THE EUROPEAN UNION AS A CONTRIBUTOR TO CUSTOMARY
INTERNATIONAL LAW:
A Question of Self-Determination in Western Sahara
Final Version, 7 January 2019
Myrthe Hanckmann, master student European Union Law, 10474757
Supervisor: dhr. dr. T.A.J.A. Vandamme
List of Abbreviations
ATAA Air Transport Association of America
AG Advocate General
CJEU Court of Justice of the European Union EEAS European External Action Service
EEC European Economic Community
ENP European Neighbourhood Policy
EP European Parliament
EU European Union
FPA Fisheries Partnership Agreement
Front POLISARIO Frente Popular para la Liberación de Saguia el-Hamra y Río de Oro
GA General Assembly
HR High Representative
ICCPR The International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice
ILC International Law Commission
MINURSO Spanish: Misión de las Naciones Unidas para la Organización de un Referéndum en el Sáhara Occidental
English: United Nations Mission for the Referendum in Western Sahara
NGO Non-Governmental Organization PLO Palestine Liberation Organization
SAA Stabilisation and Association Agreement SADR Sahrawi Arab Democratic Republic
SWD Staff Working Document
TEU Treaty on European Union
TFEU Treaty on Functioning of the European Union
UK United Kingdom
Abstract
According to Article 3(5) TEU, the European Union has a duty to contribute to the development of international law. The EU, as an international organisation, is able to develop customary international law through (State) practice, in its external actions, and opinio juris, in jurisprudence by the CJEU. In February 2018, the CJEU pronounced the latest judgement in a series of cases concerning Western Sahara and the customary international legal principle of self-determination. As Africa’s last colony, the people of Western Sahara have an internationally recognized right to external self-determination, by virtue of which they have the right to determine their political status and freely pursue their economic, social and cultural development. However, the decolonization process of Western Sahara was never completed, and the area has been “occupied” by Morocco ever since Spanish withdrawal. As such, the region is established by the UN as a Non-Self-Governing Territory. Accordingly, the Union is put in a difficult position. On the one hand, the Union has the responsibilities and competences for its external and economic policy, therefore pursuing a deep and constructive relation with its southern neighbour and trading partner Morocco. On the other hand, the Union has a duty to the strict observance and development of international law, such as the right to self-determination of the people of Western Sahara. This thesis provides a legal analysis of the Union’s practice in this difficult situation and discusses how the EU has taken up its role as a contributor to the development of customary international law, in particular the principle of self-determination. This research demonstrates that the role of the Union in the establishment and development of customary law, in particular the principle of self-determination has been rather limited, as the Court did not actively engage with the substantive fulfilment of the principle of self-determination. Nevertheless, through its evaluation of the relative effect of treaties, in particular Article 34 of the Vienna Convention, it managed to unite the principle of self-determination, despite a possible lack of exercise, with a people’s right to consent. In this manner, the CJEU has demonstrated a willingness to support and develop customary international law in general, and the principle of self-determination in particular. Ultimately, the judgements discussed give the impression to the Court advances a de jure reading of the Union’s external action in harmony with public international law, whereas the EU’s practice in Western Sahara appears to favour advancing the Union’s economic stakes in the area. Whether this divide between the Court’s legal vision and the institutions practical approach will endure with the conclusion of new agreements explicitly covering the territory of Western Sahara, remains to be seen.
Table of Contents
CHAPTER 1: INTRODUCTION ...2
1.1 Scope ...2
1.2 Methodology ...3
1.3 Outline ...3
CHAPTER 2: THE PRINCIPLE OF SELF-DETERMINATION UNDER PUBLIC INTERNATIONAL LAW ...5
2.1 History of principle of self-determination ...5
2.2 From revolutions to colonialism ...6
2.3 Different approaches and legal interpretations ...6
2.3.1 Self-Determination in the United Nations ...8
2.3.2 Self-determination by the International Court of Justice ...9
2.4 Self-determination in practice: who are the people? ...10
2.5 Current Status of Self-Determination under Public International Law ...12
CHAPTER 3: THE DEVELOPMENT OF CUSTOMARY INTERNATIONAL LAW AND EU EXTERNAL RELATIONS ...14
3.1 The European Union as an international organization and its role in developing customary international law ...15
3.2 Self-Determination in the European Union ...16
3.3 The European Union, ‘disputed’ territories and trade ...18
3.4 Conclusion ...21
CHAPTER 4: CASE STUDY OF WESTERN SAHARA ...23
4.1 (Post-Colonial) History of Western Sahara ...23
4.2 The European Union, Morocco, and Western Sahara ...25
4.2.1 EU-Morocco ...25
4.2.2 EU-Western Sahara ...26
4.3 CJEU case law on the Western Sahara ...28
4.3.1 Case T-512/12 Front Polisario v Council ...29
4.3.2 Case C-104/16 P Council v Front Polisario ...31
4.3.3 Case C-266/16 Western Sahara Campaign UK ...33
CHAPTER 5: THE DEVELOPMENT OF SELF-DETERMINATION BY THE EUROPEAN UNION ...36
5.1 Defining a people ...36
5.2 The exercise of a people’s right to self-determination ...38
5.3 A people’s consent and the principle of self-determination ...38
5.4 The institutions in the aftermath ...39
5.5 Conclusion ...42 CHAPTER 6: CONCLUSION ...44 BIBLIOGRAPHY ...47 List of literature ...47 Case-Law ...51 Legislation ...52
CHAPTER 1: INTRODUCTION
According to Article 3(5) Treaty on European Union (TEU), in its relations with the wider world, the Union shall contribute to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.1 This is echoed in Article 21 TEU, which states, ‘the Union’s action on the international scene shall be guided by the principles … which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’.2 These commitments are important to the EU as an international economic actor, as Article 207(1) TFEU states ‘the common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action’.3 The Union’s dedication to the observance of international law has often been the subject of studies,4 the developmental aspect of Article 3(5) TEU however, has not always received equal attention.
