I r i s h J o u r n a l o f E u r o p e a n L a w V o l u m e 1 9 I s s u e 1

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1 EU Exploitation of Fisheries in Occupied Western Sahara: Examining the Case of the Front Polisario v Council of the European Union in light of the failure to account for Belligerent Occupation Susan Power * On 10 December 2015, the General Court of the European Union (EGC) handed down a landmark decision in the case of Front Polisario v Council of the European Union. There the Court annulled a reciprocal trade liberalization agreement, facilitating Morocco s grant of concessions to European States for the exploitation of natural resources in Moroccan occupied Western Sahara. This paper examines the decision, which raised interesting questions of international law, in particular the competence of the EU to conclude international treaties with a belligerent occupant on behalf of and for the benefit of the occupied population. It questions the logic of the approach of the EGC in continuing to treat occupied Western Sahara as non-self-governing territory and suggests that the more relevant legal framework for occupation is international humanitarian law. Introduction On 10 December 2015, the General Court of the European Union (EGC) handed down a landmark decision in the case of Front Polisario v Council of the European Union, annulling a reciprocal trade liberalization agreement between the European Union and Morocco for inter alia agricultural products, processed agricultural products, fish and fishery products in the parts where the agreement had applied to Western Sahara. 1 The trade agreement had provided the basis for inter alia the award of lucrative fishing licenses by Morocco to European fishing vessels operating off the coast of the occupied Western Sahara. In 2014, the EU-Morocco Fisheries Partnership Agreement entered into force, providing substantial EU financial assistance to Morocco of 30 million euro, in exchange for fishing licenses for European fishing vessels. 2 The Protocol provided for 120 fishing vessels and specifically listed the Netherlands, Spain, Portugal, Italy, France, Germany, Lithuania, Latvia, Ireland, Poland and United Kingdom, as States which would be granted fishing licenses by Morocco to fish up to 80,000 tons of pelagic fish off the Western Sahara. 3 By 2014, the Moroccan Ministry of Agriculture, Rural Development and Sea Fisheries, had awarded 65 licenses with Spain receiving 56, Lithuania receiving 3, Portugal receiving * Dr Susan Power lectures International Humanitarian Law in Griffith College Dublin and is an independent legal researcher for Al-Haq, Palestine. 1 ECJ, Case T-512/12, Front populaire pour la liberation de la saguia-el-hamra et du rio de oro v Council of the European Union ECLI:EU:T:2015: EU-Morocco Fisheries Partnership Agreement to enter into force, Brussels 15 July 2014 < accessed 15 August 2016; International Centre for Trade and Sustainable Development, EU-Morrocco fisheries agreement goes ahead, controversy brews (29 August 2014) < accessed 15 August ibid. When the EU-Morocco Fisheries Partnership Agreement (FPA) was adopted by the Agriculture and Fisheries Council on 22 May 2006, Ireland voted for the proposal but made the following statement, setting out its position on the issue: Ireland supports the conclusion of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco on the basis that it does not prejudice the longstanding position of the EU on the status of the Western Sahara. The EU continues to support the efforts of the UN Secretary General to encourage a negotiated solution which will allow the people of the Western Sahara to exercise their right to self-determination. Ireland emphasises the importance of the future dialogue within the EU-Morocco Joint Committee foreseen under this agreement. It is essential that the Joint Committee make use of all instruments under the Agreement to ensure that the Agreement is implemented to the benefit of all the people concerned and in accordance with the principles of international law. See Houses of the Oireachtas, Dáil Debates at < endocument> accessed 6 December

2 EU Exploitation of Fisheries: Front Polisario Susan Power 2, France receiving 1 and the Netherlands receiving 1, in the territorial waters of occupied Western Sahara. 4 As such, European States stood to profit from Morocco s continued unlawful military occupation and exploitation of Western Saharan natural resources. A staggering 90 percent of Morocco s fish exports are landed from the Southern Development Zone of the Western Sahara and are worth approximately $1 billion USD per year in exports. 5 Significantly, the EGC ruled that the Front Polisario, representing the Sahrawi people had legal standing to challenge the Euro Mediterranean Agreement between the EU and Morocco. 6 In particular, the EGC concluded that the EU must take into consideration the fundamental human rights of the population of the territory administered by the non-member contracting State. 7 Although the result was positive in that the trade agreement was annulled in part, there are a number of serious issues that remain. Notably, the Court s grave misunderstanding of the extent to which the EU, or third states, may contract to profit from the resources of occupied territory. In part, these inconsistencies arose from the Court s designation of the territory as a non-self-governing territory rather than military occupied territory, which comes under the umbrella of a comprehensive international humanitarian law framework of belligerent occupation. 8 In light of the above, this paper will examine the legal status of Western Sahara, and following this will address some of the critical issues addressed by the EGC including the legal personality of the Front Polisario before the Court, the examination of Western Sahara as a non-selfgoverning territory, the conclusion of international treaties applying to occupied territory, nonrecognition of an internationally wrongful act, the application of the United Nations Convention on the Law of the Sea to occupied territory, the consideration of fundamental rights and the export of natural resources from occupied territory. 