International conference on multilateralism and international law,
with Western Sahara as a case study

4 and 5 December 2008
Pretoria, South Africa


Marco Balboni
University of Bologna


THE EU’S APPROACH TOWARDS WESTERN SAHARA


1. Introduction

Our purpose in this intervention is to give a general overview of the attitude adopted by the EU towards the question of Western Sahara.
For the sake of simplicity, we may distinguish between the general political approach adopted by the EU and the concrete attitude adopted by the same organization vis-à-vis all the interested actors in the region and, above all, vis-à-vis the main power concerned, i.e. Morocco.

2. General political attitude

The general political approach adopted by the EU on the question of Western Sahara comes from two main sources: the resolutions of the European Council (EC) adopted in the field of the Common Foreign and Security Policy and the resolutions or declarations of the European Parliament (EP) adopted in the framework of its autonomous political capacity 1 .

The EP is quite favourable to the rights of the Saharawi people. At least since 1989, the EP has openly defined the issue as a problem of decolonization which must be resolved in accordance with the right of the Saharawi people to self-determination and has urged Member States and the European Council to use their influence in order to promote a solution of the conflict in accordance with that principle 2 .

By contrast, the position of the European Council emerging from the framework of the Common Foreign and Security Policy is more cautious. From the early 1990s, the EC has constantly  restricted itself to sustain the approach and the actions implemented by the UN and to invite all the parties in conflict to cooperate with the UN in order to find a solution.
This can be considered a very minimal approach compared to the positions adopted towards very similar situations such as Palestine and Cyprus.
As it is well known, this attitude is due to the deeply different positions of the Member States concerning the question of Western Sahara. While many northern countries are openly favourable to the rights of the Saharawi people, many southern countries have a more cautious, if not hostile, approach, due to the will of maintaining good relations with Morocco. It is not just the case of France, a country that has built important ties with Morocco and is thus unwilling to jeopardise them, but also of Spain, at least in these last times 3 .

However this minimal approach does not lack of positive aspects.
First of all, in this way, the EC can speak with one single voice. This happens even within the IV° Commission of the General Assembly that is charged with the questions concerning decolonisation. This does not always happen for other international organisations, starting with the League of Arab States or the African Union.
Secondly, this minimal approach has not prevented the EU from finding the agreement necessary in order to adopt concrete actions on the field that have proved to be very important, as the humanitarian aid the EU has granted to the region and the continuous and profitable cooperation within the actions and programmes implemented by the UN.
Third, this attitude is not detrimental to any solution of the conflict in compliance with the applicable principles of international law, to begin with the principle of self-determination as acknowledged within the UN framework.

Another issue is whether this general political attitude is consistent with the legal ties the EU has built on the field with the countries involved and, above all, with Morocco.

3. Concrete attitude on the field

3.1. The status of the relationships between EU and Morocco

The European Union has concluded several agreements with Morocco and Morocco is now the first partner of the Union in the region. All these agreements are bilateral and have been concluded within the framework of the Barcelona process 4  . They aim at implementing economic cooperation between the countries party to the agreement and at exploiting the natural resources of the same parties, in exchange of a financial compensation.

The first agreement adopted between the parties is the EU-Morocco Association Agreement that is in force since 2000. It forms the legal basis of the relations between the EU and its North African neighbour. It sets out in detail the specific areas in which the Barcelona Process objectives can be developed bilaterally. Among the other goals pursued, the Agreement envisages the development of a Euro-Mediterranean free trade area.

In July 2005, Morocco has signed with the European Union an action plan in the framework of the European Neighbourhood Policy, which includes priorities and objectives for cooperation in the political, economic and commercial spheres. This Action Plan facilitates the implementation of the instruments provided for in the Association Agreement between the EU and Morocco and fosters the economic integration with Morocco. Following this Action Plan, a number of agreements have been concluded: amongst the most important is the one entered into force in 2007 establishing a partnership for fishery products, that recalls previous agreements 5 .

Recently, Morocco has applied for the granting of the Advanced status. Morocco is the first country in the southern Mediterranean region which could benefit from the Advanced status in its relations with the EU. The status paves the way to gradually integrate Morocco into EU policies, to deepen free trade agreements by the establishment of a common economic area based on the rules applicable to the European Economic Area and by expanding the free trade agreement to new areas such as intellectual property rights, capital movements and sustainable development 6 .

