ‘a legally enforceable right erga omnes and one of the essential principles of international law’.Footnote 103 In particular, with reference to the Friendly Relations Declaration, ‘the territory of a colony or other Non-Self-Governing Territory has, under the [UN] Charter, a … separate and distinct [status]’.Footnote 104 Hence, while the Court did not state that Western Sahara was under occupation, its finding that this territory was not a part of Morocco, but had a separate status, must mean that the Court treated the annexation as null and void.Footnote 105
However, the Court also noted that ‘a treaty may, by way of derogation from the general rule … bind a State in respect of another territory if such an intention is apparent from that treaty or is otherwise established’.Footnote 106 In the subsequent inquiry into the ‘intentions’ of the parties the Court felt that it needed to determine the state of the law in order to ascertain what could possibly have been their intentions and, in particular, the intentions of the EU. With reference to the ICJ advisory opinion on Western Sahara and General Assembly Resolution 34/37,Footnote 107 the Court found that the people of Western Sahara represented a third party to the agreement and, as such, they had not consented to be affected by it. By reference to Article 34 of the Vienna Convention,Footnote 108 the Court concluded that ‘[i]n those circumstances, it is contrary to the principle of international law of the relative effect of treaties to take the view that the territory of Western Sahara comes within the scope of the Association Agreement’.Footnote 109
The Court then discussed the fact that the system of tariff preferences in the trade agreement had been ‘applied “de facto” to products originating in Western Sahara’.Footnote 110 However, if this subsequent practice had reflected the intention that the agreements be applicable to Western Sahara, that would mean ‘that the European Union intended to implement those agreements in a manner incompatible with the principles of self-determination and of the relative effect of treaties’.Footnote 111 That would ‘necessarily be incompatible with the principle that Treaty obligations must be performed in good faith’.Footnote 112 Therefore, there could be no such intention. With a similar line of reasoning, the Court dismissed the argument that prior or subsequent practice regarding the FPA would change the geographical scope of that agreement.Footnote 113
In 2018 the Court of Justice also considered the possibility that Morocco might be a ‘de facto administrative power’ or an occupying power. The Court did not bother to determine whether that would have been ‘compatible with the rules of international law’ because there could have been no such common intention, ‘since the Kingdom of Morocco has categorically denied that it is an occupying power or an administrative power’.Footnote 114
Hence, the Court concluded in 2016 and 2018 that none of the agreements covered Western Sahara, and therefore, none of them should be invalidated. Consequently, Polisario is a third party, not affected by the treaty, and has no standing to seek annulment of the decision. Hence, Polisario's action was dismissedFootnote 115 (although the reasoning in fact brought a victory to the claimants), and the question raised by the UK High Court was answered affirmatively.
To summarise, at both instances before the CJEU it was held that the presumption must be that an agreement does not apply beyond the recognised border of a state and that Western Sahara is not a part of Morocco, and the UK High Court reached a similar conclusion. Further, the three courts held that nevertheless it may be possible for two parties to conclude an agreement which covers their actions on such territory, but only under certain conditions. In this case, those conditions were not fulfilled, and therefore such an agreement could not be allowed. The General Court found that it (the agreement) had nevertheless happened (and therefore should be anulled), while the Court of Justice – perhaps tongue in cheek – asserted that since that would be unthinkable, it could not have happened. The Court of Justice did not state the precise conditions for a legally sound agreement other than that the principle of self-determination has to be satisfied,Footnote 116 including the ‘consent of such a third party’.Footnote 117 However, both the General Court in the first case and the UK High Court referred quite extensively to the legal opinion of 2002 by the UN Legal Counsel, as did the Advocate General in the two cases.
4. Implications
The outcomes of the four judicial proceedings were politically favourable for Polisario, in that they confirmed that Western Sahara is not a part of Morocco and that Morocco cannot contract freely on behalf of Western Sahara. What concerns us here, however, are the implications for the law. While it is certainly possible to argue for a position that differs from that of these legal institutions, I find it more interesting to take them at face value. By way of distinction from the de lege lata discussion in Section 2.2 above, this one is conjectural and speculative – almost a thought experiment. Could one fuse the two regimes?