1. The Legal Status of Western Sahara The status of Western Sahara is a legacy issue from the period of its colonization by Spain in the aftermath of the Berlin Conference of 1884 right up to the present day. Following its independence in 1956, neighbouring Morocco claimed that the territory of Western Sahara also belonged to it. 9 However in 1960 the right to self-determination of colonized people was recognized by the United Nations General Assembly in Resolution 1514, marking a turning point in the decolonization process. 10 The right to self-determination of colonized peoples is now considered customary international law and binding on all States. 11 Furthermore, the decolonisation strand of self-determination is considered to be a jus cogens norm. 12 In 1963, the United Nations Special Committee on Decolonisation declared that Western Sahara was to be decolonized and confirmed it to be a non-self-governing territory. 13 Following this, the General Assembly issued a number of resolutions requesting Spain to begin the decolonization 4 European fishing has now been halted after the outcome of the case, but this case may be subject to appeal. Fisheries Partnership Agreement between the European Communities and the Kingdom of Morocco (FPA), in Council Regulation (EC) No 764/2006 of 22 May 2006, in Official Journal of the European Union, L 141 (2006), p 1, Council Regulation, Article 1; Fish Elsewhere, Stop the EU Fisheries in Occupied Western Sahara, EU- Moroccan Fish Deal, Who s Shown an Interest so Far? (2014) < accessed 15 August Toby Shelley, Natural Resources and the Western Sahara in Claes Olesson (eds), Western Sahara Conflict: The Role of Natural Resources in Decolonisation (Uppsala Nordiska Afrikainstitutet, 2006), Front populaire (n 1), para Front populaire (n 1), para Article 42, Hague Regulations (1907); Ben Saul, The Status of Western Sahara as Occupied Territory Under International Humanitarian Law and the Exploitation of Natural Resources [2015] 27(3) Global Change, Peace and Security, ; Christine Chinkin, Laws of Occupation In: Conference on Multilateralism and International Law with Western Sahara as a case study hosted by the South African Department of Foreign Affairs and the University of Pretoria, 4-5 December 2008, Pretoria , Front populaire (n 1), para Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly resolution 1514 (XV) of 14 December ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 31-2, para 53; Western Sahara Advisory Opinion, ICJ Report 1975, pp Joshua Castellino, International Law and Self-Determination: The Interplay of the Politics of Territorial Possessions with Formulations of Post Ciolonial National Identity (Martinus Nijhoff Publishers, 2000) Western Sahara at < accessed 15 August December

3 process and to organize a referendum to be held in the territory. 14 While Spain accepted the process, both Morocco and Mauritania argued that they had historic ties to Western Sahara, giving rise to territorial title from the time preceding the Spanish colonization. 15 In December 1974, the UN General Assembly submitted a request to the International Court of Justice (ICJ) for an Advisory Opinion on whether the territory of Western Sahara constituted terra nullius prior to the Spanish colonization, and if not, what was the nature of its legal ties to Morocco and Mauritania. The ICJ found that there were no legal ties to preclude the decolonization process and held that the people of Western Sahara had a right to self-determination. 16 However, a referendum on Western Sahara was never held. Instead King Hassan of Morocco mobilized 350,000 Moroccan citizens to march on Western Sahara in what later became known as the Green March. This effectively colonized Western Sahara for a second time. 17 In response, the United Nations Security Council adopted a number of resolutions and called on Morocco immediately to withdraw from the Territory of Western Sahara all the participants in the march. 18 The requests were ignored by Morocco who continued and still continues to settle Western Sahara with its population. In 1975, the Madrid Accords were signed between Spain, Morocco and Mauritania whereby Spain allocated its administrative power over Western Sahara to a temporary tripartite administration. That same year, the Front Polisario entered into armed conflict with Morocco and the conflict continued until a ceasefire agreement was concluded in In 1976, Spain finally withdrew from Western Sahara and immediately an armed conflict erupted between Morocco and Mauritania. 20 After a peace agreement was concluded in 1979, Mauritania withdrew from Western Sahara and Moroccan forces occupied the evacuated territory. 21 In 1991, United Nations Security Council resolution 690, established a United Nations Mission for the Organization of a Referendum in Western Sahara (MINURSO). 22 However to date a referendum has not been held. In the meantime, Morocco continued to occupy most of Western Sahara with a small portion of the territory to the east held by the Front Polisario. Morocco has since constructed a massive dividing wall 2,700 km long across the territory between the settled land and land administered by the Front Polisario and has densely mined the intervening area with over 7 million antitank and antipersonnel landmines Legal Personality of the Front Polisario In order to determine whether legal personality was accorded to the Front Polisario as an entity with standing under Article 263 Treaty on the Functioning of the European Union (TFEU), the Court examined the territorial status of Western Sahara. In doing so, it considered the internationally recognized role of the Front Polisario as the representative of the Sahwari people as adopted by the United Nations General Assembly. 