On 4 October, the Grand Chamber of the European Court of Justice upheld the General Court’s annulment of a Council Decision concluding an Amendment to the EU-Morocco Association Agreement. It did so on the grounds that the EU Commission and Council had failed to obtain the consent of the Saharawi people and thereby violated their right to self-determination. This brings to an initial close a long line of cases concerning EU trade agreements with Morocco purporting to apply to the territory of Western Sahara. Western Sahara is a non-self-governing territory that has been occupied by Morocco since its invasion in 1975. The Saharawi are the recognized holders of the right to self-determination. The cases are brought by the Western Saharan national liberation movement and UN-recognised representative of the Saharawi people, the Front Polisario, and have been discussed on the pages of this blog on numerous occasions (here, here, here, here, here, and here).
The legal question in these cases boils down to this: what conditions must be met for the conclusion of a trade agreement applicable to a non-self-governing territory to be lawful? This post goes to the heart of that question: a contest between two legal tests. On the one hand the benefits test, superficially drawn from the law of self-determination, but in fact rooted in the logic of the law of occupation. And on the other, the requirement of consent, superficially drawn from the principle of relative effect, but in fact rooted in the logic of self-determination. The European Court of Justice has purported to resolve this tension in favour of consent, while in effect reintroducing the benefits test through the backdoor. In doing so, the Court has strengthened the protections of the benefits test, but omitted key elements of the law of occupation and sidelined the right to self-determination.
Benefits: Law of Occupation in the Guise of Self-Determination
The first test, advocated for throughout these cases by the EU Commission and the Council, is the benefits test. Authority for the benefits test is found in the ‘Corell Opinion’, a legal opinion drafted in 2002 by the UN Legal Counsel for the President of the Security Council. It sought to evaluate the international legality of mineral exploration contracts in Western Sahara concluded by Morocco with foreign companies. Corell based his analysis on the responsibilities of an administering power, even though he acknowledged that Morocco was not listed as administering power of the territory. He drew primarily on the administering power’s obligations under Article 73 UN Charter to safeguard the inalienable rights of the inhabitants over their natural resources and the related principle of permanent sovereignty over natural resources. Corell concluded that the exploitation of natural resources on non-self-governing territories would be compatible with these principles where it is conducted ‘for the benefit of the peoples of those Territories, on their behalf or in consultation with their representatives’.
Though ostensibly based on the law of decolonization, the Corell Opinion in reality draws on the logic of the law of occupation. This is evident in its wording. In the context of non-self-governing territories, the doctrine of permanent sovereignty over natural resources developed a distinction between activities that benefit the people and activities that do not. The General Assembly affirmed the value of foreign economic investment, provided it was undertaken ‘in collaboration with the peoples of the Non-Self-Governing Territories and in accordance with their wishes (my emphasis)’. Corell purports to adopt this distinction in formulating his own test, but his wording differs in two decisive regards: ‘on their behalf’ and ‘or in consultation with (my emphasis)’. The principle developed by the General Assembly for non-self-governing territories envisages the cumulative requirement ‘undertaken in collaboration with the peoples and in accordance with their wishes’. It requires both the active participation of the people (‘in collaboration’) and the respect for their express will (‘in accordance with their wishes’). By contrast, Corell’s wording introduces ‘on their behalf’, a formulation that implies deciding ‘for’ but not ‘with’ the people; and it does so as an alternative condition to consultation (‘or’).
This possibility to decide on behalf of the people without direct consultation omits the essential element of the will of the people at the heart of the permanent sovereignty over natural resources of colonial peoples. It has more in common with the standard under the law of occupation enshrined in Article 55 of the Hague Convention (IV). Here the occupying power is regarded as administrator with limited rights of usufruct but is under no obligation to consult with the people of the territory or ascertain their will. While the Corell Opinion remains silent on the status of Morocco as occupying power, it ends up transplanting the logic of the law of occupation into the law on decolonization, thereby rendering optional an involvement of the people that is foreseen as an essential part of permanent sovereignty over natural resources under the right to self-determination.
Consent: Self-Determination in the Guise of Relative Effect
The second test in play is the requirement of consent, advocated for throughout in these cases by the Polisario. The requirement of consent is drawn from the principle of relative effect in the law of treaties, though its application to non-state actors such as the Polisario is derived specifically from EU case law.
