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

  • Pål Wrange (a1)

Abstract

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

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Footnotes

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This article was presented in early draft form at the Minerva Center's (Hebrew University and Tel Aviv University) Conference ‘50 Years after 1967: Evaluating the Past, Present and Future of the Law of Belligerent Occupation’, Tel Aviv, 23 May 2017. Material from the text was also presented at the panel discussion ‘Analysing the Western Sahara Campaign Case’, Queen Mary University of London, 3 May 2018. I would like to thank the participants for valuable comments. I would also like to extend a warm thank you to the editors and reviewers of the Israel Law Review for extensive and very useful comments. I was confronted with the Western Sahara issue between 1996 and 2007 as a legal adviser to the Swedish Ministry for Foreign Affairs, and since I resigned from the foreign service in 2010 I have frequently presented my views on that conflict, usually at the request of parties critical of the Moroccan regime in the territory. I have, however, never been affiliated with any of the stakeholders involved with the situation.

Footnotes

References

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1 Case T-512/12 Council of the European Union v Front Populaire pour la liberation de la saguia-el hamra et du rio de oro (Front Polisario) Judgment, 10 December 2015, ECLI:EU:T:2015:953, [228].

2 Western Sahara Campaign UK v Commissioners for Her Majesty's Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs [2015] EWHC 2898 (Admin) (Western Sahara). The reference mechanism enables national courts to question the Court of Justice on the interpretation or validity of EU law.

3 As will be explained, both judgments were in fact favourable for Polisario, since they confirmed that Western Sahara is not a part of Morocco and that Morocco cannot contract freely on behalf of Western Sahara.

4 Case C-104/16 P Council of the European Union v Front Populaire pour la liberation de la saguia-el hamra et du rio de oro (Front Polisario), Judgment, 21 December 2016, ECLI:EU:C:2016:973 (Polisario 2016); Case C-266/16 Western Sahara Campaign UK v Commissioners for Her Majesty's Revenue and Customs, and Secretary of State for Environment, Food and Rural Affairs, Judgment, 27 February 2018, ECLI:EU:C:2018:118 (Polisario 2018).

5 See Bhuta, Nehal, ‘The Antinomies of Transformative Occupation’ (2005) 16 European Journal of International Law 721; Arai-Takahashi, Yutaka, ‘Preoccupied with Occupation: Critical Examinations of the Historical Development of the Law of Occupation’ (2012) 94 International Review of the Red Cross 51, 56, 7475 and passim. See also Benvenisti, Eyal, The International Law of Occupation (2nd edn, Oxford University Press 2012) 41. cf Oppenheim, Lassa, ‘Legal Relations Between an Occupying Power and the Inhabitants’ (1917) 33 Law Quarterly Review 363, 363 (‘The literature on the subject is to a great extent obscure, and the echo of the former rule that the occupant at once becomes the sovereign of the occupied territory resounds more or less distinctly in the writings of many publicists’).

6 Arai-Takahashi, ibid 56 and passim; see also Benvenisti, ibid 21ff.

7 Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461 (Hague IV).

8 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV).

9 There are several good recounts of this history. A recent, and very thorough example, is Saul, Ben, ‘The Status of Western Sahara as Occupied Territory under International Humanitarian Law and the Exploitation of Natural Resources’ (2015) 27 Global Change, Peace and Security 301, which can serve as a default reference for this brief history: see, in particular, 305–07; see also Zunes, Stephen, ‘Western Sahara, Resources, and International Accountability’ (2015) 27 Global Change, Peace & Security 285; Smith, Jeffrey J, ‘The Taking of the Sahara: The Role of Natural Resources in the Continuing Occupation of Western Sahara’ (2015) 27 Global Change, Peace & Security 263. Smith is a prolific writer on the Western Sahara issue. The cited issue of Global Change, Peace and Security (27(3)) was devoted to Western Sahara and natural resources. Another recent and good article, cited by the UK High Court (see below), is Dawidowicz, Martin, ‘Trading Fish or Human Rights in Western Sahara’ in French, Duncan (ed), Statehood and Self-Determination (Cambridge University Press 2013) 250.

10 UNGA Res 2229 (XXI), Question of Ifni and Spanish Sahara (20 December 1966).

11 UNGA Res 3292 (XXIX), Question of Spanish Sahara (13 December 1974).

12 Western Sahara, Advisory Opinion [1975] ICJ Rep 12, 68 [162].

13 UNSC Res 380 (6 November 1975), UN Doc S/RES/380.

14 UNGA Res 34/37 (21 November 1979), Question of Western Sahara, UN Doc A/RES/34/37.

15 UNSC Res 658 (27 June 1990), UN Doc S/RES/358; UNSC Res 690 (29 April 1991), UN Doc S/RES/690.

16 Benabdallah, Karima, ‘The Position of the European Union on the Western Sahara Conflict’ (2009) 17 Journal of Contemporary European Studies 417, 420.

