On October 4, 2024, the Court of Justice of the European Union (CJEU or Court) issued a landmark judgment regarding the European Union’s (EU) engagement with international law in the joined appeals of the European Commission and the Council of European Union against Front Polisario (Front populaire pour la libération de la Saguia-el-Hamra et du Rio de oro). For the first time in the history of the EU, the Court annulled an act of EU institutions—concluding an agreement with the Kingdom of Morocco—on the basis that it violated international law. The agreement was found to be incompatible with the right to self-determination of the Sahrawi people of Western Sahara and the relative effect of treaties under customary international law.Footnote ¹

The Polisario II ruling is the latest episode in the saga of the EU Court’s rulings regarding Western Sahara.Footnote ² This case addresses the implications of this ruling on the international law applicable in occupied and non-self-governing territories. The judgment left important issues unaddressed, which creates the risks that it will amount to nothing more than rearranging the deck chairs on the Titanic, as the parties find ways to hollow out its pronouncement on the principle of self-determination.

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The judgment concerns an association agreement concluded between the EU and the Kingdom of Morocco establishing a free trade area.Footnote ³ The legal question revolved around the possibility of an EU act, concluding an international treaty, applying to Western Sahara, a disputed territory. On the one hand, the Kingdom of Morocco considers Western Sahara part of its territory, and largely administers this territory. One the other hand, in 1976, Front Polisario, a Sahrawi independence movement of Western Sahara, declared the creation of the Sahrawi Arab Democratic Republic (SADR) in portions of Western Sahara. Western Sahara remains one of the largest “unfinished” cases of decolonization, still listed as one of the seventeen UN non-self-governing territories.Footnote ⁴ While the EU and its member states recognize the right to self-determination of the Sahrawi people, they have not recognized the SADR as an independent state.Footnote ⁵

The right to self-determination for the people of Western Sahara has been recognized by the International Court of Justice (ICJ) in its 1975 advisory opinion.Footnote ⁶ The ICJ also clarified that while there were some historical ties between Western Sahara and the Kingdom of Morocco prior to colonization by Spain, those ties were not sufficient to establish Morocco’s sovereignty over Western Sahara.Footnote ⁷ The UN Security Council and the UN General Assembly have, in numerous resolutions, endorsed the right to self-determination of the Sahrawi people,Footnote ⁸ and since 1991, established the United Nations Mission for the Referendum in Western Sahara (MINURSO) to promote the peaceful settlement and facilitate the referendum.Footnote ⁹ However, a referendum still has not been conducted.

Since 1996 the EU has entered into numerous international agreements with the Kingdom of Morocco, including the Euro-Mediterranean Association Agreement (Association Agreement) which focuses on trade liberalization. Although these agreements initially did not specify whether they apply to Western Sahara, EU courts have grappled with these issues in numerous judgments.Footnote ¹⁰ In 2019, the Council concluded amendments to the EU-Morocco AA as well as a new Sustainable Fisheries Partnership Agreement (SFPA) that expressly foresaw the application of those EU-Morocco agreements to products originating from the territory and the waters of Western Sahara under Moroccan occupation.Footnote ¹¹ Those new agreements were struck down by the CJEU in 2024 in Polisario II.

In Polisario II, the Court made three important findings that pertain to international law. The first one is a rather procedural matter and concerns Front Polisario’s right to be a party to legal proceedings and have legal standing before the Court. The EU Commission and Council argued that Front Polisario does not have standing because it is not recognized as a legal person under national or EU law, and is not directly affected by the EU-Morocco agreement.Footnote ¹² Front Polisario successfully contested those two arguments (para. 62). The Court agreed that Front Polisario has standing to contest the EU-Morocco agreement even though it was not party to it. First, the Court concluded that the recognition of a movement created to exercise the right to self-determination (para. 67) as a legal person before the CJEU could not depend on its recognition under Moroccan law (para. 68). Front Polisario is recognized as a legitimate interlocutor in the UN process conducted with a view to determining the future of Western Sahara (para. 69), as well as in the African Union (para. 70). The CJEU concluded that “consistency and justice require recognition of the capacity of such an entity to be a party to legal proceedings so that it can challenge measures restricting its rights or decisions unfavourable to it” (para. 65). In the Polisario I ruling of December 21, 2016, the CJEU found that Front Polisario lacked standing to challenge the conclusion of the EU-Morocco Agreement.Footnote ¹³ This was not due to the lack of international recognition of Front Polisario, but because the Court considered that Front Polisario was not directly concerned by a bilateral agreement between the EU and the Kingdom of Morocco. Since the EU is committed to observing international law, the Court reasoned, it could not have possibly intended for an agreement with Morocco to be applied to a third party, such as Western Sahara (para. 106). The new EU-Morocco Agreement foresaw explicitly its application to products from Western Sahara, leaving no room for such an interpretation. In Polisario II the Court instead upheld the position of the General Court and the opinion of Advocate General Ćapeta, finding that Front Polisario does have standing under EU law. Even though the EU-Morocco agreement expressly stated that it does not amount to a recognition of Moroccan sovereignty over Western Sahara, it did in fact directly affect the rights of the people of Western Sahara, who Front Polisario represents. EU law, in the form of the EU-Morocco Agreement, would have effects on products being exported from Western Sahara, so on the exploitation of its resources. Those rights invoked by Front Polisario before the EU Court derive from Article 73 of the Charter of the United Nations (para. 93). The effects would also be automatic and not require further discretion of EU authorities (para. 96). As a result, Front Polisario, as a representative of the people of Western Sahara, was considered to be directly concerned by the new EU-Morocco agreement leading to the admissibility of its challenge before the CJEU.