According to the rule expressed in Article 34 of the Vienna Convention on the Law of Treaties (1969), a ‘treaty does not create either obligations or rights for a third State without its consent’. In Brita, the European Court of Justice relied on this principle to interpret the territorial scope of EC-Israel trade agreements. The question before it was whether products manufactured in the occupied Palestinian territories by an Israeli company fell within the territorial scope of the EC-Israel Association Agreement and thereby enjoyed preferential tariff treatment. The Court held that they did not. To interpret the EC-Israel Agreement as furnishing Israeli customs authorities with competence over products originating in the West Bank would amount to an obligation on Palestinian customs authorities not to exercise their own competence under the twin EC-PLO Association Agreement. This would create an obligation for a third party, the PLO, to which it had not consented and would therefore be contrary to the relative effect of treaties. The court was able to reach this conclusion with a simple lexical sleight of hand, carefully shifting the wording of Article 34 from ‘third state’ to ‘third party’, thereby bringing the PLO within its application.
The decision came in for considerable criticism from international lawyers. There is general agreement that the principle of relative effect does not extend to non-state actors. The reason is that its rationale lies not in a general principle of contract law, but specifically in the sovereign independence of states, which is not analogously applicable to non-state actors. While the Court’s application of the principle of relative effect may exceed the doctrinal consensus in international law, its emphasis on an express declaration of will in the form of consent actually comes much closer to the spirit of the right to self-determination than Corell’s benefits test or the law of occupation. As such, while drawn from the law of treaties, the consent requirement in effect gives expression to the requirement of a free and genuine expression of the will of the people at the core of the right to self-determination.
The Contest Between Benefits and Consent
The contest between benefits and consent sits at the heart of the Front Polisario cases. It is important to appreciate the stakes for the parties involved. From the Commission’s point of view, the benefits test grants room for manoeuvre. Legality depends on evaluation. This places the conclusion of trade agreements applying to Western Sahara firmly within the considerable margin of appreciation enjoyed by the Commission in the context of external relations. From the Polisario’s point of view, the consent test grants the Saharawi people the power to decide. Legality depends on yes or no. This turns the legality of trade agreements applying to the territory of Western Sahara into a clear-cut question dependent only on the will of the Saharawi people. At stake for both sides is agency over trade agreements applicable to the territory.
In a previous round of litigation, the Grand Chamber appeared to have settled the question decisively. In Case C-104/16 P, concerning the legality of the conclusion of the EU-Morocco Association Agreement, the Court held that ‘the people of Western Sahara must be regarded as a “third party” within the meaning of the principle of the relative effect of treaties […]. As such, that third party may be affected by the implementation of the Association Agreement in the event that the territory of Western Sahara comes within the scope of that agreement, without it being necessary to determine whether such implementation is likely to harm it or, on the contrary, to benefit it (my emphasis)’ (para 106). It was ultimately this reasoning that the General Court applied to annul the Council’s decision in the current round of litigation.
False Resolution: Benefits in the Guise of Implied Consent
The Grand Chamber has now effectively reopened the contest between consent and benefits. Moving in one direction, it confirmed the General Court’s finding that the Corell Opinion ‘does not constitute a source of EU law which can be relied on before the EU judicature’ (para 138). It did so on the basis that it was neither akin to a rule of international treaty law which is binding on the EU, nor to a rule of customary international law. In doing so, it seemed to be putting the benefits test to rest.
Yet in countermotion, the Grand Chamber also held that the General Court erred in law in its assumption that consent had to be explicit (para 144-149). Drawing on the Permanent Court of International Justice’s 1927 judgment in Free Zones of Upper Savoy and the District of Gex, the Grand Chamber held that ‘customary international law does not exclude the possibility that such consent may be granted implicitly in certain circumstances’ (para 152). In the case of agreements applied to non-self-governing territories, the consent of the people of that territory may be presumed if two conditions are satisfied: the agreement must (i) ‘not give rise to an obligation for that people’; (ii) ‘provide that the people itself […] receives a specific, tangible, substantial and verifiable benefit from the exploitation of that territory’s natural resources […] proportional to the degree of that exploitation [and] accompanied by guarantees that the exploitation will be carried out under conditions […] so as to ensure that non-renewable natural resources remain abundantly available and that renewable natural resources […] are consistently replenished. Lastly, the agreement in question must also provide for a regular control mechanism enabling it to be verified whether the benefit granted to the people in question under that agreement is in fact received by that people’ (153).