17 Zunes (n 9) 297.

18 This is standard language of the Security Council quoted from UNSC Res 2414 (27 April 2018), UN Doc S/RES/2414, preambular para 4. See further Report of the Secretary-General on the Situation concerning Western Sahara (29 March 2018), UN Doc S/2018/277, paras 17–31, 77–90.

19 See Pål Wrange and Sarah Helaoui, ‘Occupation/Annexation of a Territory: Respect for International Humanitarian Law and Human Rights and Consistent EU Policy’, Report for the European Parliament, 25 June 2015, http://www.europarl.europa.eu/thinktank/en/document.html?reference=EXPO_STU(2015)534995.

20 See further, Arts, Karen and Leite, Pedro (eds), International Law and the Question of Western Sahara (International Platform of Jurists for East Timor 2007).

21 For the latest annual report see Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples for 2017 (11 July 2017), UN Doc A/72/23.

22 UNGA Res 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (24 October 1970).

23 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR); International Covenant on Economic, Social and Cultural Rights (entered into force 3 January 1976) 993 UNTS 3 (ICESCR).

24 UNGA Res 2625 (XXV) (n 22).

25 On the term ‘people’, see briefly n 109.

26 The UN Charter also mentions self-government as an option, but in practice the goal has generally been independence: Charter of the United Nations (entered into force 24 October 1945) 1 UNTS XVI, art 76.

27 The UN list of non-self-governing territories does not indicate an administering power for Western Sahara but notes the following: ‘On 26 February 1976, Spain informed the Secretary-General that as of that date it had terminated its presence in the Territory of the Sahara and deemed it necessary to place on record that Spain considered itself thenceforth exempt from any responsibility of any international nature in connection with the administration of the Territory, in view of the cessation of its participation in the temporary administration established for the Territory. In 1990, the General Assembly reaffirmed that the question of Western Sahara was a question of decolonization which remained to be completed by the people of Western Sahara’: ‘The United Nations and Decolonization: Non-Self-Governing Territories’, http://www.un.org/en/decolonization/nonselfgovterritories.shtml. It is highly doubtful that Spain could avoid responsibility in this way.

28 Saul (n 9) 315–16.

29 Zunes (n 9) 288.

30 Saul (n 9) 309–15. One could also make the argument that the conflict between Polisario and Morocco is an international conflict. Polisario is clearly a national liberation movement involved in a war of national liberation under art 1(4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I) (entered into force 7 December 1978) 1125 UNTS 3. Morocco became a party to the Protocol in 2011 and Polisario filed a declaration under art 96(3) Additional Protocol I in 2015, bringing the Conventions and the Protocol into immediate effect: Saul (n 9) 304. However, I strongly doubt that that can have a retroactive effect in so far as the initiation of a state of occupation is concerned. It is not necessary to settle that issue here, since the status of Western Sahara as an occupied territory is clear in my mind.

31 UNGA Res 2625 (XXV) (n 22).

32 See GC IV (n 8) art 47.

33 UNGA Res 34/37 (n 14), and UNGA Res 35/19 (11 November 1980), Question of Western Sahara, UN Doc A/RES/35/19.

34 Neither the fact that Spain stopped resisting the armed activities of Morocco nor the fact that the territory is claimed by no state other than Morocco prevents that conclusion: see Polisario 2018 (n 4) Opinion of the Advocate General, 10 January 2018, ECLI:EU:C:2018:1, 67, and the magnificent footnote 223 (Advocate General 2018).

35 Additional Protocol I (n 30) does not contain an end date but the application of some of the provisions of GC IV ends after one year according to GC IV (n 8) art 6.

36 Hague IV (n 7). The Convention was drafted in French, which is its only official language. The most common English translation uses the expression ‘public order and safety’, which is a rather poor translation of ‘l'ordre et la vie publics’. I subscribe to the expression ‘public order and civil life’, which is the expression used by Benvenisti (n 5).

37 The debate on so-called transformative occupation, prompted by the US-led coalition's occupation of Iraq, has been intense, but will not be visited here. Suffice it to say that there is overwhelming scholarly support for the position that the old rules remain.

38 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136 (Wall), [106].