None of the aforementioned agreements specifies whether the territory of Western Sahara falls within their scopes of application. This differs from the attitude adopted by other international actors. For instance, the Free Trade Agreement between United States and Morocco explicitly excludes Western Sahara.
In order to ascertain whether these agreements are applicable to the territory of Western Sahara the only way is to refer to the principles of international law concerning the interpretation of treaties as set out in the Vienna Conventions on the Law of Treaties and by international customary law 7  . Between these principles, practice plays a central role given the fact that other criteria are of very difficult application.

One could take for example the EU-Morocco fisheries partnership agreement (FPA) 8 .
The text of the agreement establishes that the agreement is applicable to the territories under the sovereignty or jurisdiction of Morocco. While the term sovereignty is clear, the term jurisdiction is not. It may make reference to the exclusive economic zone or any other territory on which Morocco has not full sovereignty, but on which it exercises some form of control, including Western Sahara.
Acting upon request of the Development Committee, the legal service of the European Parliament claimed that the agreement does neither include nor exclude the waters of Western Sahara and discharged on the Moroccan authorities the duty to apply the agreement in compliance with the obligations deriving from international law 9 .
This position cannot be accepted, because the EU itself plays a central role in the execution of the agreement. For instance, the applications for licenses are submitted to the competent Moroccan authorities by the relevant EU authorities on behalf of the individual ship-owners and the same licenses are delivered to the EU delegation in Morocco. Therefore, not only the practice of Morocco is relevant, but also the practice of the European Union.
Indeed, if one looks at the current practice about the implementation of the agreement, it seems that the agreement itself is intended to include the territory of Western Sahara 10 .

What has been said for the EU-Morocco fisheries partnership agreement could be said, mutatis mutandis, for the other treaties concluded by the European Union and Morocco. So, the most convincing conclusion is that the territory of Western Sahara is always included in the scope of application of these treaties.

However, as we will see, the fact that the territory is included or not in the agreements is not always a decisive factor. It depends on the nature of the obligation in question.

3.2. The problems raised

The relationship described above raises a number of problems under international law. For the sake of clarity, a distinction should be drawn between the obligations which fall down to the EU from general international law and those traceable to the framework of the bilateral relationship with Morocco.

3.2.1. Obligations stemming from general International Law

As far as obligations coming from general international law are concerned, it is important to establish whether the territory of the Western Sahara is included or not in the above mentioned agreements. This is because general international obligations arise for the EU only if the situation of violation is included in the agreements.

Three grounds deserve special attention.

The first ground relates to the capacity of Marocco to conclude international agreements on behalf of Western Sahara. In fact, the EU should ask to itself whether Morocco has that legal capacity or not.
Within the EU, the problem seems to be avoided through a “re-qualification” of the status of Morocco vis-à-vis Western Sahara. In fact, while some continue to qualify Morocco as an occupying country, others attempt other qualifications such as de facto administering power or administrative power or, even, as administering power tout-court 11.
These qualifications reveal a misunderstanding of the very principles concerning decolonization, if not a will to manipulate the reality of history for other purposes. In fact, all the available evidence indicates that Morocco is an occupying power  .
However, this does not seem the real problem. According to international law, even an administering power has no the right to conclude an agreement on behalf of the territory under administration once the process of decolonisation has begun or, at least, acquired an international relevance. This has been stated by the International Arbitration Tribunal in the case Guinea-Bissau v. Senegal and seems to correspond largely to international customary law 13 .
Looking at the history of Western Sahara, it is out of the question that the agreements between Morocco and the EU have been concluded once the process of decolonisation has acquired an international relevance in the sense specified by the Arbitration Tribunal.

