University of Bologna
EU’S APPROACH TOWARDS WESTERN SAHARA
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,
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
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
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
- 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.
- 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.
- 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.
- As it is well known, the Barcelona Declaration of 1995 is the
founding document of the Euro-Mediterranean Partnership (EMP).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- 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
obligation of not recognition should arise also in the absence of the
peremptory character of the breached norm.
- 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
- 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.
- See above.
- See above for the FPA, not to mention the fact that all the
vessels involved come from the EU.
- 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.
- 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.
- Although scarce.
- 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.
- Which remains to be shown.
- See art. 60 Vienna Convention on the Law of Treaties.
- 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.
- 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 .
- See for instance OHCHR, Report of the OHCHR Mission to Western
- OHCHR, Report of the OHCHR Mission to Western Sahara, cit., par.
9 and 52.
- 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.
- G. Gaja, Second Report on Responsibility of Intern
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