The second issue concerns the Court’s interpretation of the right to self-determination of the Sahrawi people, and whether that has implications for the EU-Morocco Agreement. The Court sided with the opinion of AG Ćapeta when it acknowledged the right to self-determination of the Sahrawi people, however small and dispersed (paras. 127–29). The Court distinguished the Sahrawi people from the population or inhabitants of Western Sahara, who are majority Moroccan due to demographic changes since its separation from Spain. The Court further concluded that the EU is bound “to the strict observance and the development of international law, including respect for the principles of the Charter of the United Nations,” which includes the right to self-determination (para. 133). Furthermore, while the Council of the EU has a wide margin of discretion in the sphere of external relations, the Court reminded that

Third, the Court ruled on the requirements necessary for consent of the people of Western Sahara. Pursuant to Article 34 of the Vienna Convention on the Law of Treaties, a third state is not bound by a treaty without its consent.Footnote ¹⁴ As Western Sahara is a third party affected by the EU-Morocco agreement, it cannot, in principle, be bound by that agreement, unless it consents to it. Such consent could be explicit or implicit. The EU institutions claimed to have acquired explicit consent through consultations with the Sahrawi people.Footnote ¹⁵ However, those were conducted with the cooperation of Moroccan authorities and only in the territory under Moroccan control. As the Court recognized, “to date, of a total of around 500 000 Sahrawi, approximately 250 000 are living in refugee camps in Algeria, another quarter are living in the area of Western Sahara which is under Moroccan control, and the remaining quarter are living in other parts of the world” (para. 127). Moreover, the Sahrawi people constitute 25 percent of the population in the territory of Western Sahara under Moroccan control. Due to those limitations of the consultations conducted by EU and Moroccan authorities, the CJEU rejected them as expressions of valid consent (paras. 128, 130). Furthermore, Front Polisario explicitly rejected the agreement.

The Court also rejected the argument that the consent requirements could be substituted by those laid out in a 2002 letter by Hans Corell, under-secretary-general for legal affairs, the legal counsel, addressed to the president of the Security Council.Footnote ¹⁶ It further noted that the EU-Morocco Association Agreement did not prevent the EU from establishing a separate regime with regard to trade with the parts of Sahrawi territory under the control of Front Polisario. In the context of a different territorial conflict, the EU has signed such parallel association agreements with Israel (in 1995) and the Palestine Liberation Organization (in 1997). For the people of Western Sahara, the Court highlighted that they were not the addressees of the acts issued by Morocco or the EU in implementation of their bilateral Association Agreement. The acts of Moroccan authorities were only applicable to products originating from Western Sahara that were subject to controls by the customs authorities of Morocco (para. 148). This means that, purely legally speaking, the EU-Morocco Association Agreement was not meant to bind the people of Western Sahara as a subject of international law (para. 147). Still, the bilateral agreement between the EU and Morocco produced legal effects for the people of Western Sahara, primarily through the granting of certificates of origin for products originating in Western Sahara by Moroccan authorities. Those legal effects triggered the need for consent of the Sahrawi people.

Having found that the people of Western Sahara had not given explicit consent to the agreement, the Court reasoned that consent of a third party may also be granted implicitly so long as two conditions are met.Footnote ¹⁷ According to the Court, these conditions, which concern the interests of the peoples of non-self-governing territories, derive from Article 73 of the UN Charter and customary international law.Footnote ¹⁸

The Court concluded that in the present case, the implicit consent is lacking because “any benefit for the people of Western Sahara … [is] manifestly absent from the agreement at issue” (para. 158).