39 In the authoritative – but not unchallenged – view of the ICJ, IHL is lex specialis, meaning that IHL trumps human rights in cases of conflict: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, [25]–[26]. See also Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge University Press 2009) 8586. However, it is also possible to see them as complementary: Arai-Takahashi, Yutaka, The Law of Occupation: Continuity and Change of International Humanitarian Law, and Its Interaction with International Human Rights Law (Martinus Nijhoff 2009) 419–22. Some states – like the US and Israel – do not agree that human rights apply outside a state's territory: see generally, Arai-Takahashi, ibid 551–82. While the scope of application varies between different conventions, the established majority view – including that of the ICJ – is that human rights in principle do apply globally: Wall (n 38) [108]–[113]. This is also the view adopted by the European Court of Human Rights: ECtHR, Al-Skeini v United Kingdom, App no 55721/07, 7 July 2011. For my own view, see Wrange, Pål, ‘Intervention in National and Private Cyber Space and International Law’, in Ebbesson, Jonas and others (eds), International Law and Changing Perceptions of Security: Liber Amicorum Said Mahmoudi’ (Brill-Nijhoff 2014) 307, 324–25.

40 Hans Corell, Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council (29 January 2002), UN Doc S/2002/161.

41 Emphasis added. It should also be noted that 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’: UNGA Res 50/33 (6 December 1995), Activities of Foreign Economic and Other Interests which Impede the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples in Territories under Colonial Domination, UN Doc A/RES/50/33, para 2. That resolution has been renewed annually.

42 As Crawford says, ‘[i]t is … generally accepted that the occupier may not use the resources of the occupied territory for its own domestic purposes, but rather must use them “to the extent necessary for the current administration of the territory and to meet the essential needs of the population”’: James Crawford, ‘Opinion: Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories’, 24 January 2012, 25, https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf. The prohibition and criminalisation of pillage is also relevant: see Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005, revised 2009) 182–85. In the Armed Activities case, the ICJ – controversially – found that the principle of permanent sovereignty over natural resources was not relevant to pillage: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment [2005] ICJ Rep 168, [244].

43 Dinstein (n 39) 213–18; see also the extensive discussion in Guy Harpaz and others, ‘Expert Legal Opinion: HCJ 2164/09 Yesh Din – Volunteers for Human Rights v Commander of IDF Forces in West Bank et al (December 26, 2011)’, January 2012, https://s3-eu-west-1.amazonaws.com/files.yesh-din.org/%D7%A2%D7%AA%D7%99%D7%A8%D7%95%D7%AA/%D7%9E%D7%97%D7%A6%D7%91%D7%95%D7%AA/Quarries+Expert+Opinion+English.pdf. This rule makes a distinction between exhaustible and non-exhaustible resources. It is questionable whether the occupying power may use exhaustible resources at all. At any rate, any use is subject to the conditions outlined in the body text.

44 Hague IV (n 7) art 43, as well as a number of provisions in GC IV (n 8) indicate positive obligations for the occupying power, such as arts 50, 55 and 56.

45 See also Dinstein (n 39) 210.

46 See ICJ Wall (n 38) [159]. Although I believe that the opinion was right (in addition to being authoritative), it should be mentioned that it has been criticised. See also International Law Commission, Responsibility of States for Internationally Wrongful Acts, annnexed to UNGA Res 56/83 (12 December 2001), UN Doc A/RES/56/83 (Draft Articles on State Responsibility), art 41.

47 See, in general, Talmon, Stefan, ‘The Duty Not to “Recognize as Lawful” a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?’ in Tomuschat, Christian and Thouvenin, Jean-Marc (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff 2005) 99; Turns, David, ‘The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influence on Contemporary International Law’ (2003) 2 Chinese Journal of International Law 105, 130–43.

48 Talmon appears to be even more categorical: Talmon, ibid 119. See also Tristan Ferraro, ‘Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory’, International Committee of the Red Cross, Expert Meeting Report, 11 June 2012, 59.

49 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion [1971] ICJ Rep 16, [125]. The ICJ went on to say: ‘In particular, while official acts performed by the Government of South Africa … after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory’. Cases in American and British courts suggest likewise, so as not to complicate the life of the current population, as has case law in the European Court of Human Rights: see ECtHR, Cyprus v Turkey, App no 25781/94, 10 May 2001, paras 82–102. See further Enrico Milano, ‘The Doctrine(s) of Non-Recognition: Theoretical Underpinnings and Policy Implications in Dealing with De Facto Regimes’, European Society of International Law, 2nd ESIL Research Forum Conference Paper, 28–29 September 2007; Ralph Wilde, Andrew Cannon and Elizabeth Wilmshurst, ‘Recognition of States: The Consequences of Recognition or Non-Recognition in UK and International Law’, Chatham House, Summary of the International Law Discussion Group Meeting, 4 February 2010; Talmon, Stefan, ‘The Cyprus Question before the European Court of Justice’ (2001) 12 European Journal of International Law 727. GC IV (n 8) art 47 sets out the important principle that ‘[p]rotected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced … by any annexation’.