24 However this representative role fell short of conferring full legal personality. The Court accepted the pleading of the Council and the Commission that Western Sahara remained a non-self-governing territory administered de facto by Morocco. 25 In the end, the Court insisted that legal personality be derived from the domestic legal order and noted that the Front Polisario did not have legal personality conferred by the law of a member state in this regard. 26 Instead, the Court considered that a measure of legal personality may be conferred where by their acts or actions, the 14 Western Sahara Campaign v The Commissioners for Her Majesties Custom and Revenues and The Secretary of State for the Environment Food and Rural Affairs [2015] EWHC 2898, para Tim Hiller, Sourcebook on Public International Law (Cavendish Publishing Limited, 1998) Advisory Opinion on Western Sahara [1975] ICJ Rep 39, para Stephen Zunes, Jacob Mundy, Western Sahara: War, Nationalism, and Conflict Irresolution (Syracuse University Press, 2010) S/RES/380 (1975). See also S/RES/377 (1975); S/RES/379 (1975). 19 Western Sahara Campaign v The Commissioners for Her Majesties Custom and Revenues and The Secretary of State for the Environment Food and Rural Affairs [2015] EWHC 2898, para Front populaire (n 1), para ibid, para United Nations, MINURSO United Nations Mission for the Referendum in Western Sahara < accessed 15 August The Moroccan Wall in the Occupied-Western Sahara The Guardian < accessed 15 August Front populaire (n 1), para ibid, para ibid, para

4 EU Exploitation of Fisheries: Front Polisario Susan Power European Union and its institutions treat the entity in question as being a distinct person which may have rights specific to it, or be the subject of obligations or restrictions provided that the entity has its own constituting documents and internal structure. 27 Although this would appear to broaden the parameters for entities to plead under Article 263 TFEU, it does not explain why the Court did not accept legal personality derived from international law. Notably, a subject of international law is in possession of international legal personality when it is capable of possessing international rights and duties and has the capacity to retain its rights by bringing international law claims. 28 Unlike an NGO or a corporation, the legal personality of a liberation movement may be derived from the international rather than the domestic legal order. In this vein, national liberation movements have traditionally been classified as international legal subjects and accorded some legal personality as belligerents, but this area is still quite controversial. 29 However the competence of the Front Polisario as a legitimate representative of the Sahawari people certainly represents a measure of its legal personality. 30 Notably in 1976 the Front Polisario in its capacity as representative of the Saharan people established the Saharan Arab Democratic Republic (SADR). 31 The SADR is a fully recognized member of the African Union 32 and a party to the African Charter on Human and Peoples Rights. 33 However this recognition was not addressed in the case. In any event, the EU does not recognize the Western Sahara as an independent State nor does it recognize the Front Polisario. 34 What we have instead, is an interesting broadening of the scope of Article 263, to account for entities in situations of non-recognition, but by extension may also now apply to other types of entities seeking standing before the Court. 3. The EGC Consideration of Western Sahara as a Non-Self-Governing Territory One of the critical turning points in the case was the EGC identification of the situation in Western Sahara as a non-self-governing territory. This presents a particular dilemma given that non-selfgoverning territory falls under a different and more lax administrative framework than the laws of belligerent occupation, which protects the institutions of the occupied territory and also protects the human and humanitarian rights of the occupied population. Nevertheless, in this instance, the Court was satisfied that the Council and Commission had considered Western Sahara to be a non-selfgoverning territory administered de facto by the Kingdom of Morocco. 35 Contrariwise, the Front Polisario argued that Western Sahara constituted military occupied territory. 36 The Court, without any examination of the laws of belligerent occupation arrived at the conclusion that Western Sahara represented a non-self-governing territory. 37 This was surprising given that the situation of occupation since the designation of Western Sahara as a non-self-governing territory was registered at the UN was clearly established by the facts. 27 ibid. 28 Reparations for Injuries Suffered in the Service of the United Nations Case, Advisory Opinion (1949) ICJ Rep 174 at United Nations International Law Commission, Yearbook of the International Law Commission 1998, Volume 2, Part 1, (Documents of the 50 th Session) Wladyslaw Czaplinski, Recognition and International Legal Personality of Non-State Actors [2016] 1 Pécs Journal of International and European Law 11; See also Malcolm Shaw, The International Status of National Liberation Movements [1983] 5(1) Liverpool Law Review Andrew McGregor, Oil Exploration and Political Stalemate Threaten to Trigger Renewed Conflict in the Western Sahara [2013] 11 (22) Terrorism Monitor at < accessed 31 August Article 28, Charter of the Organization of African Unity (25 May 1963). 33 African Commission on Human and Peoples' Rights, Ratification Table: African Charter on Human and Peoples' Rights < accessed 19 December Vish Sakthivel, The EU, Morocco, and the Western Sahara: A Chance for Justice European Council on Foreign Relations (10 June 2016). 35 Front populaire (n 1), para 56 and ibid, para ibid, para December