4.1. The Relation between the Two Regimes
To recount briefly the review of the law in Section 2.2, both the law relating to NSGTs and the law of occupation provide that the force in power cannot use natural resources for its own good, and must consider the interests of the people concerned and possibly also their wishes. However, the two regimes are distinct and built on different legal sources, and these sources do not state how substantive differences between the two should be dealt with in situations where both may be applied.
How did the four legal institutions (the UN Legal Counsel, the UK High Court and the two instances of the CJEU) think of the relation between the regimes? The claimants in the four proceedings explicitly assumed that Western Sahara was occupied and the High Court (as well as the Advocate GeneralFootnote 118) clearly agreed. While neither of the two instances of the CJEU used the term ‘occupation’, they both held that Western Sahara was not a part of Morocco and, as developed above, that strongly suggests that Western Sahara is occupied. Hence, the courts could have applied the law of occupation, which has a treaty-based and fairly detailed regime, which includes highly relevant rules on the right of usufruct and a prohibition of colonial settlements, but no explicit obligation to consult the population concerned.Footnote 119
Nevertheless, neither the UN Legal Counsel nor the three courts discussed the law of occupation. The Court of Justice clearly saw no need for this, since it did not consider the treaties to be applicable to Western Sahara.Footnote 120 However, the opinions of the other three legal institutions suggest some interesting conclusions about the relation between the law of occupation and the law relating to NSGTs. Since the UN Legal Counsel, the UK High Court and the General Court did not apply the law of occupation, they must have thought either that NSGT law trumps the law of occupation,Footnote 121 probably as lex specialis, or that the two regimes say essentially the same thing.Footnote 122 If any of these two applies, it is unnecessary to refer to the law of occupation or even to determine whether it applies.Footnote 123 Therefore, it seems that these three bodies thought either that the two regimes are very similar or that the NSGT regime prevails.
Hans Corell confirmed this in a circumscribed way in 2008 when he recalled, in his private capacity, that in the deliberations before his 2002 opinion, the law of occupation was considered but that he had found the best way forward was to ‘make an analysis by analogy’ to the law applicable to NSGTs. ‘Any limitation of the powers of such an entity acting in good faith would certainly apply a fortiori to an entity that did not qualify as an administering power but de facto administered the territory’.Footnote 124 This more than suggests at least that the law of occupation – even if applicable – could not have changed the application of NSGT rules. The Advocate General was more explicit about the relation between the two regimes, and found that they ‘are not mutually exclusive’. Further, he stated, there is a point of convergence between Article 55 of the 1907 Hague Regulations and the principle of permanent sovereignty over natural resources: ‘namely that the exploitation of the natural resources of Western Sahara … must be carried out for the benefit of the people of Western Sahara’.Footnote 125 Since I find it difficult to argue that the NSGT regime in general trumps the law of occupation (which is an extraordinary regime, a lex specialis), I will proceed from the assumption that the two regimes are similar, or at least blend easily.Footnote 126
4.2. Merger or Mixing of the Two Regimes?
As mentioned in Section 2.2, the law of occupation in the 1907 Hague Regulations emphasised the rights of the ousted government, while the Fourth Geneva Convention made the occupied population the primary beneficiaries.Footnote 127 Further, over time it has come to be widely recognised that human rights law, too, is binding on an occupying power.Footnote 128 Hence, in an occupation situation there are three recognised paradigmatic concerns: (i) the sovereign authority of the ousted government; (ii) the protection of the civilians of the territory; and (iii) the human rights of each individual. The law relating to NSGTs is not so different: the ‘well-being of the inhabitants’ is paramountFootnote 129 and, of course, human rights for individuals apply universally today.Footnote 130 There is no ousted sovereign for an NSGT, but instead there is the political right of self-determination of the people.Footnote 131
As noted, the UN Legal Counsel and the three European courts demanded that the people of Western Sahara not only be well treated but also consulted,Footnote 132 thus adding a fourth concern to the three of the law of occupation – the self-determination of the people as a collective unit.Footnote 133 This concern is central to the law relating to NSGTs, of course. Is it a feature also of the law of occupation?