50 European Commission, ‘European Neighbourhood Policy and Enlargement Negotiations: Morocco’, https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/morocco. The term ‘advanced status’ does not seem to have any independent legal significance, but is a political marker of approval: Iván Martín, ‘EU–Morocco Relations: How Advanced Is the “Advanced Status”?’ (2009) 14 Mediterranean Politics 239.

51 The UK, Austria, Sweden, Finland, Denmark, Cyprus and the Netherlands voted against or abstained.

52 See Pål Wrange and others, ‘Western Sahara and the Protocol to the EU-Morocco Fisheries Partnership Agreement (FPA) of 2013 – A Legal Analysis’, Memo, 2 December 2013, http://www.wsrw.org/files/dated/2013-12-05/western_sahara_fisheries_legal_analysis_2013.pdf.

53 See ‘Legal Opinion: Re Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco – Declaration by the Sharawi Arab Democratic Republic (SADR) of 21 January 2009 of Jurisdiction Over an Exclusive Economic Zone of 200 Nautical Miles off the Western Sahara – Catches Taken by EU-flagged Vessels Fishing in the Waters off the Western Sahara’, 13 July 2009, para 29, http://www.wsrw.org/a105x1346.

54 See Wrange and Helaoui (n 19).

55 In Council of the European Union, ‘EU Annual Report on Human Rights and Democracy in the World in 2013’, 23 June 2014, 198, it is stated, euphemistically, that ‘Western Sahara is a territory contested by Morocco and the Polisario Front’ (emphasis added). That expression, however, had disappeared in the 2015 report: Council of the European Union, ‘EU Annual Report on Human Rights and Democracy in the World in 2015 – Country and Regional Issues’, 20 September 2016, 59. By some contrast, the United States has made it clear, regarding its bilateral free trade agreement, that the designation ‘Morocco’ does not include Western Sahara: Letter of 20 July 2004 from the US Trade Representative, Robert Zoelleck, to Congressman Pitt. The letter is no longer available on the website of the US House of Representatives but can be retrieved at: https://web.archive.org/web/20070906234744/http://www.house.gov/pitts/temporary/040719l-ustr-moroccoFTA.pdf.

56 Corell (n 40) para 1.

57 ibid para 6.

58 ibid para 8.

59 ibid paras 24, 25. A terminological note: In most discourse on occupation, the collective of individuals living under occupation is referred to as a ‘population’. In some situations, where there is a considerable number of colonial settlers from the occupying power, it is necessary to make a distinction between the people and the population; see further n 109.

60 Hans Corell, ‘The Legality of Exploring and Exploiting Natural Resources in Western Sahara’, Western Sahara Conference Proceedings, 5 December 2008, http://www.havc.se/res/SelectedMaterial/20081205pretoriawesternsahara1.pdf.

61 Polisario (n 1). See also n 3.

62 Before that, the Court found that Polisario must be regarded as a ‘legal person’ within the meaning of relevant EU law and therefore had such capacity: ibid [60].

63 ibid [57].

64 ibid [73].

65 ibid [72].

66 ibid [76].

67 ibid [103].

68 ibid [114].

69 ibid [117].

70 ibid [202].

71 ibid [215].

72 ibid [225].

73 ibid [208], [222], [229].

74 ibid [233] and [235] respectively.

75 ibid [235].

76 ibid [238].

77 ibid [241].

78 ibid [247].

79 Western Sahara (n 2).

80 The UK proceedings also involved a claim against the Commissioners for Her Majesty's Revenue and Customs regarding the application of the liberalisation agreement. The original reference from 2016 also covered that agreement, but those questions were withdrawn as they had been answered in the Polisario judgment in 2016. In order to simplify the already complex review, I decided to omit any references to that part of the case. Further, there was a fourth question concerning the standing of Polisario, which is less relevant for the current discussion.

81 Western Sahara (n 2) [28]–[29].

82 As approved and implemented by Council Regulation (EC) 764/2006 of 22 May 2006 on the Conclusion of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco [2006] OJ L 141/1, (2); Council Decision 2013/785/EU of December 2013 on the Conclusion, on behalf of the European Union, of the Protocol between the European Union and the Kingdom of Morocco Setting out the Fishing Opportunities and Financial Contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco [2013] OJ L 349/1, (3); and Council Regulation (EU) 1270/2013 of 15 November 2013 on the Allocation of Fishing Opportunities under the Protocol between the European Union and the Kingdom of Morocco Setting out the Fishing Opportunities and Financial Contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco [2013] OJ L 238/40, (3).