Lastly, the Court annulled the Council’s decision concluding the Association Agreement. However, the CJEU decided to maintain the effects of the contested decision for a period of twelve months on the grounds of legal certainty.Footnote ¹⁹

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As the Court recognized, “to date, of a total of around 500 000 Sahrawi, approximately 250 000 are living in refugee camps in Algeria, another quarter are living in the area of Western Sahara which is under Moroccan control, and the remaining quarter are living in other parts of the world” (para. 127). Polisario II represents a ruling with important consequences for the self-determination of the Sahrawi people and the territorial conflict over Western Sahara. The CJEU, a court of a regional organization, has engaged significantly with public international law. Its reasoning has important implications both with regards to the impact that international law has in the EU legal order, and the way in which the EU legal order contributes to or undermines the international law of self-determination and the relative effects of treaties.

First, the Court utilized international law to clarify procedural and institutional aspects of EU law. For illustration, the standing of Front Polisario as a Sahrawi liberation movement before the EU Court is derived from the principle of self-determination under international law as well as their status of representative of Western Sahara within the UN (paras. 67–70). Likewise, the Court used international law to set boundaries of discretionary power of the EU political institutions in the foreign policy domain when it found “that margin of discretion is legally circumscribed by … the principle of self-determination [and] … the principle of the relative effect of treaties” (para. 134). It also made clear that the EU is bound to respect not only the UN Charter but also to contribute to “the development of international law” (para. 133). As Ronald Dworkin argues, “[d]iscretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction.”Footnote ²⁰ This hole has been viewed as particularly large with regard to the EU’s discretion under international law.

Polisario II is the first time that the Court relied on the applicable international law obligation to effectively invalidate an act of EU institutions. The Council and the Commission raised several arguments regarding their broad discretion. They emphasized uncertainties in international law concerning non-self-governing territories, which should give them a “benefit of the doubt” with regard to both necessity and the form of ensuring consent. The CJEU has acknowledged in previous case law that international law obligations of the EU or customary international law can be a yardstick for reviewing legality of the EU law. Their interpretation and the discretion of EU institutions lead the Court, however, to always uphold the validity of EU acts in light of international law. It remains to be seen in what other ways this judgment can be used in the future to determine the Council’s discretionary power in foreign policy and international law’s place in the EU legal order more broadly.

Second, through direct engagement with the right to self-determination and the relative effects of treaties, Polisario II also contributes to interpretation and development of international law. On the right to self-determination, the Court was brief but clear, ruling on what constitutes a unit of self-determination, and that in the present context the Sahrawi are the sole people eligible to enjoy that right. Regarding the principle of customary international law on the effects of treaties on third states, Section 4 of Article 34 of the Vienna Convention on the Law of Treaties (VCLT) stipulates that, “A treaty does not create either obligations or rights for a third State without its consent.”Footnote ²¹ This raises some fundamental international law questions. The preliminary question is how the Court interprets implicit consent of Sahrawi people. The Court did not engage with the fact that Front Polisario has explicitly refused to consent to the EU-Morocco agreements and that there is no possibility for an entity to give a valid consent under military occupation. The case also raises the question whether the term “third states” also includes “third parties,” namely non-universally recognized states and entities, such as Western Sahara. Regarding this issue, the Court maintained that the term “third states” incudes “third parties.” This interpretation is not new, as the Court has already adopted this view in, among others, Brita and the 2016 Polisario judgment.Footnote ²² This interpretation departs from a traditional and textual understanding of third states in the law of treaties and customary international law. The Court cited no authorities when it modified and expanded the notion of third states to other kinds of third parties.Footnote ²³ At the same time, it must be recalled that the Court’s understanding of third parties is consistent with its interpretation of and engagement with actors and subjects of international law. For illustration, when the Court was tasked to determine whether the EU’s engagement with Kosovo through third country agreements amounts to recognizing Kosovo as a state, it concluded that the term “third country” also implies third states, and Kosovo qualifies as a third state even if some EU member states do not recognize its statehood and the EU as a whole retains a neutral status.Footnote ²⁴ It appears that the EU takes a more functional and less formalistic approach when engaging with subjects of international law. This could be seen both as an unorthodox interpretation of international law but also as a creative way to revisit the place of peoples, non-universally recognized states and other lawful entities in international law.