The second ground relates to the respect of the obligation not to recognise international illegal situations.
As it is well known, this is an obligation deriving from international customary law and codified by the International Law Commission in the Draft Articles on Responsibility of States for Internationally Wrongful Acts. According to that obligation, any international subject should not recognize as lawful a situation created in breach of international law, at least when this breach is serious and concerns international rules of a peremptory character 14 . As clarified by the Special Rapporteur Crawford, the “attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples” is such a breach  15.
The obligation not to recognise international illegal situations encompasses also the so called implicit recognition. As the International Court of Justice has stated, the conclusion of bilateral agreements may gives rise to such an implicit recognition. Therefore, the conclusion of bilateral agreements is not allowed under international law, the only exception being when the absence of recognition could deprive the people of the advantages or benefits of the international cooperation 16 .
The practice of the EU in the field of bilateral agreements with Morocco seems not only in breach of the above mentioned obligation, but also inconsistent with the practice that the EU has developed in similar situations. One may recall the Association agreement concluded with Israel which is not applicable to the importations of goods from the Occupied Palestinian Territories (OPT) and the Association agreement with Cyprus, not applicable to Northern Cyprus albeit only after a judgment of the European Court of Justice 17 .

The third legal ground relates to the obligation to respect the principle of sovereignty over natural resources. Of course, this ground comes into play for agreements which imply the explotation of the resources in Western Sahara, such as the mentioned EU-Morocco FPA 18 .
As has been said, the EU may not discharge its responsibility under these agreements by holding that only Morocco is responsible for their application in accordance with international law. In fact, also the EU plays an important role in their implementation 19  and, more generally, an agreement can hardly be implemented without the cooperation of both parties. Therefore, the EU has the same responsibilities of Morocco as far as its cooperation in the implementation of the agreement is concerned.
However, the principle of sovereignty over natural resources does not prevent per se the conclusion of international agreements on behalf of a people under occupation. Nevertheless, two conditions must be met: the agreement shall be concluded in accordance with the interests and the will of the people. Both elements (interests and will) must both be present at the same time 20 .
The need for both elements corresponds to general international customary law as confirmed by many United Nations General Assembly resolutions on the matter 21 , the practice 22  and finally recognized by the UN legal service in a well-known opinion requested by the President of the United Nations Security Council in 2001 23 .
If concluded in the interest of the people 24 , the FPA and other similar agreements are certainly not concluded in accordance with their will, as the representatives of Saharawi people have often explained to the EU relevant authorities.

3.2.2. Obligations assumed in the framework of bilateral relationships

The bilateral agreements in force between the EU and Morocco are generally based on the so-called democratic or essential clause. This clause states that the respect, among other things, of human rights constitutes an essential element of the agreement. This implies that if a serious and persistent breach of human rights occurs, this is to be considered as a substantial violation of the agreement. Therefore, the other party is authorised to suspend or extinguish the violated treaty 25 .

In order to implement the clause, the following two points must be taken into consideration.
First of all, the obligation to respect human rights concerns not only the territory of the State, but also any other territory occupied or controlled by a State on its own motion and effectively 26 . As specified by the High Commissioner for Human Rights (OHCHR), this obligation is without prejudice of the status of the territory concerned 27 .
Secondly, the clause is applicable on an objective basis, i.e. whenever a contracting party could be considered responsible for a violation of the essential elements included in the clause, even if the object of the agreement is completely unrelated to the breach. In other words, it is not necessary to show that the agreement is applicable to the Western Sahara. It is enough to show that Morocco is internationally responsible for the violation of the clause in question.

Now, many important violations of human rights have been found by international organs for the protection of human rights in Western Sahara 28 . As the OHCHR has recognized in its report adopted in 2006, almost all these violations stem from the non-realization of the right of self-determination which is in turn a human right protected by both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights  29.

In light of the above, there are very few reasons which may justify the fact that the EU does not take into consideration the application of the clause in its relationships with Morocco. As already stressed, the fact that these violations happen outside the territory of Moroccan sovereignty is not a justification according to international law of human rights. At the same time, it is not necessary to show that the territory of Western Sahara is included in the agreement.
The problem is that the EU seems to apply the democratic or essential clause in a quite inconsistent way. In particular, looking at the practice, the EU seems more keen to apply the democratic clause in cases where internal rather external self-determination is at stake 30 .

3.3. A shared responsability of the European Union and its Member States

The violations mentioned above imply the responsability of both the EU and of its Member States under international law.

As far as the EU is concerned, there are no grounds to claim a different status of the European Union with respect to its Member States. In fact, the EU is an autonomous international subject. This concerns not only the obligations directly assumed by the EU, but also the obligations imposed by general international law.