83 He here referred to the article by Dawidowicz (n 9).

84 Western Sahara (n 2) [18].

85 ibid [40].

86 ibid [40].

87 ibid [18].

88 ibid [40].

89 ibid [43].

90 ibid [47].

91 Draft Articles on State Responsibility (n 46).

92 Western Sahara (n 2) [49].

93 Corell (n 60) 242.

94 Western Sahara (n 2) [51]–[53].

95 ibid [55].

96 Polisario 2016 and Polisario 2018 (n 4).

97 Vienna Convention on the Law of Treaties (entered into force 27 January 1980) 1155 UNTS 331 (VCLT). Even if that treaty is not binding on all members of the EU (France is a famous non-party), the relevant rules express customary international law, in the view of the Court. The Court therefore uses terms like ‘the rule expressed in article X’.

98 Polisario 2016 (n 4) [81], [86], [94], [100].

99 ibid [92].

100 VCLT (n 97) art 29: ‘Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory’.

101 Polisario 2016 (n 4) [95].

102 ibid [97]; Polisario 2018 (n 4) [64].

103 Polisario 2016 (n 4) [88].

104 ibid [90].

105 The Advocate General of the Court had even suggested that Spain is still the administering power: Polisario 2016 (n 4) Opinion of the Advocate General, 13 September 2016, ECLI:EU:C:2016:677, 22 (Advocate General 2016).

106 Polisario 2016 (n 4) [98].

107 UNGA Res 34/37 (n 14).

108 Polisario 2016 (n 4) [100], [106].

109 ibid [107]. There is an important distinction between people and population. A ‘people’ is a political unit, with a right of self-determination. It is thus distinct from a population or ‘the inhabitants of a territory’. A population is a group of people who happen to live at the same place. It may consist of a people in the legal sense, but it may also consist of colonialists and settlers. This nomenclature was of some relevance to the cases, but I have omitted that discussion.

110 Polisario 2016 (n 4) [118].

111 ibid [123]. The Advocate General was even more explicit: ‘It is settled case law that the Union must respect international law in the exercise of its powers … “all States are under an obligation not to recognise”’ or ‘“render aid or assistance in maintaining the situation created by”’ an infringement of a jus cogens norm, including the right to self-determination: Advocate General 2016 (n 105) [256]–[258].

112 Polisario 2016 (n 4) [124].

113 Polisario 2018 (n 4) [80]–[83].

114 ibid [72].

115 Polisario 2016 (n 4) [131]–[134].

116 ibid [123].

117 ibid [106].

118 Advocate General 2018 (n 34) [245]–[250].

119 See the Advocate General's invocation of art 49 of CG IV (n 8): Advocate General 2018 (n 34) [283]. Neither the Hague Conventions nor the Geneva Conventions and their Additional Protocols mention any such obligation; nor does the ICRC list of rules under customary IHL: Henckaerts, Jean-Marie, ‘Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’ (2005) 87 International Review of the Red Cross 175, 198212.

120 However, if new treaties covering Western Sahara were to be negotiated, the CJEU would have to pronounce itself on that issue. The Commission has received mandates to renegotiate all the relevant agreements.

121 There were certainly arguments available for that position; there are fairly well-established rules developed for the governance of the natural resources of an NSGT and, further, the courts could have held that a non-self-governing people is in such a vulnerable position that the more benign rule should apply in any event. Please note that I find that in this instance the law relating to NSGTs is more advantageous for the people of Western Sahara. For a useful discussion of the relation between the law of occupation and the law relating to NSGTs, see Kontorovich, Eugene, ‘Economic Dealings with Occupied Territories’ (2015) 53 Columbia Journal of Transnational Law 584, 610–15.

122 It is possible that the High Court thought that the rights of an occupying force can be exercised only if it has been recognised as such or has some other sound legal basis, but if so, that opinion was just alluded to, and not developed: Western Sahara (n 2) [18].

123 While the High Court explicitly stated that Western Sahara was occupied, neither the UN Legal Counsel nor the General Court could have dismissed the law of occupation without analysis, had it been relevant.

124 Corell (n 60) 238.

125 Advocate General 2018 (n 34) [268] (‘The legal regimes applicable to non-self-governing territories and to occupied territories are not mutually exclusive’).