The key finding where the Court adopted a particular interpretation of international law relates to the fact that consent of a third party that is subject to an international agreement may also be granted implicitly under the two conditions elaborated above. In setting up the criteria the Court did not sufficiently engage with international law case law and authorities regarding consent of states or free and informed consent of Indigenous people. As a result, the CJEU neither contributed to further development of international law nor relied on its authority for its own decision. While implicit consent is understood in international law as agreement in a form of acquiescence or unwritten text, the Court made an abstract calculation for implicit consent. It proposed a consent test based on the beneficial nature of the EU-Morocco agreement for the Sahrawi people, even if they do not agree that that agreement should apply in Western Sahara. The Court thus used implicit consent to imply beneficiaries in the context of effects on third parties. Such an interpretation would never be applied in practice if the EU-Morocco Agreement was to impact a third state, say Algeria. Third states would be presumed to be sovereign and to have other options than to trade with the EU. While the Court, in other sections of the judgment, spoke of the right to self-determination of the Sahrawi people in clear terms, on the point of implied consent, the Court backtracked, because of the circumstances on the ground, and invented a formula that neither fits with the notion of effects of treaties on third states, nor with the right to self-determination or the law of occupation.

The unique legal reasoning proposed by the CJEU is a result of a difficult balancing act that the Court is trying to accomplish. On the one hand, it recognizes the right to self-determination of non-self-governing-territories, and at the same time, it acknowledges that a state may assume administering powers, even if obtained unlawfully over a people, as is the case with Morocco’s administration of Western Sahara. This tension can also be found in Article 73 of the UN Charter, according to which the UN Charter recognizes that UN members “which have or assume responsibilities for the administration of [non-self-governing-territories] … recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories.”Footnote ²⁵ AG Ćapeta interpreted Article 73 in light of the 2002 letter of Hans Corell, which foresaw the possibility of applying an international agreement to a non-self-governing territory either in consultation with the people or to their benefit. While the Court rejected the letter as a legal source, its interpretation of implied consent comes close to its pragmatic approach to assessment of economic benefits of an exploitation (sep. op., Ćapeta, AG, para. 190). The Court reached a decision, which, on the one hand maintains that Western Sahara has the right to self-determination, yet also is administered by Morocco and thus the EU can sign treaties with Morocco as long as the Sahrawi people are beneficiaries of such an agreement.

The silences of Polisario II on non-self-governing-territories, the law of self-determination, and the law of occupation mean that the bench in Luxembourg is likely to be addressed again with certain questions. For example, the CJEU did not clarify the obligations of the EU, as a global actor, with regard to conflicts happening in violation of international law. While the question of obligations of third parties vis-à-vis illegal occupation constitute a significant part of the ruling of the ICJ advisory opinion of July 19, 2024 on Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, the CJEU in Polisario II did not engage in the same legal debate.

As far as the future of Western Sahara is concerned, although the Court did acknowledge the right of the Sahrawi people to self-determination, its impact on the matter is watered down by accepting Morocco’s administering powers over Western Sahara, and being the sole subject to sign agreements with third parties with regard to Western Sahara. Polisario II is an example of a regional court not deciding on a territorial dispute directly, but rather ruling on commercial issues, human rights, and institutional competences that relate to such a conflict.Footnote ²⁶ Through such rulings by proxy the courts also try to navigate the tension between the difficulty (if not impossibility) of a judicial resolution of the territorial conflict and the need to guarantee a minimal level of human security and economic development in a conflict zone.Footnote ²⁷

With regard to consequences of the Polisario II ruling, the Court allowed the EU-Morocco Agreement to stay in place for another twelve months, and practically paved the way for the Agreement to continue also after that period. This is essentially the case because in the Court’s reasoning, consent of the Sahrawi people to EU-Morocco agreements implies only the assurance that they will benefit from such agreements. Furthermore, even though the Court required that the EU-Morocco agreements must serve also the Sahrawi people in a “specific, tangible, substantial and verifiable” way, it is still unclear how this will be measured and achieved (para. 153). For example, will the 75 percent of the Sahrawi people living outside Western Sahara or only the 25 percent of them living in the country benefit from the deals? While the Court may have to grapple with such questions in the future, all we know for now is that issues of benefit will be decided and measured by EU and Morocco, and not the Sahrawi people. Against this background, it is likely that the EU institutions will be able to circumvent complex questions of self-determination and the relative effect of treaties and find a legally persuasive way to “fix” the agreements to make them international law compatible without engaging with or advancing the rights of the Sahrawi people under international law. In this vein, one may argue that in the long run international law will remain only a performative act in Polisario II.