At the same time, the action of the EU implies the responsability of its Member States. Although the issue of responsibility of the latters’ liability for actions of international organisations is still controversial and currently under codification in international law, there is room enough for affirming that Member States continue to bear either a so called subsidiary responsibility, at least in some fields, or a separate responsibility for acts adopted autonomously within the intergovernmental bodies of the organisation, as it occurs with the expression of their vote in the intergovernmental Council 31.
________________________
∗Paper presented at the Conference organised by the South African Departement of Foreign Affairs, on Multilateralism and International Law with Western Sahara as a Case Study, Pretoria, South Africa, 4-5 December 2008.

  1.  For comprehensible reasons, the European Commission keeps itself out of the political scene as such. This does not  mean that its role is without political implications, for instance in the process of negotiation of agreements. See below.
  2. Texts adopted by the European Parliament, March 1989, Doc. A2-374/88 of 15 March, 1989, pp. 20 ff. Since then, the EP has adopted a number of resolutions or declarations with more or less the same content, but not always with an express reference to the right of self-determination of the Saharawi people (see for instance resolution P6_TA(2005)0414). However, this positive attitude does not prevent the EP to `blow hot and cold', as it happens almost every time the EP is asked to approve agreements with Morocco. See below.
  3. For a general overview, see J.Vaquer I Fanés, The European Union and the Western Sahara Conflict: Managing the Colonial Heritage, in European Foreign Policy in an Evolving International System, The Road towards Convergence,  N. Casarini, C. Musu (ed.), 2007, pp. 144 ss.
  4. As it is well known, the Barcelona Declaration of 1995 is the founding document of the Euro-Mediterranean Partnership (EMP).
  5. European Commission, 3 April 2008, COM (2008) 164, Implementation of the European neighbourhood policy in 2007; European Neighbourhood and Partnership Instrument – Morocco Strategy Paper 2007 - 2013.
  6. Commission Européenne, Déclaration de l'Union européenne Septieme Session du Conseil d’Association UE-Maroc, Luxembourg, le 13 octobre 2008, DG E V, n. 13653/08.
  7. The Vienna Convention relevant in this case would be the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986, not yet in force and not ratified neither by Morocco nor by the UE. However, on the point at issue, the 1986 Vienna Convention largely corresponds to the Vienna Convention on the Law of Treaties of 1969 and to international customary law.
  8. Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco, Council Regulation (EC) n. 764/2006, 22 May 2006, in Official Journal of the European Union, L 141, 2006, p. 1 ff.
  9. Legal Opinion of the Legal Service of the Parliament, Doc. SJ-0085/06, 20 February 2006. Despite its confidential character, the Opinion was originally available on the net, but has already been removed. For large passages of the Opinion, see E. Milano, The new Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco: Fishing Too Far South?, in Anuario Español de Derecho Internacional, 2006 and in http://eng.gees.org.
  10. In fact, the present practice is not different from the previous one adopted in the implementation of the earlier fisheries agreements: see Western Sahara Resource Watch (WSRW), EU Commission admits fishing in occupied Western Sahara, in Archive 2008, www.wsrw.org, last consulted December 2008.
  11. The qualification as de facto administering or administrative power mainly comes from the Opinion of the Legal Service of the European Parliament, cit., and from the EU Commissioners, while the qualification as administering power tout-court comes from national politicians, especially Spanish. On the matter, C. Ruiz Miguel, El acuerdo de pesca UE-Marruecos o el intento español de considerar a Marruecos como “potencia administradora” del Sahara Occidental, in http://www.umdraiga.com; P. San Martin, EU-Morocco Fisheries Agreement: The Unforeseen Consequences of a Very Dangerous Turn, in Grupo de Estudios Estratégicos GEES, 2006, in http://eng.gees.org.
  12.  For a general and deep overview, J. Soroeta Liceras, El conflicto del Sahara Occidental, reflejo de las contradicciones y carencias del Derecho internacional, Bilbao, 2001.
  13. Arbitration Tribunal for the Determination of the Maritime Boundary, Decision of 31 July 1989, Guinea-Bissau v. Senegal, RIAA (vol. XX), par. 40 ff.. The Tribunal specified also that the above mentioned principle cannot be inferred from the right to self-determination, but from the principle of effectiveness and the rules governing the formation of States in the international sphere, has not character of a rule of jus cogens and is applicable only when the activity of the national liberation movement has “acquired an international impact”.