126 See Okowa, Phoebe N, ‘Natural Resources in Situations of Armed Conflict: Is there a Coherent Framework for Protection?’ (2007) 9 International Community Law Review 237. See also Hummelbrunner, Sandra and Pickartz, Anne-Carlijn, ‘It's Not the Fish that Stinks! EU Trade Relations with Morocco under the Scrutiny of the General Court of the European Union’ (2016) 32 Utrecht Journal of International and European Law 19, 29; Longobardo, Marco, ‘State Responsibility for International Humanitarian Law Violations by Private Actors in Occupied Territories and the Exploitation of Natural Resources’ (2016) 63 Netherlands International Law Review 251, 255–56. For a full discussion of the relation between the law of occupation and trusteeship, see Wilde, Ralph, ‘From Trusteeship to Self-Determination and Back Again: The Role of the Hague Regulations in the Evolution of International Trusteeship, and the Framework of Rights and Duties of Occupying Powers’ (2009) 31 Loyola of Los Angeles International and Comparative Law Review 85.

127 See Arai-Takahashi (n 5) 68.

128 Of course, this is not without exception: the US and Israel are two prominent dissidents.

129 UN Charter (n 26) art 73.

130 As for the human rights treaties, their territorial scope of application may be limited, but the presumption is that they are not: Joseph, Sarah and Castan, Melissa, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, Oxford University Press 2013) 93. However, customary human rights apply universally.

131 cf the discussion at n 146.

132 The High Court, the General Court and the Legal Counsel said so explicitly, while the Court of Justice found that the agreements did not cover Western Sahara because the people had not consented to that: Polisario 2016 (n 4) [106].

133 For sure, one can categorise self-determination as a human right, and its inclusion in the 1966 Covenants (ICCPR and ICESCR (n 23)) certainly suggests that. However, it has not been conceptualised as an individual right, so the difference is relevant.

134 Some scholars have transformed this into an entitlement to democracy: see Fox, Gregory H and Roth, Brad R (eds), Democratic Governance and International Law (Cambridge University Press 2000) and, in particular, Thomas M Franck's seminal ‘Legitimacy and the Democratic Entitlement’, in Fox and Roth, ibid 25–47; Cassese, Antonio, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press 1995) 53, 310 and passim. See also Hannum, Hurst, ‘Rethinking Self-Determination’ (1993) 34 Virginia Journal of International Law 1, 34 and passim.

135 See Wall (n 38) [122], cf with [118]. See also Daniel Thürer and Thomas Burri, ‘Self-Determination’, Max Planck Encyclopedia of Public International Law’, December 2008, para 34.

136 Hence, I am not sure that the interpretation given by Judge Higgins in her separate opinion is the most plausible one: Wall (n 38) Separate Opinion of Judge Higgins, [30].

137 Wall (n 38) [88].

138 Covenant of the League of Nations (entered into force 10 January 1920) (1920) 1 League of Nations Official Journal 3.

139 The Court went on to state that ‘[t]hese developments leave little doubt that the ultimate objective of the sacred trust’ referred to in the Covenant of the League of Nations, ibid art 22, para 1, ‘was the self-determination … of the peoples concerned’: Namibia (n 49) [53]. The Court used the word ‘occupation’ to characterise the South African presence ([118]–[119]) as well as in the dispositif. See also Wall (n 38) [172].

140 Gross, Aeyal, The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge University Press 2017) 28, 165.

141 Benvenisti (n 5) 6–7.

142 Crawford (n 42) 12. See also Gross (n 140) 18 (‘Sovereignty is vested in the population under occupation’); Arai-Takahashi (n 5) 68.

143 On the concept of trusteeship in these two contexts, see Wilde (n 126). The genealogy of the use of the word ‘trust’ in occupation discourse would be an interesting project in itself. While it was a crucial concept from the start in the law relating to NSGTs, it seems to have seeped gradually into the law on occupation. Dinstein ((n 39) 36) opposes the use of the concept, but it is used by Roberts (Roberts, Adam, ‘What is a Military Occupation?’(1985) 55 British Yearbook of International Law 249, 259). One of the earliest uses is no doubt that of Arnold Wilson, who even used the term ‘sacred trust’ – although in the context of the occupation of Iraq after the First World War, which preceded the creation of the Mandate of Iraq under the League of Nations regime: Arnold Wilson, ‘The Laws of War in Occupied Territory’(1932) 18 Transactions of the Grotius Society 17, 29. Note that there is a difference between being a trustee of public property, as provided for in art 55 of the Hague IV Regulations (n 7), and being a trustee of the political and legal order, as provided for in, eg, art 43, and that usage of the word ‘trustee’ in the context of occupation may not necessarily cover both aspects.

144 Benvenisti (n 5) 79–80. Cassese wrote in 1992 that the notion of permanent sovereignty over natural resources ‘tends to support a restrictive interpretation of the occupant's powers to exploit and dispose of immovable property’: Antonio Cassese, ‘Powers and Duties of an Occupant in relation to Land and Natural Resources’ in Playfair, Emma (ed), International Law and the Administration of Occupied Territories (Clarendon Press 1992) 419, 426.