5 Article 42 of the Hague Regulations governs the de facto basis for belligerent occupation, Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. 38 In addition, Article 2(2) of the Fourth Geneva Convention provides The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Further, Article 43 of the Hague Regulations outlines the template for the governing authority to administer the territory, described sometimes as a mini-constitution. 39 The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. 40 This mini constitution contained in Article 43 is further supplemented by Article 64 of the Fourth Geneva Convention. 41 Critically Morocco is party to Fourth Geneva Convention and the Hague Regulations are also binding on Morocco as customary international law. 42 As such, the question of when a belligerent occupation arises is one of fact. 43 At a minimum, Morocco can be considered as occupying power since the 1976 armed conflict erupted and certainly later when the territory left by Mauritania was occupied by force. 44 Although the United Nations Secretary General Ban-Ki Moon has placed the occupation slightly earlier at 1975, when Morocco took over control from Spain. 45 However the question arises, can there be an occupation of non-self-governing territory, or territory which is not recognized as a State such as, for arguments sake, Western Sahara? In this regard the Court noted, Western Sahara is a territory whose international status is currently undetermined. 46 However non-recognition of a territory does not affect the classification of a situation as belligerent occupation. For example, the international recognition that the Geneva Conventions apply to Israel s occupation of Palestinian Territory being a case in point. 47 In this vein, the International Court of Justice in its Advisory Opinion on the Wall concluded that the Fourth Geneva Convention applies when armed conflict takes place between a High Contracting party and another entity, and the High Contracting party must apply the Convention in good faith. 48 Accordingly, as a State party to the Geneva Conventions, Morocco has obligations where it occupies in whole or in part, the territory of another High Contracting Party, or another entity, such as Western Sahara. The Court in Front Polisario simply glosses over the issue and does not apply any legal analysis, simply accepting the UN designation of the territory as non-self-governing. In doing so, it fails to address entirely the fact that non-self-governing territory listed 38 Article 42, Hague Regulations (1907). 39 David Kretzmer, The Law of Belligerent Occupation in the Supreme Court of Israel [2012] 94(885) International Review of the Red Cross, 207, Article 43, Hague Regulations (1907). 41 Siobhan Wills, Protecting Civilians: The Obligations of Peacekeepers (Oxford University Press, 2009) State Parties, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August At < 380> accessed 28 August 2016; International Military Tribunal at Nuremberg (reprinted in AJIL, Vol. 41, 1947, pp ). The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing International Law at the time of their adoption... but by 1939 these rules... were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war. 43 Tristan Ferraro, Determining the Beginning and end of an Occupation under International Humanitarian Law [2012] 94(885) International Review of the Red Cross, Front populaire (n 1), para Louis Charbonneau, Morocco offers to let some U.N. Western Sahara mission staff back Reuters (17 June 2016) at < accessed 31 August Front populaire (n 1), para United Nations (2002). Yearbook of the United Nations, United Nations Publications. ISBN , p 421; p 437; Statement of the Conference of the High Contracting Parties to the Fourth Geneva Convention, Geneva, 15 July Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, I.C.J. Reports 2004 p 136, (9 July 2004) para

6 EU Exploitation of Fisheries: Front Polisario Susan Power under Chapter XI of the United Nations Charter can also represent territory under belligerent occupation. The two regimes are not mutually exclusive in this regard. 4. The Conclusion of International Treaties Applying to Occupied Territory The conclusion of inter alia fishing rights agreements between the EU and Morocco over the disputed Western Sahara territory, is where the problem of applying the incorrect legal framework, really comes into focus. Front Polisario argued, the Council is prohibited from approving the conclusion of an agreement with a third State which may be applied to a disputed territory. 49 This raises a very serious issue in relation to occupied territory. Can third States negotiate treaties to exploit the natural resources of disputed territory? The EGC on a narrow appraisal of EU law took into consideration Article 6 TEU governing the rights and principles outlined in the Charter of Fundamental Rights and Article 67 TFEU providing for the respect for fundamental rights and the different legal systems and traditions of Member States and found that no such prohibition derived from those provisions. 50 This highlights a broader problem in international law as well, where the issue of treaty contracts concluded during armed conflict is not well understood. This partly stems from the failure of the Vienna Convention on the Law of Treaties to include articles addressing the affect of armed conflict on treaties. The reason for this however, according to the Commentaries of the International Law Commission is: that in the international law of to-day the outbreak of hostilities between States must be considered as an entirely abnormal condition, and that the rules governing its legal consequences should not be regarded as forming part of the general rules of international law applicable in the normal relations between States. However it should be noted that Article 29 of the Vienna Convention on the Law of Treaties provides for the territorial scope of treaties, whereby treaties are binding on parties in respect of their entire territory. Notably, territory under belligerent occupation is not territory belonging to the belligerent occupant, the occupying power merely temporarily administers the territory, which remains in abeyance for the returning sovereign. 