The first thing to say is that the court puts the benefits test out to pasture, only to reintroduce it through the construction of implied consent. As has already been noted, it does so on the basis of relatively scant authority.
The second, is that the reintroduction of the benefits test entails a considerable refinement of its terms. Insisting on ‘specific, tangible, substantial and verifiable’ benefits, a ‘sustainable development’ component, and a control mechanism, the Court increases the substantive and procedural protections of the test.
The third, is that this test, like its cousin in the Corell Opinion, selectively imports elements of the law of occupation while omitting key considerations that underpin this regime. The Court’s formulation of an obligation to ensure that non-renewable resources remain abundantly available echoes the obligation in Article 55 of the Hague Conventions (IV) to ‘safeguard the capital’. However, the Court does not ask itself the more fundamental question, whether the extraction of resources is permitted for any purpose or only for certain purposes. In the law of occupation, the point is contested. A broad reading, based in the domestic law of usufruct, proposes that the occupying power can dispose of the fruit as its wishes, which would include exporting the extracted resources for profit beyond the confines of the occupied territory. The more persuasive reading situates Article 55 within the occupant’s broader trusteeship obligations, according to which an occupant may only act for the needs of the local population or for its own security interests, but not for simple economic gain. Not only does this view better conform to the overall object and purpose of the law of occupation, it also finds support in the UN Security Council’s position, for example, on the use of resources during the occupation of Iraq.
Fourth, in failing to engage openly with the relationship between the right to self-determination and the law of occupation, the Court has considerably muddied the water. The ‘benefits test as implied consent’ reintroduces elements of the law of occupation but untethers them from the guiding principle of that regime that occupation be temporary. In doing so, the Court also moves the EU’s standard away from the fundamental principle of a free and genuine expression of the will of the people at the heart of the law of self-determination.
Despite welcome refinements, the Grand Chamber has not resolved the heart of the issue, only postponed it: the ‘presumption of consent may nonetheless be reversed so long as legitimate representatives of that people establish that the system of benefits […] does not satisfy the conditions [of implied consent]’ (para 156). It is presumably on these words that the now inevitable next round of litigations will be conducted.
Joined Cases C-779/21 P, Commission v Front Polisario and C-799/21 P, Council v Front Polisario: The Unresolved Contest Between ‘Benefits’ and ‘Consent’
Written by Sebastian von MassowOn 4 October, the Grand Chamber of the European Court of Justice upheld the General Court’s annulment of a Council Decision concluding an Amendment to the EU-Morocco Association Agreement. It did so on the grounds that the EU Commission and Council had failed to obtain the consent of the Saharawi people and thereby violated their right to self-determination. This brings to an initial close a long line of cases concerning EU trade agreements with Morocco purporting to apply to the territory of Western Sahara. Western Sahara is a non-self-governing territory that has been occupied by Morocco since its invasion in 1975. The Saharawi are the recognized holders of the right to self-determination. The cases are brought by the Western Saharan national liberation movement and UN-recognised representative of the Saharawi people, the Front Polisario, and have been discussed on the pages of this blog on numerous occasions (here, here, here, here, here, and here).
The legal question in these cases boils down to this: what conditions must be met for the conclusion of a trade agreement applicable to a non-self-governing territory to be lawful? This post goes to the heart of that question: a contest between two legal tests. On the one hand the benefits test, superficially drawn from the law of self-determination, but in fact rooted in the logic of the law of occupation. And on the other, the requirement of consent, superficially drawn from the principle of relative effect, but in fact rooted in the logic of self-determination. The European Court of Justice has purported to resolve this tension in favour of consent, while in effect reintroducing the benefits test through the backdoor. In doing so, the Court has strengthened the protections of the benefits test, but omitted key elements of the law of occupation and sidelined the right to self-determination.
Benefits: Law of Occupation in the Guise of Self-Determination
The first test, advocated for throughout these cases by the EU Commission and the Council, is the benefits test. Authority for the benefits test is found in the ‘Corell Opinion’, a legal opinion drafted in 2002 by the UN Legal Counsel for the President of the Security Council. It sought to evaluate the international legality of mineral exploration contracts in Western Sahara concluded by Morocco with foreign companies. Corell based his analysis on the responsibilities of an administering power, even though he acknowledged that Morocco was not listed as administering power of the territory. He drew primarily on the administering power’s obligations under Article 73 UN Charter to safeguard the inalienable rights of the inhabitants over their natural resources and the related principle of permanent sovereignty over natural resources. Corell concluded that the exploitation of natural resources on non-self-governing territories would be compatible with these principles where it is conducted ‘for the benefit of the peoples of those Territories, on their behalf or in consultation with their representatives’.