145 Ferraro (n 48) 75–76. For a different but slightly ambigous view, see Shaw, Malcolm, ‘Territorial Administration by Non-territorial Sovereigns’ in Broude, Tomer and Shany, Yuval (eds), The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity (Bloomsbury 2008) 369, 409. It should also be noted that the US Military Manual does not mention any obligation to consult the population of the occupied territory: US Department of Defence, Law of War Manual (2015) 735ff.

146 One may ask whether the existence of an intact ousted government would mean that there would be no reason to consult the people. Are consultations with an occupied people just a substitute, when there is no government to consult, or do such consultations have an independent value even if there is an ousted government? In those situations that have prompted most of the recent discussion on occupation – Iraq and the Middle East – there has been no ousted authority that could credibly be consulted. In cases like occupied Kuwait (1990–91), the government would be a legitimate representative, while the situation is more complex in Northern Cyprus and Crimea, where large parts of the population sympathise with the occupiers and feel that they had grievances against the previously effective government (which is not at all to legitimise the interventions in 1974 and 2014, respectively).

147 Corell (n 60) 238.

148 Benvenisti (n 5) 43.

149 Dinstein (n 39) 35.

150 Oppenheim (n 5) 364. See further Michael Bothe's report to the ICRC expert meeting: ‘The power exercised by the occupant is its own original power limited by international law; it is not a power delegated or derived from the State whose territory is occupied’: Michael Bothe, ‘“Effective Control”: A Situation Triggering the Application of the Law of Belligerent Occupation’ in Ferraro (n 48) 36. cf also Bhuta (n 5) 727.

151 Oppenheim (n 5) 368.

152 See Crawford, James, The Creation of States in International Law (Oxford University Press 2006) 613–15. See also Arai-Takahashi (n 5) 74–77.

153 Claude, Inis, ‘Collective Legitimization as a Political Function of the United Nations’ (1966) 20 International Organization 367, 376–77. See also Pahuja, Sundhya, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press 2011) 8182.

154 Lee, Seokwoo, ‘Continuing Relevance of Traditional Modes of Territorial Acquisition in International Law and a Modest Proposal’ (2000) 16 Connecticut Journal of International Law 1. Of the four traditional modes of acquisition of territory, only cession does not necessarily involve effective control. However, if a rare case were to occur in which the ceded territory would not be effectively taken over by the recipient state, the lack of control would surely be an important aspect. For the history of colonial acquisitions, see Anghie, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2007) 82ff, and Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press 2002) 98ff.

155 Max Radin made a similar remark regarding the Roman concepts of possession and dominium: Radin, Max, ‘Fundamental Concepts of the Roman Law’ (1925) 13 California Law Review 207, 218–19.

156 Talmon suggests that ‘[s]tates may, for example, refuse to recognize and enforce laws enacted by the aggressor for the occupied territory or may deny recognition to title to property even if the acquisition of property was within the 1907 Hague Regulations on Land Warfare’: Talmon (n 47) 117. See also the discussion in Ronen, Yaël, ‘Illegal Occupation and Its Consequences’ (2008) 41 Israel Law Review 201. For a general discussion on the relation between the jus ad bellum and the law of occupation, see Giladi, Rotem, ‘The Jus Ad Bellum/Jus In Bello Distinction and the Law of Occupation’ (2008) 41 Israel Law Review 246.

157 Even the Advocate General did that, although he refused to assign the designation ‘de facto administering authority’ to Morocco: Advocate General (2018) (n 34) [232].

158 Shaw (n 145) 409. See also Dinstein (n 39) 3, and Knut Dörmann, ‘Foreword’ in Ferraro (n 48) 4. See also Ronen (n 156) 237.

159 Benvenisti (n 5) 3. This is, of course, in stark contrast with the colonial concept of pacific occupation: see Institut de Droit International, ‘Projet de déclaration internationale relative aux occupations de territoires, resolution adopted at the Institute's Session de Lausanne in 1888’, http://www.idi-iil.org/app/uploads/2017/06/1888_lau_02_fr.pdf.

160 Of course, this does not change the fact that the manner in which the state obtained possession might be a violation of the jus contra bellum, and that there is therefore a jus ad bellum obligation to withdraw.

161 cf Benvenisti's characterisation of the concept of occupation as the ‘mirror image’ of the concept of sovereignty: Benvenisti (n 5) 21.