51 The International Law Commission in its Commentaries to the Vienna Convention on the Law of Treaties support a limited interpretation of territory and emphasizes the distinction between the entire territory of each party as stated in Article 29 and all the territories or territories for which the parties are internationally responsible which was abandoned by the Commission to avoid association with the so-called colonial clause. 52 It is, as Vagias cogently argues, the departed sovereign (including a recognized Government in Exile) which retains de jure jurisdiction over occupied territories and the capacity to conclude treaties formally applicable therein and not the belligerent occupant. 53 In this regard, the basic property rules come into play, nemo dat quod non habet, nobody gives what he does not have. 54 In relation to natural resources, the point is particularly relevant. Where a State does not have sovereignty over territory under its control, treaties for natural resources in that territory, do not confer title. 55 This is elementary international law and an issue, which worryingly, the Court did not factor into consideration Front populaire (n 1), para ibid, para Angeline Lewis, Judicial Reconstruction and the Rule of Law: Reassessing Military Intervention in Iraq and Beyond (Martinus Nijhoff Publishers, International Humanitarian Law Series, 2012) Draft Articles on the Law of Treaties with Commentaries (1966) 213 at < accessed 29 August Michail Vagias The Territorial Jurisdiction of the International Criminal Court (Cambridge University Press, 2014) ICJ, Case Concerning the land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening), Judgment of 10 October 2002, ICJ Reports, 2002, para 204; Island of Palmas (Netherlands v USA), 4 April 1928, 11 RIAA Francesca Romanin Jacur, Angelica Bonfanti, Francesco Seatzu, Natural Resources Grabbing: An International Law Perspective (Martinus Nijhoff Publishers, 2015) James Crawford, Brownlie's Principles of Public International Law (Oxford University Press, 8 th edition, 2012) 213. December

7 Significantly, the only specific mention of treaties in the Fourth Geneva Convention, pertains to the continuance of extradition treaties negotiated between the parties to the conflict prior to hostilities. 57 Nevertheless, in terms of the Geneva Conventions, the High Contracting Parties are obliged under Article 1 of the Fourth Geneva Convention to respect and to ensure respect for the present Convention in all circumstances. 58 According to the definitive International Committee of the Red Cross (ICRC) commentaries, the obligation entailed in the wording ensure respect for is a lofty one whereby: The proper working of the system of protection provided by the Convention demands in fact that the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally. 59 This places obligations not only on Morocco as a High Contracting party, but all High Contracting parties to ensure that the humanitarian principles are applied. While admittedly the EU is not a High Contracting party to the Geneva Conventions, all EU member States are parties to the Geneva Conventions and the EU has published European Union Guidelines on Promoting Compliance with International Humanitarian Law, which includes the Geneva Conventions and Hague Regulations. 60 The preamble to these Guidelines states: These Guidelines are in line with the commitment of the EU and its Member States to IHL, and aim to address compliance with IHL by third States, and, as appropriate, non-state actors operating in third States. Whilst the same commitment extends to measures taken by the EU and its Member States to ensure compliance with IHL in their own conduct, including by their own forces, such measures are not covered by these Guidelines. 61 This, at a minimum, implies that the EU regards compliance with IHL as necessary in its own conduct such as, for example, treaty relations. Notably, there are also provisions within the Geneva Conventions, which limit the types of special agreements that can be concluded by High Contracting Parties over occupied territory. In particular, Article 7 of the Fourth Geneva Convention provides, no special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them. 62 In any event, there are occasions in international law when a treaty will be void for violation of a jus cogens norm. Accordingly Article 53 of the Vienna Convention on the Law of Treaties provides a treaty is void, if at the time of its conclusion, it conflicts with a peremptory norm of general international law. This provision is also repeated in the Vienna Convention between States and International Organizations and also between International Organizations. While the entire agreement between the EU and Morocco might not be struck down, certainly the provisions pertaining to the appropriation of agricultural and fishing resources of the non-self-governing people of Western Sahara in violation of their right to self-determination would surely be rendered null and void. 63 Indeed the Front Polisario argued that the decision should be annulled as a violation of the right to selfdetermination a peremptory norm of international law. 64 In dismissing the jus cogens argument, the Court flagged the temporary nature of the agreement, which only applied between the EU and Morocco 57 Article 45, Fourth Geneva Convention (1949). 58 Article 1, Fourth Geneva Convention (1949). 59 Commentary of 1958, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August At < > accessed 28 August (emphasis added) 60 European Union Guidelines on Promoting Compliance with International Humanitarian Law at < accessed 29 August ibid. 62 Article 7, Fourth Geneva Convention (1949) 63 Draft Articles on the Law of Treaties with Commentaries, (1966) 248 at < accessed 29 August Front populaire (n 1), para