  14. In the words of art. 41 par. 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, “no State shall recognize as lawful a situation created by a serious breach within the meaning of article 40”, i.e. a serious breach of “an obligation arising under a peremptory norm of general international law”.
  15. Report of the International Law Commission, 53rd session, 2001, pp. 287 ff., italic of the author. According to E. Milano, The doctrine(s) of non-recognition: theoretical underpinnings and policy implications in dealing with de facto regimes, 2007, in http://www.esil-sedi.eu/fichiers/en/Agora_Milano_060.pdf, the obligation of not recognition should arise also in the absence of the peremptory character of the breached norm.
  16.  16) ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia not-withstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports, p. 56.  See also, ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, par. 154 ff.
  17. 1 ECJ, case C-432/92, Anastasiou I (1994) ECR I-3087. Doubts on the exact meaning of this practice are expressed by E. Milano, The new Fisheries Partnership, cit., par. 6.
  18. See above.
  19. See above for the FPA, not to mention the fact that all the vessels involved come from the EU.
  20. By contrast, many actors at Community level seem to believe that just one of them (interests or benefit) must be present, included the legal service of the EP: see the Opinion cit. above.
  21. Since 1995, the General Assembly has affirmed “the value of foreign economic investment undertaken in collaboration with the peoples of Non-Self-Governing Territories and in accordance with their wishes in order to make a valid contribution to the socio-economic development of the Territories”: Res. 50/33 of 6 December 1995, par. 2, on Economic and other activities which affect the interests of the peoples of the Non-Self-Governing Territories, annually reiterated.
  22. Although scarce.
  23. UN Security Council, Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council, S/2002/161, 12 February 2002. The request concerned the stipulation of contracts between the Moroccan authorities and foreign companies and not the stipulation of agreements between subjects of international law. However, the Opinion is based largely on the practice between States. As a result, there is no reason for denying the applicability of its conclusions also to agreements between States. Although it generally says that the principle of sovereignty over natural resources is violated if exploitation is in disregard of the interest and wishes of the people, at par. 24 the Opinion says that resource exploitation activities in Non-Self-Governing Territories should be conducted “for the benefit of the peoples of those Territories, on their behalf or in consultation with their representatives”. This last sentence, which seems in contradiction with the rest of the text, could not be accepted. It is almost impossible to determine on an objective basis what is the benefit or interest of a people. Only the will of the people concerned could determine its own interest or benefit. So the two requirements are strictly interconnected and must be present at the same time.
  24. Which remains to be shown.
  25. See art. 60 Vienna Convention on the Law of Treaties.
  26. International Court of Justice (ICJ), 9 July 2004, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, par. 102 ff.; European Court of Human Rights (ECHR), 18 December 1996, Loizidou v. Turkey. As it is well known, the responsibility of a State for its extraterritorial presence may have a different answer in different contexts, for instance, in the context of a mission sent or authorized by an international organisation (see for instance, ECHR, 15 November 2006 and 2 May 2007, Behrami v. France and  Saramati v. France, Germany and Norway). By contrast, it seems quite undisputed that a State is fully responsible when it controls effectively a territory as a result of a decision taken on its own, as in the case of Morocco for Western Sahara.
  27. See OHCHR, Report of the OHCHR Mission to Western Sahara and the Refugee Camps in Tindouf - 15/23 May and 19 June 2006, Geneva, 8 September 2006, par. 11: the assessment of violations on the basis of international law on human rights binding an occupying State should not be “interpreted as constituting a position vis-à-vis the status of the territory according to international law or attributing any legitimacy to claims of sovereignty, but rather constitutes an evaluation of the de facto enjoyment of human rights by the people” of the territory concerned .
  28. See for instance OHCHR, Report of the OHCHR Mission to Western Sahara, cit.
  29. OHCHR, Report of the OHCHR Mission to Western Sahara, cit., par. 9 and 52.
  30. For a general overview on the matter, see L. Ficchi, Il contributo dell'Unione europea all'affermazione dello stato di diritto nella Comunità internazionale, Phd Thesis, University of Bologna, 2008; A. Karmous, Les enjeux des ressources halieutiques du Sahara Occidental, Fondation France Libertés, 23 octobre 2002, in http://membres.lycos.fr/tomdsm/analyses.html, p. 8 ff., wondering whether the essential clause is just a style clause.
  31. G. Gaja, Second Report on Responsibility of Intern
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