162 Crawford (n 152) 107.

163 Koskenniemi, Martti, ‘Occupation and Sovereignty – Still a Useful Distinction?’ in Engdahl, Ola and Wrange, Pål (eds), Law at War: The Law as It Was and the Law as It Should Be (Brill 2008) 163, 171.

164 One could also think of it as a sliding scale of rules, rights and obligations: cf Koskenniemi, ibid 170. As mentioned, Benvenisti refers to the two concepts of occupation and sovereignty as ‘mirror-images’, which is, of course, a metaphor with different connotations: Benvenisti (n 5) 21. cf also Gross: ‘it is necessary to shift from a binary approach to the existence of occupation to one that considers that duties follow from the exercise of control, regardless of whether the situation is conceptualised as falling into the category of occupation or of sovereignty’: Gross (n 140) 130. For Gross, this perspective entails that ‘the responsibility of an occupier is as great as its power’: Gross, ibid 133. It should be pointed out that this view – which focuses on the responsibilities rather than the rights of the governing party – is not necessarily incompatible with the non- (or even anti-) functionalist view of the relation between occupation and sovereignty espoused by Koskenniemi, to which I also subscribe (but in a more equivocal way).

165 Cassese (n 134) 73.

166 ICCPR (n 23) art 1.

167 ibid art 25.

168 Except in the rare case that the consent to be bound by a treaty was in violation of a domestic law on competence and that violation was ‘manifest and concerned a rule of its internal law of fundamental importance’: VCLT (n 97) art 46.

169 cf Koskenniemi (n 163) 164.

170 Schrijver, Nico, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press 1997) 311. Duruigbo, evidently arguing in a de sententia ferenda mode, says that governments should be responsible towards their citizens, being in ‘a position of trust in relation to their countries’ natural resources’: Duruigbo, Emeka, ‘Permanent Sovereignty and Peoples' Ownership of Natural Resources in International Law’ (2006) 38 George Washington International Law Review 33, 67. See also Okowa (n 126) 246 and 258 (the latter being more of a de sententia ferenda statement, I assume).

171 UNGA Res 1803 (XVII), Permanent Sovereignty over Natural Resources (14 December 1962).

172 Kwame Nkrumah, ‘“Ghana is Free Forever”: Kwame Nkrumah's Speech at Independence’, BBC World Service, 6 March 1957, http://www.bbc.co.uk/worldservice/focusonafrica/news/story/2007/02/070129_ghana50_independence_speech.shtml.

173 Thomas Turner, ‘Independence Day: Fifty Years after Lumumba Speech, DRC's Riches Still Not Benefiting Her Children’, Carnegie Council for Ethics & International Affairs, 3 June 2010, https://www.carnegiecouncil.org/publications/ethics_online/0046/:pf_printable.

174 Emphasis added. UNGA Res 2625 (XXV) (n 22); ICCPR (n 23) art 1. cf also Hinsley, FH, Sovereignty (2nd edn, Cambridge University Press 1968) 223 (sovereignty is ‘the pre-condition of effective action in and for the community’).

175 The quotation is from the development of the principle of equal rights and self-determination of peoples in the Friendly Relations Declaration, attached to UNGA Res 2625 (XXV) (n 22).

176 cf, in favour of diversity, Hannum, Hurst, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (University of Pennsylvania Press 1989) 26. Issues like these were discussed in Slaughter, Anne-Marie, ‘A Liberal Theory of International Law’ (2000) 94 American Society of International Law Proceedings 240. See Marks, Susan, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford University Press 2000); and Fox and Roth (n 134). My own contribution, Pål Wrange, ‘Liberalism and the End of International Law?’, Stockholm University, Faculty of Law Research Paper No 18, March 2000.

177 On odious debt, see Robert Howse, ‘The Concept of Odious Debt in Public International Law’, UNCTAD Discussion Paper No 185, July 2007.

This article was presented in early draft form at the Minerva Center's (Hebrew University and Tel Aviv University) Conference ‘50 Years after 1967: Evaluating the Past, Present and Future of the Law of Belligerent Occupation’, Tel Aviv, 23 May 2017. Material from the text was also presented at the panel discussion ‘Analysing the Western Sahara Campaign Case’, Queen Mary University of London, 3 May 2018. I would like to thank the participants for valuable comments. I would also like to extend a warm thank you to the editors and reviewers of the Israel Law Review for extensive and very useful comments. I was confronted with the Western Sahara issue between 1996 and 2007 as a legal adviser to the Swedish Ministry for Foreign Affairs, and since I resigned from the foreign service in 2010 I have frequently presented my views on that conflict, usually at the request of parties critical of the Moroccan regime in the territory. I have, however, never been affiliated with any of the stakeholders involved with the situation.

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