8 EU Exploitation of Fisheries: Front Polisario Susan Power for as long as the control continues. In this respect, the Court side-stepped the issue of the right of the non-self-governing peoples to self-determination and permanent sovereignty over natural resources, regardless of the temporary nature of the occupation. 65 To restate, the occupant never has sovereignty over the territory or the natural resources of the territory. The Court avoided any real engagement with the issue of peremptory norms from which no derogation is permitted and in this respect appears to have followed the disappointing ruling of the ECJ in the Kadi case, rendering jus cogens norms in EU law, an empty vessel. 66 This places a question mark over the practice of treaty invalidation for infringement of peremptory norms in terms of regional practice cessante ratione legis, cessat lex ipsa Non-Recognition of an Internationally Wrongful Acts One aspect of the ruling, which was most unsatisfactorily dealt with by the EGC was the Court s refusal to annul the EU-Morocco agreement as contrary to the right to self-determination, a peremptory norm of international law. 68 The Court posited that the agreement concluded between Morocco and the EU, did not amount to a recognition of Morocco s claims to the Western Sahara. However, the issue conspicuously sidestepped by the Court is not one of State recognition but rather, the duty of nonrecognition of wrongful international acts arising from the illegal use of force and denial of the right of self-determination by the invading belligerent State. Third States have an international law duty to not recognize as lawful a situation created by a serious breach arising from a peremptory norm of international law from which no derogation is permitted. 69 The obligation was advanced by the International Court of Justice in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), prohibiting dealings between third States and South Africa implying recognition of South Africa s continued presence in Namibia and further, represents customary international law. 70 Such jus cogens norms include the principle prohibiting the acquisition of territory by use of force, and the jus cogens right of peoples to self-determination. 71 Instead, the Court considered that agreements for exploration and exploitation activities carried out in consultation with the representatives of Non-Self-Governing Territories and for the benefit of the people of those territories were compatible with the UN Charter obligations of the administering power. 72 There is some contention here in broader academic discourse about whether the administering State, following an unlawful acquisition or occupation of territory, may continue to administer the resources of that territory for the benefit of the people of those territories. For example, the benefit of the occupied population test has been expressly criticized as: not only unnecessary (on a broader and, arguably, proper interpretation of international law), but it is also essentially unworkable and impracticable; and it may be easily manipulated by the occupier State to its own advantage, or used as a convenient excuse by third States as a stalling device for continuing relations with an illegal occupier such as Morocco in Western Sahara. 73 Symmons further suggests: 65 General Assembly resolution 1803 (XVII) of 14 December 1962, Permanent sovereignty over natural resources 66 ECJ, Joined cases C-402/05 P and C-415/05 Kadi and Al Barakaat International Foundation v Council and Commission ECLI:EU:C:2008:461, [2008] ECR I-6351 para 88; Case T-315/01 Kadi v Council and Commission ECLI:EU:T:2005:332 [2005] II If the reason for a law ceases, the law itself ceases. 68 Front populaire (n 1), para Article 41(2) of the International Law Commission s Articles on the Responsibility of States for Internationally Wrongful Acts, General Assembly Resolution 56/83 (2001), 12 December 2001, Annex. 70 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ICJ Rep 1971, paragraph 126. The ICJ recalled the same set of obligations in its Advisory. See also International Court of Justice, Advisory Opinion on the Wall in relation to the consequences arising from the construction of the Annexation Wall, paras 161, Report of the International Law Commission, 53rd Session, GAOR, 56th Session, Supp. No. 10 (A/56/10), 2001, pp , paras 4, Front populaire (n 1), para Clive R Symmons, Non-Recognition and Denial of Self-Determination in the Case of Western Sahara: Recent Developments in International Law, Conference Paper, International Platform of Jurists for East Timor (March 2016) p 14. December

9 not only should an illegal occupier be denied the status of de facto administrator of forciblyacquired territory, but also there should be a duty on third States not to recognize any such illegal territorial takeover by refraining from having any dealings with an illegal occupant relating to that territory. 74 The question, that arises here, is a nuance between the separation of the jus ad bellum and the jus in bello. In terms of general international law and the jus ad bellum, States must refrain from acquiring territory through unlawful use of force and there is an international law duty for third States to not recognize this breach of international law in their treaty relations with the violating State. 75 However, the belligerent occupant has an obligation under international humanitarian law to continue administering the occupied territory and this includes maintaining the continued functioning of the natural resources of the occupied State. 