In not treating the territory of Western Sahara and the waters adjacent thereto as separate and distinct from that of the Kingdom of Morocco, the Council failed to respect the right of self-determination of the people of Western Sahara
Western Sahara is a territory in North-West Africa, bordered by Morocco to the north, the People’s Democratic Republic of Algeria to the north-east, the Islamic Republic of Mauritania to the east and south and the Atlantic to the west.
In January 2019, the European Union and the Kingdom of Morocco signed the Sustainable Fisheries Partnership Agreement (the “Fisheries Agreement”), along with the Implementation Protocol[1]. That agreement was approved[2] by the Council on behalf of the European Union (the “Council decision”).
In June 2019, the Front Polisario[3], a movement supporting the right of the Sahrawi people to self-determination sought the annulment of the Council decision before the General Court. In its action, Front Polisario claims to represent the people of Western Sahara. It argues that the Council failed to respect the right to self-determination of that people. In its judgment[4], the General Court annulled the Council decision. In 2021, both the Commission and the Council brought an appeal before the Court of Justice[5].
In her Opinion, Advocate General Tamara Ćapeta proposes that the Court reject these appeals and uphold the General Court’s judgment to annul the Council’s decision. However, Advocate General proposes to base that annulment on different reasoning.
First, the Advocate General explains that the people of Western Sahara have no official or recognised representative to bring an action on their behalf. However, Front Polisario fights for one of the three possible outcomes of the right to self-determination of the people of Western Sahara: the creation of an independent State. Accordingly, Front Polisario should be viewed as reflecting the interests and wishes of (at least) part of the people of Western Sahara.
Turning to the substance of the case, the Advocate General explains that the Fisheries Agreement and the
Implementation Protocol do not fulfil the requirement to treat the territory of Western Sahara as ‘separate and distinct’ from that of the Kingdom of Morocco.
This is in violation of the principle of self-determination, as interpreted by the Court of Justice in its 2016 judgment in C-104/16 P Council v Front Polisario[6].
Furthermore, according to the Advocate General the failure to treat the two territories separately may also have repercussions on the right of the people of Western Sahara to enjoy and benefit from their natural resources, including the fishing resources in the waters adjacent to that territory. However, since some of those elements, while raised before the General Court, were not dealt with, it is not for the Court of Justice to discuss the scope of the rights and duties related to the enjoyment of natural resources of the people of Western Sahara.
[1] Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco.
[2] Council Decision (EU) 2019/441 of 4 March 2019 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement.
[3] Frente Popular para la Liberación de Saguia El-Hamra y Rio de Oro (Popular Front for the Liberation of Saguia El-Hamra and Rio de Oro).
[4] Judgment of 29 September 2021, Front Polisario v Council, T-344/19 and T-356/19 (Press Release n° 166/21).
[5] These appeals are linked to the appeals in joined cases C-779/21 P and C-799/21 P, Commission and Council v Front Polisario (Press Release n°54/24).
[6] Judgment of 21 December 2016, Council v Front Polisario, C-104/16 P (Press Release n°146/16).