Self-determination has an external aspect – the right to determine the political future of the territory – and an internal one – the right to participate in governance.Footnote 134 The external aspect supports the ‘conservationist’ tendency in occupation law. The internal aspect could be used to justify violations of the conservationist principle – as was suggested regarding the constitutional changes made in Iraq – but one could also relate it to the management of the occupied territory. In the Wall advisory opinion, the ICJ held that the construction of the wall (or barrier), ‘along with measures taken previously … severely impedes the exercise by the Palestinian people of its right to self-determination’.Footnote 135 This passage is obscure, but it seems to me that it related not just to the final status of the occupied Palestinian territories (the external aspect) but also to the day-to-day management of the affairs of the Palestinian people – the internal aspect of self-determination.Footnote 136
The ICJ linked the right of self-determination to the concept of a sacred trust as a limitation of the authority of an administrator.Footnote 137 That concept is taken from Article 22 of the League CovenantFootnote 138 as well as from the chapeau of Article 73 of the UN Charter, which speaks of a ‘sacred trust’ ‘to promote to the utmost … the well-being of the inhabitants’ of the NSGT. In the Namibia opinion, the ICJ used this term in relation to the South African administration of the former mandate of South West Africa, which South Africa ‘occupied’ ‘illegally’.Footnote 139 Gross comments that ‘[t]he Court thus seems to be constructing a “sacred trust” concept … as the common denominator of all situations where people are not self-governing, including occupation’.Footnote 140 This is echoed by Benvenisti, who says that ‘the occupant's status is conceived to be that of a trustee’ and that ‘contemporary attention is paid more to the indigenous community under occupation rather than to the wishes of the ousted government’.Footnote 141 Hence, both an occupant and an adminstering power can be thought of as trustees on behalf of a community. Indeed, while it used to be the idea that for occupied sovereign territory it is the ousted sovereign that retains sovereignty, a more modern expression is to say that ‘[i]n light of the principle of self-determination, sovereignty and title in an occupied territory … remain with the population under occupation’.Footnote 142
Thus, the concept of ‘trustee’, a key term in the law relating to NSGTs, is now established in discourse on occupation.Footnote 143 Perhaps the idea that the people should be consulted has travelled the same route. Benvenisti finds that ‘the emerging expectation that states offer effective opportunities for participation of individuals in shaping public policies’ should ‘arguably inform the interpretation of Article 43’ of the Hague Regulations,Footnote 144 and an ICRC expert meeting held that ‘long-term occupation required the occupying power to take into consideration the will of the local population’.Footnote 145 One might conclude that until a people can (again) exercise their right of external self-determination, the power in force has to let them exercise internal self-determination by taking part in the governance of the territory. If that is correct, the legal situation appears to be rather harmonious: two bodies of law (occupation and self-determination) may apply, and they now both exhort the controlling power to take into account the will of people.Footnote 146
4.3. What Is the Basis of Each Regime?
So, it appears that the two regimes to a significant degree coincide, or at least interact congenially, and three legal institutions (the UK High Court, the General Court and the UN Legal Counsel) did not find it necessary to sort out the relation between them. What is even more interesting is that none of the three bothered to make a substantive distinction based on whether the (de facto) authority of Morocco had been established in accordance with or in violation of international law.
This brings me to the question of the bases for each regime – the trigger, if you will. Different rules apply in different situations and each rule is, directly or indirectly, connected with a rule of application, a rule that refers to a certain ‘fact’. If a certain set of facts are at hand, a certain set of rules are to be applied by a certain authority. I will call this the factual basis.
However, my question goes further. What is it that justifies that one fact rather than another is the precondition for an authority's application of a regime to an individual? Why should we provide an occupying or an administrative power with a certain authority? I will call this the political basis.
Even though Morocco's authority is severely circumscribed, it may nevertheless use the resources of that territory, under certain conditions. This right seems to be based on ‘a fact’ (the General Court) or ‘de facto control’ (the High Court) or ‘de facto administered’ (Corell).Footnote 147 How does this relate to the bases for the application of the law of occupation or the law relating to NSGTs?
