CURIA Ćapeta’s Western Sahara Opinions: Undermining the Law of Decolonization

Tags : CURIA, Capeta, Western Sahara decolonization, selfdetermination, Morocco, Frente Polisario, European Union,

Written by Sebastian von Massow

The law on decolonization has two primary objectives: transfer power from colonizer to people in accordance with their will and protect the people until that happens. On 21 March 2024, Advocate General Ćapeta delivered three linked opinions at the European Court of Justice that seriously undermine these objectives.

The cases concern EU trade agreements with Morocco purporting to apply to the territory of Western Sahara. Western Sahara is a non-self-governing territory that has been occupied by Morocco since its invasion in 1975. Two of the opinions concern a long line of litigations brought by the Western Saharan national liberation movement, the Front Polisario, discussed on the pages of this blog herehereherehere, and here. (The third, brought by a French agricultural union, concerns labelling of goods from Western Sahara and is not discussed here).

The opinions concern appeals by the EU Commission and Council against judgments of the General Court in 2021. In these linked judgments, the General Court annulled two Council decisions, one concluding an amendment to the EU-Morocco Association Agreement, the other concluding a Sustainable Fisheries Partnership. It did so on the basis that in both cases the Commission had failed to get the consent of the people of Western Sahara, the Saharawi, and thereby infringed their right to self-determination.

Ćapeta proposes to sustain the first appeal and dismiss the second. Rather than look at the edifice of these opinions, I would like to take us to their foundations in the law on decolonization. Both are premised on two fundamental assumptions concerning the right to self-determination: that the Polisario is not the representative of the Saharawi and therefore cannot give consent on their behalf; and that Morocco is the administering power of Western Sahara and therefore can.

In establishing these assumptions, Ćapeta places undue weight on the bald words of the UN Charter at the expense of a deeper analysis of the state and institutional practice that give them meaning. In basing her opinion on these assumptions, Ćapeta sets a course that, if followed, would undermine the law of decolonization.

1. Front Polisario is the UN-recognized representative of the Saharawi

Ćapeta ignores a rich body of UN practice to conclude with little reasoning that the Polisario is not the representative of the Saharawi.

First, Ćapeta notes only that she can agree with the Commission and the Council that UN General Assembly Resolution 34/37 is insufficient evidence. In fact, the wording of operative paragraph 7 of that resolution is unequivocal. It recommends ‘that the Frente Popular para la Liberacion de Saguia el-Hamra y de Río de Oro, the representative of the people of Western Sahara, should participate fully in any search for a just, lasting and definitive political solution…[my emphasis]’. If this is not sufficiently clear, the consistent practice by the UN General Assembly, the UN Mission for the Referendum in Western Sahara, and consecutive UN Secretary-Generals is. They take note of the statements of the Polisario (hereherehere), call on them to undertake direct negotiations towards a self-determination referendum (herehere), and negotiate and implement the settlement plan with them (Reports of the Secretary-General, for example herehere, and here). In the face of this substantial body of institutional practice, Ćapeta provides insufficient evidence to support her claim to the contrary.

Second, Ćapeta claims that recognition of the Polisario would contradict the EU’s neutral position as to the outcome of the self-determination process, because the Polisario only fight for one particular outcome, independence. Whether an organization is the recognized representative of the people of a non-self-governing territory is a question of international law. It is to be resolved by reference to the practice of the UN institutions tasked with decolonization. It cannot be answered by the EU’s policy position. In any event, the pursuit of independence cannot disqualify a national liberation movement from recognition as a representative of the people. The express object of decolonization is the immediate unconditional transfer of power to the people of the territory (paragraph 5, Resolution 1514). Yes, Principle VI of Resolution 1541 envisages three possible outcomes (independence, free association, and integration). But Resolution 1541 is skewed structurally towards independence. While free association and integration are subject to additional requirements in Principles VII and VIII, independence is not. And the UN’s established practice has been to dispense with a formal self-determination process where the outcome would be independence. To deprive an organization of recognition on the basis that it advocates for independence undermines the entire point of decolonization. Historically it would have left most non-self-governing territories without a recognized representative.