Though ostensibly based on the law of decolonization, the Corell Opinion in reality draws on the logic of the law of occupation. This is evident in its wording. In the context of non-self-governing territories, the doctrine of permanent sovereignty over natural resources developed a distinction between activities that benefit the people and activities that do not. The General Assembly affirmed the value of foreign economic investment, provided it was undertaken ‘in collaboration with the peoples of the Non-Self-Governing Territories and in accordance with their wishes (my emphasis)’. Corell purports to adopt this distinction in formulating his own test, but his wording differs in two decisive regards: ‘on their behalf’ and ‘or in consultation with (my emphasis)’. The principle developed by the General Assembly for non-self-governing territories envisages the cumulative requirement ‘undertaken in collaboration with the peoples and in accordance with their wishes’. It requires both the active participation of the people (‘in collaboration’) and the respect for their express will (‘in accordance with their wishes’). By contrast, Corell’s wording introduces ‘on their behalf’, a formulation that implies deciding ‘for’ but not ‘with’ the people; and it does so as an alternative condition to consultation (‘or’).
This possibility to decide on behalf of the people without direct consultation omits the essential element of the will of the people at the heart of the permanent sovereignty over natural resources of colonial peoples. It has more in common with the standard under the law of occupation enshrined in Article 55 of the Hague Convention (IV). Here the occupying power is regarded as administrator with limited rights of usufruct but is under no obligation to consult with the people of the territory or ascertain their will. While the Corell Opinion remains silent on the status of Morocco as occupying power, it ends up transplanting the logic of the law of occupation into the law on decolonization, thereby rendering optional an involvement of the people that is foreseen as an essential part of permanent sovereignty over natural resources under the right to self-determination.
Consent: Self-Determination in the Guise of Relative Effect
The second test in play is the requirement of consent, advocated for throughout in these cases by the Polisario. The requirement of consent is drawn from the principle of relative effect in the law of treaties, though its application to non-state actors such as the Polisario is derived specifically from EU case law.
According to the rule expressed in Article 34 of the Vienna Convention on the Law of Treaties (1969), a ‘treaty does not create either obligations or rights for a third State without its consent’. In Brita, the European Court of Justice relied on this principle to interpret the territorial scope of EC-Israel trade agreements. The question before it was whether products manufactured in the occupied Palestinian territories by an Israeli company fell within the territorial scope of the EC-Israel Association Agreement and thereby enjoyed preferential tariff treatment. The Court held that they did not. To interpret the EC-Israel Agreement as furnishing Israeli customs authorities with competence over products originating in the West Bank would amount to an obligation on Palestinian customs authorities not to exercise their own competence under the twin EC-PLO Association Agreement. This would create an obligation for a third party, the PLO, to which it had not consented and would therefore be contrary to the relative effect of treaties. The court was able to reach this conclusion with a simple lexical sleight of hand, carefully shifting the wording of Article 34 from ‘third state’ to ‘third party’, thereby bringing the PLO within its application.
The decision came in for considerable criticism from international lawyers. There is general agreement that the principle of relative effect does not extend to non-state actors. The reason is that its rationale lies not in a general principle of contract law, but specifically in the sovereign independence of states, which is not analogously applicable to non-state actors. While the Court’s application of the principle of relative effect may exceed the doctrinal consensus in international law, its emphasis on an express declaration of will in the form of consent actually comes much closer to the spirit of the right to self-determination than Corell’s benefits test or the law of occupation. As such, while drawn from the law of treaties, the consent requirement in effect gives expression to the requirement of a free and genuine expression of the will of the people at the core of the right to self-determination.
The Contest Between Benefits and Consent
The contest between benefits and consent sits at the heart of the Front Polisario cases. It is important to appreciate the stakes for the parties involved. From the Commission’s point of view, the benefits test grants room for manoeuvre. Legality depends on evaluation. This places the conclusion of trade agreements applying to Western Sahara firmly within the considerable margin of appreciation enjoyed by the Commission in the context of external relations. From the Polisario’s point of view, the consent test grants the Saharawi people the power to decide. Legality depends on yes or no. This turns the legality of trade agreements applying to the territory of Western Sahara into a clear-cut question dependent only on the will of the Saharawi people. At stake for both sides is agency over trade agreements applicable to the territory.