Article 43 of the Hague Regulations speaks of ‘the authority … having in fact passed into the hands of the occupant’, and it is generally held that the powers of an occupant arise out of a ‘fact’, namely effective controlFootnote 148 or, in Dinstein's words, ‘the power of the bayonet’.Footnote 149 Oppenheim famously said that authority is ‘not by right’Footnote 150 but ‘the martial law of the occupying power ipso facto’.Footnote 151
It is more difficult to find a generally agreed factual basis for the authority of ‘administering powers’ of NSGTs (colonial powers). While the colonial states have invoked intertemporal law and claimed that their takings were legal at the time and that their remaining titles are still good,Footnote 152 many developing states have attacked and tried to delegitimise colonial claims to sovereignty.Footnote 153 Perhaps administration of a non-self-governing territory can most plausibly be based on control as a fact, too. Effective control is the most important basis for title to territory, including terra nullius,Footnote 154 and continued occupation is necessary in order not to lose such title. However, in distinction to ‘full’ sovereignty, the authority of an administering power of a non-self-governing territory is now limited, as recounted in Section 2.2. If so, not only has the substance of the two regimes converged, so has the political basis, meaning that the (limited) right to administer (temporarily) flows out of the fact of control.Footnote 155
Does this also apply to control that is the result of a manifest violation of international law? One could certainly argue that even the quite limited rights of an occupying power should be denied to an aggressorFootnote 156 – that is, an alleged ‘illegal’ occupier like Morocco should have no right to adminster at all. Yet, the courts did not attach much significance to the origin of the Moroccan control of Western Sahara. Although the General Court and the High Court noted that Morocco was only ‘de facto’ administering Western Sahara, they still applied the rules applicable to the adminstration of an NSGT.Footnote 157 Hence, the illegal origin of Moroccan control (a use of force, if not an act of aggression) meant that it did not have title to sovereignty, but that did not affect the application of the regime of NSGTs. This is well in line with the law of occupation, which – as a part of the jus in bello – applies regardless of whether the occupant achieved control over the territory in violation of international law.Footnote 158 In Benvenisti's words:Footnote 159
The emphasis is thus put not on the course through which the territory came under the foreign state's control … but rather on the phenomenon of occupation: the exceptional exercise of public power by one state in a foreign territory and over its inhabitants.
This explains why the various legal institutions were not concerned with the origin of Moroccan control. Both the law of occupation and the law relating to NSGTs apply erga omnes, to whoever is in control.
One reasonable conclusion is that if there is no title then the basic rule must be that administration should be carried out so as to not prejudice a future settlement regarding the permanent sovereignty over the territory, regardless of whether the situation is one of occupation or of (colonial) administration of an NSGT, and regardless of whether the taking of control was legal. If it does not matter whether the act that put the governing state in control was in agreement with international law, perhaps that is so because the authority of both an occupant and an administering power is now so circumscribed that there appears to be little need for a stricter governing regime for mala fide than for bona fide possessors.Footnote 160
5. An Afterthought: Sovereign, Occupied, Non-Self-Governing – Does It Matter?
Occupation and rule over an NSGT are both abnormal forms of authority in a Westphalian system of sovereign states. However, the laws of occupation and NSGT are both dependent on that of sovereignty – they are sovereignty in suspense or sovereignty as a promise.Footnote 161
Philosophers find the political basis for sovereignty in the people – popular self-rule (Rousseau) or consent (Hobbes, Locke). Still, the legal recognition of concrete instances of sovereignty – new independent states, acquisition of territory – has usually hinged on the same sort of fact as that on which occupation rests, namely effective control. Crawford finds that even though ‘norms that are non-derogable and peremptory cannot be violated by State-creation’, the principle of effectiveness ‘[n]o doubt … remains a major consideration’.Footnote 162 Further, just like the authority of an occupier or an administrator, the exercise of sovereign authority is circumscribed by numerous obligations like human rights law, including the right to participate in governance.