76 It was, in fact, the weaker States at the drafting of the predecessor Brussels Convention, who fearing that a disinterested belligerent occupant would fail to continue the effective administration of the territory, argued for the inclusion of an obligation to administer the territory in the interests of the local inhabitants. 77 The obligation arises regardless of the legality or illegality of the use of force jus ad bellum. 78 The specific objective of Article 55 of the Hague Regulations is to maintain the capital of the State s immoveable resources intact for the returning sovereign. To what extent the monies from exploitation of natural resources can be used to benefit the occupied population, is a consideration which evolved after the Geneva Conventions of 1949, which were intended to supplement the Hague Regulations governing the use of State assets. Article 64 of the Fourth Geneva Convention supplements Article 43 of the Hague Regulations further permitting the occupant to legislate in the interests of the occupied population as well as to bring into effect the humanitarian provisions of the Geneva Conventions. 79 However the parameters of such continued exploitation of already developed resources in the interests of the occupied population is not clear-cut. For example, in Iraq in 2003, it took a Security Council resolution to provide for the disbursement of the State resources in the Development Fund for Iraq for inter alia purposes benefitting the people of Iraq. 80 The consideration is further tempered by the Article 7 and Article 47 Fourth Geneva Convention qualifications on the representatives of the occupied 74 ibid, pp T Christakis, L obligation de non-reconnaissance des situations crees par le recours illicite a la force ou d autres actes enfreignant des regles fondamentales in C.Tomuschat & JM Thouvenin (eds), The Fundmental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes, Nijhoff (London/Boston, (2005)) at pp See Article 42 and Article 55, Hague Regulations (1907). 77 Eyal Benvenisti, The Security Council and The Law on Occupation: Resolution 1483 on Iraq in Historical Perspective, 4; Eyal Benvenisti, The International Law of Occupation (1993), at p Marco Sassòli, Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century International Humanitarian Law Research Initiative 4; Carsten Stahn, Jus ad bellum, jus in bello... jus post bellum? Rethinking the Conception of the Law of Armed Force EJIL 17 (2006), Article 64, Fourth Geneva Convention (1949); Marco Sassòli, Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century International Humanitarian Law Research Initiative 12. See also Pictet, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, Commentary of 1958, p 335. The principle that the penal laws in force in the occupied territory must be maintained is subject to two reservations. The first relates to the security of the Occupying Power, which must obviously (3) be permitted to cancel provisions such as those concerning recruiting or urging the population to resist the enemy. The second reservation is in the interests of the population and makes it possible to abrogate any discriminatory measures incompatible with humane requirements. It refers in particular, to provisions which adversely affect racial or religious minorities, such provisions being contrary to the spirit of the Convention (Article 27), which forbids all adverse distinction based, in particular, on race, religion or political opinion. [p.336] This means that when the penal legislation of the occupied territory conflicts with the provisions of the Convention, the Convention must prevail. These two exceptions are of a strictly limitative nature. The occupation authorities cannot abrogate or suspend the penal laws for any other reason -- and not, in particular, merely to make it accord with their own legal conceptions. 80 S/RES/1483 (2003). Underlines that the Development Fund for Iraq shall be used in a transparent manner to meet the humanitarian needs of the Iraqi people, for the economic reconstruction and repair of Iraq s infrastructure, for the continued disarmament of Iraq, and for the costs of Iraqi civilian administration, and for other purposes benefiting the people of Iraq; 35

10 EU Exploitation of Fisheries: Front Polisario Susan Power population from entering into special agreements with the occupier, which might override Geneva Convention rights. Nevertheless, the EGC considered: while the specific contracts which are the subjects of the Security Council s request are not in themselves illegal, if further exploration and exploitation activities were to proceed in disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the principles of international law applicable to mineral resource activities in Non-Self-Governing Territories. 81 This is a grave error on the part of the Court. Any exploration and exploitation in disregard of the interests of the occupied population, including all the existing exploratory leases granted, violate the right of self-determination and permanent sovereignty of the occupied population over its natural resources. 6. Application of the United Nations Convention on the Law of the Sea to occupied territory Of some interest, was the argument raised by the Front Polisario, that the principle of legitimate expectations was infringed as Article 3(5) TEU requires the EU s strict observance of international law which is binding on the institutions of the EU. 82 Notably, the EU is a party to the United Nations Convention on the Law of the Sea (UNCLOS). The question arose whether liberalized trade agreements concluded with the belligerent occupant and the EU infringed the sovereignty of the occupied population over their natural resources. The case is one of the first to address the interrelationship between belligerent occupation and the law of the sea. However, the question was rather narrowly framed relating only to the Area under Part XI of UNCLOS. 