In a previous round of litigation, the Grand Chamber appeared to have settled the question decisively. In Case C-104/16 P, concerning the legality of the conclusion of the EU-Morocco Association Agreement, the Court held that ‘the people of Western Sahara must be regarded as a “third party” within the meaning of the principle of the relative effect of treaties […]. As such, that third party may be affected by the implementation of the Association Agreement in the event that the territory of Western Sahara comes within the scope of that agreement, without it being necessary to determine whether such implementation is likely to harm it or, on the contrary, to benefit it (my emphasis)’ (para 106). It was ultimately this reasoning that the General Court applied to annul the Council’s decision in the current round of litigation.
False Resolution: Benefits in the Guise of Implied Consent
The Grand Chamber has now effectively reopened the contest between consent and benefits. Moving in one direction, it confirmed the General Court’s finding that the Corell Opinion ‘does not constitute a source of EU law which can be relied on before the EU judicature’ (para 138). It did so on the basis that it was neither akin to a rule of international treaty law which is binding on the EU, nor to a rule of customary international law. In doing so, it seemed to be putting the benefits test to rest.
Yet in countermotion, the Grand Chamber also held that the General Court erred in law in its assumption that consent had to be explicit (para 144-149). Drawing on the Permanent Court of International Justice’s 1927 judgment in Free Zones of Upper Savoy and the District of Gex, the Grand Chamber held that ‘customary international law does not exclude the possibility that such consent may be granted implicitly in certain circumstances’ (para 152). In the case of agreements applied to non-self-governing territories, the consent of the people of that territory may be presumed if two conditions are satisfied: the agreement must (i) ‘not give rise to an obligation for that people’; (ii) ‘provide that the people itself […] receives a specific, tangible, substantial and verifiable benefit from the exploitation of that territory’s natural resources […] proportional to the degree of that exploitation [and] accompanied by guarantees that the exploitation will be carried out under conditions […] so as to ensure that non-renewable natural resources remain abundantly available and that renewable natural resources […] are consistently replenished. Lastly, the agreement in question must also provide for a regular control mechanism enabling it to be verified whether the benefit granted to the people in question under that agreement is in fact received by that people’ (153).
The first thing to say is that the court puts the benefits test out to pasture, only to reintroduce it through the construction of implied consent. As has already been noted, it does so on the basis of relatively scant authority.
The second, is that the reintroduction of the benefits test entails a considerable refinement of its terms. Insisting on ‘specific, tangible, substantial and verifiable’ benefits, a ‘sustainable development’ component, and a control mechanism, the Court increases the substantive and procedural protections of the test.
The third, is that this test, like its cousin in the Corell Opinion, selectively imports elements of the law of occupation while omitting key considerations that underpin this regime. The Court’s formulation of an obligation to ensure that non-renewable resources remain abundantly available echoes the obligation in Article 55 of the Hague Conventions (IV) to ‘safeguard the capital’. However, the Court does not ask itself the more fundamental question, whether the extraction of resources is permitted for any purpose or only for certain purposes. In the law of occupation, the point is contested. A broad reading, based in the domestic law of usufruct, proposes that the occupying power can dispose of the fruit as its wishes, which would include exporting the extracted resources for profit beyond the confines of the occupied territory. The more persuasive reading situates Article 55 within the occupant’s broader trusteeship obligations, according to which an occupant may only act for the needs of the local population or for its own security interests, but not for simple economic gain. Not only does this view better conform to the overall object and purpose of the law of occupation, it also finds support in the UN Security Council’s position, for example, on the use of resources during the occupation of Iraq.
Fourth, in failing to engage openly with the relationship between the right to self-determination and the law of occupation, the Court has considerably muddied the water. The ‘benefits test as implied consent’ reintroduces elements of the law of occupation but untethers them from the guiding principle of that regime that occupation be temporary. In doing so, the Court also moves the EU’s standard away from the fundamental principle of a free and genuine expression of the will of the people at the heart of the law of self-determination.
Despite welcome refinements, the Grand Chamber has not resolved the heart of the issue, only postponed it: the ‘presumption of consent may nonetheless be reversed so long as legitimate representatives of that people establish that the system of benefits […] does not satisfy the conditions [of implied consent]’ (para 156). It is presumably on these words that the now inevitable next round of litigations will be conducted.
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