Perhaps the differences between various ‘forms of territorial rule’ are not that great.Footnote 163 Perhaps dealings in natural resources by a sovereign, an administrator or an occupier are legitimate only if it is for the good of the people and with their consent. Perhaps it is better to think of all of this in terms of different bundles of rights and obligations attached to various forms of governance, each bundle being exercised by one group of people over another group, and from time to time regulated by a particular constellation of international legal regimes.Footnote 164 If so, could not the principles of permanent sovereignty over natural resources apply to any exercise of authority over people? If we ask about the interests and wishes of the people of Western Sahara, why not ask the people of Morocco how they wish to use their natural resources?
However, that is to simplify things too much. As shown by the legal practice at hand, internal self-determination can to some extent be enforced before external self-determination has been exercised,Footnote 165 but hardly thereafter. The same goes for the limitations incumbent upon an occupant. For sure, in principle the right of self-determination requires that the people are allowed to ‘freely pursue their economic, social and cultural development’Footnote 166 and there is the human right to ‘take part in the conduct of public affairs, directly or through freely chosen representatives’.Footnote 167 Furthermore, in the recognition of new states, the will of the people in the territory is sometimes taken into account, and sometimes that is the case also in the ‘recognition’ of governments. However, once a state has been established and its government is in place, no court will declare a treaty or a concession contract invalid because it was not concluded with democratic pedigree.Footnote 168
In fact, one can even argue that an occupied people may be better off than a sovereign people in some respects. In a non-self-governing or occupied territory, the power is accountable under the UN Charter as a trustee and/or under IHL as an occupant, but in a sovereign state, legitimate authority is presumed.Footnote 169 Schrijver findsFootnote 170 that apart from Resolution 1803Footnote 171 and a few other UN Resolutions,
only cursory evidence can be found that under international law States have a duty to exercise their right to permanent sovereignty over natural resources in the interest of national development and to ensure that their inhabitants benefit from resource exploitation.
Even less, presumably, would there be evidence of an obligation to consult the people when natural resources are being used. If you think about it this way, the status of independence seems a slightly less attractive goal for a people.
Yet, that is not how leaders of colonised peoples have thought about it. ‘We have awakened. We will not sleep anymore’, said Nkrumah of Ghana in 1957.Footnote 172 ‘We are going to ensure that the lands of our fatherland truly profit to its children,’ said Lumumba of the Congo three years later.Footnote 173 Sovereignty entails the potential to pursue development ‘without external interference’.Footnote 174 Upon independence, the inhabitants of a territory become citizens of a sovereign state, a population becomes a polity, an administrator gives way to representatives. Under the regime of sovereignty, the government is presumably ‘representing the whole people belonging to the territory without distinction as to race, creed or colour’.Footnote 175
There are good principled reasons to be asking the government of Morocco hard questions for the people of Western Sahara, but give them the benefit of the doubt regarding the people of Morocco. We can pierce the sovereign veil to some extent and demand compliance with human rights, but if we second-guess every decision or prescribe the details for a good system of governance, there is not much left of pluralism.Footnote 176 After all, there is no neutral ground from which to judge – just the one or the other particularist claim that may (or may not) have been elevated to universality.
To return to my doubts, that presumption cannot be unrebuttable,Footnote 177 because that group of people who have been given the authority to rule under the principle of sovereignty can abuse their powers; and if they do, they undermine the political basis for our distinction between full sovereignty and other forms of authority. In 1958 Nkrumah introduced the Preventive Detention Act to curb his opposition. In 1965, as Congo emerged out of civil war and foreign intervention, Lumumba's former secretary Mobuto took power, depleting the country's resources until 1997, when he was exiled to Morocco and his old friend, Hassan II, who in the meantime had not only occupied Western Sahara but also extracted a fortune from phosphates and other Moroccan and Sahrawi resources. Distinctions of status established by law (sovereign, occupied, non-self-governing, etc) may be worthy of protection, but they are nevertheless arbitrary, and whether or not they serve justice cannot be determined in the abstract.
