Non-Recognition and Denial of Self-Determination in the Case of Western Sahara: Recent Developments in International Law
By Dr. Clive Symmons, Trinity College Dublin | csymmons@tcd.ie
Introduction
After the withdrawal of Spanish colonial forces in 1975, Western Sahara did not gain independence, but was occupied by Morocco following a war between Morocco, Mauretania and the pro-independence Polisario Front. This occupation is illegal under international law, violating the erga omnes right to self-determination of the Sahrawi people and being based, ultimately, on the use of force. The United Nations Security Council (hereafter ‘SC’) has called on Morocco to withdraw from the territory, though to no avail; meanwhile, the General Assembly (‘GA’) has effectively branded Morocco an illegal occupier.
Inadequate Reponses to the Occupation
While it should be noted that no state has officially recognised Moroccan sovereignty over Western Sahara, the reaction of many members of the international community has been far less decisive in practice, particularly in the ambit of trade. This can be observed, for example, in free trade agreements (‘FTAs’) and Fishery Partnership Agreements (‘FPAs’) between the EU and Morocco, which I believe violate international law in themselves, something the EU seems to have recognised in the recent Frente Polisario case.
These agreements are illegal first and foremost because they neglect the duty of non-recognition of the unlawful status quo. The SC has, lamentably, not passed a motion requiring UN Member States not to recognise the occupation as legitimate. However, the existence of this duty under customary international law was established in the ICJ’s Advisory Opinion on the Construction of the Wall (as well as in the Advisory Opinion on Namibia) because recognition of the status quo would violate the right to self-determination of the people of the occupied territories, which is enforceable erga omnes. Furthermore, recognition would serve as tacit acceptance of the use of force, the prohibition of which is ius cogens. As has been aptly said, non-recognition ‘remain[s] an important sanctioning tool to lead [illegally occupied] territories back into the international community’, and should not be undermined.
It should be noted that, as established in the Case concerning Armed Activities on the Territory of the Congo, the right to self-determination encompasses a further right to permanent sovereignty over a nation’s natural resources. Unfortunately, the aforementioned FTAs and FPAs violated exactly that. Phrased in such a way that avoided the issue of Western Sahara altogether (for example, in the case of the FPAs, referring to waters ‘under the jurisdiction or sovereignty’ of Morocco), they created a backdoor through which the contracting parties could deal with Western Sahara’s abundant natural resources while the EU could maintain the appearance of not affording official recognition to the occupation.
The Corell Opinion
The question of whether agreements such as the EU FTAs and FPAs with Morocco were legal was addressed by the Corell Opinion, requested by the SC. Unfortunately, the Corell Opinion addressed a much narrower question on the matter; rather than focusing on the duty of non-recognition per se, it took a more ‘human rights’ approach. Namely, it held that the inhabitants of the disputed territory should gain from exploitation of their natural resources stemming from FTAs and the like. The effect of this Opinion is that such agreements are only illegal if they disregard ‘the needs and interests of the people of that territory.’ This doctrine was criticised by the General Court in its judgment in the Frente Polisario case, although it had been frequently cited by the EU upon agreeing FTAs and FPAs with Morocco.
The Court ruled against the Council, judging that it should have carried out a fair and impartial analysis of whether the people of Western Sahara were actually involved in the decision-making process of the FTAs and FPAs, and whether they actually benefited from it. It pointed out the unworkability of simply leaving this assessment to the occupying state (Morocco), as the ‘benefits’ test could simply be used as a way to conduct agreements while paying lip-service to the ideal. The decision was later overturned on issues of standing, but the Grand Chamber actually went further in criticising the Corell Opinion. As a result of the Grand Chamber’s judgment, future trade agreements with Morocco will only be able to apply to the territory of Morocco proper.
Compulsory Origin Labelling: an Alternative?
It seems clear that an internationally-developing ‘back-up practice’ to an international rule of non-recognition is coming into being, particularly in the EU context: namely, for compulsory labelling of products emanating from an illegal occupier’s territory as such indicating precise territorial origin. While this regime could originally have been described as not much more than consumer-notifying measure and a symbolic attempt at showing that the EU did not recognise the Israeli occupation of Palestine and the occupied territories, in recent years the EU has given the policy teeth - goods from Crimea cannot be imported into the Union unless accompanied by Ukrainian certificates, and Western Saharan products are, since the Grand Chamber’s judgment in the Frente Polisario case, also banned under the EU-Moroccan FTA. However, there is another major issue that remains, in that there is no way of objectively verifying which goods are from the disputed territories, as it is all too easy for the occupying country (or exporters from that country) to falsify matters. In other words, to use a homely analogy, ‘a fox cannot be left to guard the chickens.’
Outlook
In conclusion, international response to the Western Sahara issue has been problematic. The Corell Doctrine is not only unworkable, but does not comply with the duty of non-recognition as it fails to address the issue of such occupations being invariably the result of the use of force. The EU response has, until recently, been rather inconsistent across the situations of 1) the Israeli occupation of the West Bank, 2) Russian annexation of Crimea and 3) the Western Sahara case, although the recent recognition of that fact in a 2015 Report was, at least, a first step in rectifying that problem. The Report, however, did revert back to the Corell test, though it stated that the status quo did not fulfill the requirements. Thankfully, the ECJ’s decision to completely ban Western Saharan goods from coming under the EU-Morocco FTA goes much further in implementing the EU’s non-recognition obligation. The outlook for the future is mixed: while it is hard to imagine a workable, concrete solution on a worldwide scale until the Corell test is completely scrapped, there is, at least in the EU context, significant progress being made.
Dr. Clive Symmons has taught international law at both UK and Irish Universities and has published widely on international legal issues. He is currently a Visiting Research Fellow at Trinity College, Dublin and was formerly an Adjunct Professor in Law at NUI, Galway. He has recently presented papers at IPJET conferences on the Western Sahara issue in The Hague and Groningen, and will shortly be speaking on the matter in Lisbon. In addition, Dr Symmons has presented past conference papers on issues relating to non-recognition in the case of East Timor at the IPJET conference in Dublin in 1996 [now published in P. Pinto Leite (ed.), The East Timor Problem and the Role of Europe] and also at the Dublin conference on Timor-Leste [published as chapter 11 in William Binchy (ed), Timor- Leste: Challenges for Justice and Human Rights in the Shadow of the Past].