83 This particular provision relates only to the High Seas and the seabed beyond the continental shelf regarded as the common heritage of mankind. 84 Front Polisario argued that Morocco wrongfully exercises rights over that part of the sea and exploits whose waters in its own exclusive interest. 85 However the Court did not engage with the substantive argument here, which is unfortunate, as in terms of belligerent occupation it raised new and interesting questions on the interrelationship between the laws of occupation and the law of the sea. In particular, on the potential extension of the laws of land warfare over the sea and deep into the high seas in terms of the administrative powers of the belligerent occupant. Signficantly, the Court recalled the ruling in Intertanko whereby the nature and broad logic of UNCLOS prevent the Courts of the European Union from being able to access the validity of an EU measure in the light of that convention. 86 This would appear to place specific issues related to the law of the sea during armed conflict beyond the competence of the Court. 7. Fundamental rights and the export of natural resources from occupied territory While the Court considered that treaties could lawfully be concluded and applicable on disputed territory, the Council must examine the fundamental rights of the population before the approval of such an agreement. 87 In this regard, the EGC applied the European Charter of Fundamental Rights. Importantly the Court dismissed the argument of the Council that it could not be held liable for the infringements on fundamental rights of non-member States. Here the Court found: if the European Union allows the export to its Member States of products originating in that other country which have been produced or obtained in conditions which do not respect the fundamental rights of the population of the territory from which they originate, it may indirectly encourage such infringements or profit from them Front populaire (n 1), para ibid para ibid, para XI, UNCLOS, (1982); Institute Oceanographique, What is the Area and the International Seabed Authority? (May 2013) at < accessed 31 August Front populaire (n 1), para Front populaire (n 1), para ibid, para ibid, para 231 (emphasis added). December

11 In doing so, the Court took into consideration the fact that the agreement did not contain a guarantee that the exploitation of natural resources be carried out for the benefit of the inhabitants of Western Sahara as provided for under Article 73(e) of the United Nations Charter on the administration of nonself-governing territories. 89 While the consideration of the fundamental human rights of the occupied population is promising and laudably resulted in the annulment of Council Decision 2012/497/EU concerning inter alia fishing rights, it is not without predicament. The law of armed conflict including belligerent occupation is generally regarded as the lex specialis taking precedence over the lex generalis of human rights law. 90 The reliance on Fundamental Rights over humanitarian law may lead to serious violations of international law. In terms of natural resources, agreements exceeding the laws of occupation which are concluded even between the occupying power and the authorities of the occupied territory (such as, for example, the Front Polisario) could within the logic of the EGC ruling, potentially be upheld in the future. The problem is best summed up by the ICRC who cogently outline: The legal rights of the inhabitants of occupied territory cannot be curtailed by any agreement or other arrangement between the occupying power and the authorities of the occupied territory. This is intended to prevent national authorities from being put under pressure to make concessions which might not be in the population s best interests or weaken its legal rights. 91 In this vein, while the ruling of the EGC is most certainly welcome in terms of fundamental rights, these norms may clash with the more specific and laws of belligerent occupation which protect the occupied territory and peoples. Conclusion Many of the issues raised in this article highlighted the difficulties faced by the Court when assessing particularly nuanced areas of the laws of armed conflict. The old adage ne sutor ultra crepidam, let the cobbler not venture beyond his sandal may just as easily relate to the type of fragmentation and dilution of norms evident in the interpretation of international law by the EGC. The difficulty was highlighted by the EGC itself when it criticized the applicants brief arguments relating to international humanitarian law which did not explain how and in what ways the conclusion of the agreement referred to by the contested decision infringes that law. 92 However in the end, the provisions on fundamental rights heralded a victory for the occupied peoples of Western Sahara and their representatives, the Front Polisario. Nevertheless, owing to the massive sums of money at stake over the extremely lucrative fishing contracts, the political fallout from the decision has been substantial. The Kingdom of Morocco suspended its diplomatic relations with the EU in February 2016 and that same month the Council launched an appeal process. 93 In this regard, we can look forward to another exciting examination of fundamental rights and the legality of agreements for the exploitation of resources of non-self-governing peoples. 89 ibid, para Robert Kolb, Gloria Gaggioli, Research Handbook on Human Rights and Humanitarian Law (Edward Elgar, 2013) ICRC, The Law of Armed Conflict Lesson 9 Belligerent Occupation, 5 at < accessed 31 August Front populaire (n 1), para Vish Sakthivel, The EU, Morocco, and the Western Sahara: A Chance for Justice (European Council on Foreign Relations, 10 June 2016). 37