Self-Determination, Occupation and the Authority to Exploit Natural Resources: Trajectories from Four European Judgments on Western Sahara

Abstract

In two recent cases before the Court of Justice of the European Union (CJEU), the General Court (at first instance), the High Court of Justice of England and Wales and the Grand Chamber of the CJEU found that a trade agreement and a fisheries agreement between Morocco and the European Union cannot be applied to occupied Western Sahara without the consent of its people. In spite of the fact that it is the general view that Western Sahara is under belligerent occupation, none of the three courts invoked the law of occupation but based themselves instead on the principle of self-determination and the law governing the administration of non-self-governing territories, including the principle of permanent sovereignty over natural resources. A possible implication of these judgments is that that law and the law of occupation are converging in certain respects, in particular as regards long-term occupation. This pertains not only to the substantive rules on the exercise of authority, which seem to require that the people are heard, but also to the basis for the establishment of that authority, namely bare control.

Natural resource exploitation in Western Sahara: new research directions

“…The GCEU in 2015 recognised the Polisario Front's capacity to lodge an appeal because it was affected by the European Council's decision both directly and individually (Soroeta Liceras 2016. This was not the case with the 2018 CJEU sentence in the second instance, which established that the Polisario could not be affected by an agreement that did not include Western Sahara (Wrange 2019). In the case of Western Sahara Campaign UK, the High Court of Justice in England recognised the capacity of this NGO to lodge an appeal, taking the same line as the GCEU (Naïli 2019).…”

“…The GCEU at first instance annulled the EU-Morocco liberalisation agreement because the EU had not ensured 'that the production of goods for export [was] not conducted to the detriment of the population' (Soroeta Liceras 2016; Wrange 2019). Ultimately however, as noted above, the Court of Justice at second and final instance revoked the sentence of the General Court at first instance; in other words, the fisheries agreement was not invalid (Wrange 2019).…”

“…Similarly, Smith (2011, footnote 40) points out that a people under military occupation cannot credibly give consent 'to the taking of their resources' as they are 'protected persons … under Article 8 of the Fourth Geneva Convention' (2011, 12, FN40; see also Badia Martí 2009; Simanowitz 2009; Wrange 2019). Haugen (2007), Soroeta Liceras (2009Liceras ( , 2014 and Wrange (2019) are explicit in their assertion that only the Polisariothe movement struggling for Western Sahara's independence since the Spanish era and the sole legitimate representative of the Sahrawi people vis-à-vis the UNcan give consent for the Sahrawi's resources to be exploited. The GCEU in 2015 recognised the Polisario Front's capacity to lodge an appeal because it was affected by the European Council's decision both directly and individually (Soroeta Liceras 2016.…”

“…Researchers have noted that the distinction between the terms 'people' and 'population' is fundamental in this context, not only from a legal point of view, but also with regard to economic and social consequences. While the term 'people' refers to a political entity with a right to self-determination, 'population' refers to the people who live in a territory (Wrange 2019). EU institutions have repeatedly used the term 'population' instead of 'people'.…”

The role of non-state actors in the exploitation of Western Sahara’s natural resources

“…This principle is deduced from the right to free self-determination as established by international law (Dawidowicz 2013;Hummelbrunner and Prickartz 2016;Byron 2017). In practice, after 2012in other words, after the EU-Morocco Agreement was signed concerning reciprocal liberalisation measures on agricultural and fishery products (2012/2522(RSP)), despite the European Parliament's vote against it in December 2011the Polisario Front filed an appeal with the Court of Justice of the European Union (Soroeta Liceras 2016, 2017Wrange 2019). With the national courts, like the United Kingdom High Court, an NGO, Western Sahara Campaign UK, brought action (Kassoti 2019;Naïli 2019).…”