Third, Ćapeta’s comparison of the Polisario to ‘one of the political parties running for a mandate in a yet-to-be-established government’ is factually incorrect. A rich body of political sciences and anthropological scholarship has documented the state-within-a-state established and governed by the Polisario in Algeria for over forty years (herehere).

2. Morocco is not the administering power of Western Sahara

Ćapeta picks out the words ‘assume … responsibilities’ in Article 73 UN Charter to argue that Morocco assumed the role of administering power by taking effective control of the territory. In doing so, Ćapeta prefers her own unsubstantiated analysis of the ordinary meaning of the words of Article 73 over the long-established and well-documented state and institutional practice that has come to give these words their specific meaning in international law. The law of decolonization goes far beyond the express terms of Chapter XI. Its core rules and rights are formulated through widespread state practice in the 1950s and 1960s, confirmed in a string of seminal General Assembly Resolutions, and further elucidated in a number ICJ decisions. To look for the content of the law of decolonization only in the words of Article 73 is to misunderstand how this body of law was developed and where its authoritative sources lie.

As demonstrated in the UN’s practice and universally acknowledged in the scholarship, it is the General Assembly that has the competence under Articles 1, 10 and 55 UN Charter to deal with colonial administration. Acting through the Fourth Committee, it decides whether a territory is a non-self-governing territory and consequently which state bears responsibility as administering power.

There is no example of the UN General Assembly accepting occupation as the assumption of duties as administering power. Nor is there any indication that the General Assembly has accepted Morocco. Administering powers are under an obligation to submit annual reports to the UN (Article 73(e) UN Charter). Morocco does not submit reports and the General Assembly has never requested it to, as it did in other cases where states refused to report.

3. Undermining the Right to Self-Determination

Ćapeta’s ad hoc re-articulation of the basis on which organizations become representatives, and states become administering powers would have serious consequences for the law of decolonization if followed.

First, it would turn the Front Polisario from UN-recognized to un-recognized, depriving the Saharawi people of its representative in the eyes of the EU. This would contradict decades of consistent UN practice, create an institutional double standard between two of the most influential international organizations in the world, and deprive the Saharawi of meaningful political access to trade relations concerning the natural resources over which they have a right to permanent sovereignty.

Second, it would elevate Morocco from an occupying to an administering power, a state that systematically denies this status and its concomitant obligations. On the contrary, Morocco has been accused by the UN Special Rapporteur on the situation of human rights defenders of targeting human rights activists and journalists standing up for Saharawi self-determination (here). And human rights organizations have consistently raised concerns over systematic and violent repression of peaceful public protest, and the utilization of arbitrary arrest, rape, torture, and imprisonment to suppress Saharawi activism (here and here).

Third, it risks undermining the coherence of the law of decolonization as developed at the UN, creating an alternative body of legal rules and interpretations on the basis of which the EU Commission is free to act in apparent accordance with “the EU law on self-determination”, but in violation of the international law on self-determination.

Rather than contributing to ‘the strict observance and the development of international law’ as provided in Article 3(5) TEU, the EU would be legitimizing a position come into by the use of force in defiance of an ICJ Advisory Opinion (here), the UN General Assembly (here), and the UN Security Council (here).

A transfer of power to the people of a non-self-governing territory in accordance with their will cannot be accomplished by a state that insists on its own sovereignty over that territory. A people cannot express its will concerning the use of its natural resources if its UN-recognized representative does not have to be regarded as such by the EU Commission trading in those resources. If the law of decolonization is not to lose all meaning in the context of the EU’s foreign relations, the Grand Chamber would do well to forego impromptu textual interpretations of the UN Charter and return to the well-established UN practice that gives the right to self-determination its proper meaning and implementation.

Ejil Talk, 14/05/2024

#WesternSahara #CURIA #Capeta #Morocco #Decolonization #selfdetermination

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