1.1 Scope
Therefore, this thesis its main research question is; what is the role of the European Union in the establishment and development of customary international law, in particular the principle of self-determination? To this end, the discussion will be based on a case study of Africa’s last colony,5 Western Sahara, and determine how the Union’s practice and jurisprudence plays a role in the development of customary international law. The principle of self-determination deserves focus because it has the ability to severely affect the Union’s relations with non-Member States, as we will see in the case of EU-Morocco relations. Most importantly, because concluding treaties that could apply to territories whose people claim a right to self-determination, it is of paramount importance the European Union develops a coherent policy towards such territories on the basis of respect for the principle of self-determination.
1 Consolidated Version of the Treaty on European Union [2008] OJ C115/13. Article 3(5) 2 ibid. Article 21
3 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European
Union (TFEU) [2016] OJ C202/1. Article 207(1)
4 eg L Bartels, ‘The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects’ (2015)
25 4.1071
5 E Hagen, M Pfeifer and JJ Smith, Profit over Peace in Western Sahara - How Commercial Interests Undermine Self-Determination in the Last Colony in Africa (Sternberg Press 2018).
1.2 Methodology
In order to address the foregoing research question, the following thesis will conduct a threefold investigation. First, it will provide a legal analysis of the principle of self-determination as a norm of customary international law, in a public international legal framework. Second, focus will be on the Union, as an international organisation and its capacity to contribute to the development of customary international law, followed by an examination of the Union’s practice regarding the principle of self-determination in ‘disputed’ territories other than Western Sahara. The last section will constitute a case study of three CJEU judgements concerning Western Sahara.
1.3 Outline
For the purposes of this study, the first chapter sets out to define the principle of self-determination and establish its delimitations as they are currently understood under public international law. The subsequent chapter will determine the Union’s ability to develop customary international law and examine the role of self-determination, as a customary law principle, in the Union’s external actions. A case study of three judgements by the Court of Justice of the European Union concerning the people of Western Sahara’s right to self-determination constitutes the third chapter. The final chapter concerns a debate on the role the EU has played in developing customary law in the Western Sahara cases specifically, in order to conclude on the research question, determining the extent of the Union’s contribution to the development of customary law in the case of self-determination in Western Sahara and the relation between the public international law vision of self-determination and the EU’s actions and judgements on the right to self-determination.
In other words, the principle of self-determination is at times ambiguously defined, of great importance to Africa’s last colony, Western Sahara, therefore, it is remarkably insightful to examine how an international organization, such as the European Union, develops the principle of self-determination in case-law concerning a unique situation such as Western Sahara. Due to the considerable responsibilities the EU carries in the international sphere, negotiating broad international treaties at times covering difficult conflict areas such as in Morocco, Kosovo, China and Moldova, its actions in this field set out important precedents closely followed by the international community. For that reason, the ensuing research develops the role of the EU
in the establishment and development of customary international law, in particular the principle of self-determination.
CHAPTER 2: THE PRINCIPLE OF SELF-DETERMINATION UNDER PUBLIC INTERNATIONAL LAW
The ensuing chapter will be setting out the theoretical international legal framework, divided into three parts. The first section deals with the historical development of the principle of self-determination. The second part will consider the different approaches to the principle present in international treaties, resolutions and declarations, as well as consider the role of the principle in opinions by the International Court of Justice. The last section will examine who actually has an internationally acknowledged right to the exercise of self-determination and aims to establish a generally agreed upon concept of the principle of self-determination and determine where the Union could contribute to its development. This set-up, discussing the development of the principle of self-determination, both in terms of historical circumstances and its legal demarcation, serves to enable analysis of the interaction between the customary international law norm of self-determination and the Union’s possible development of this principle in the cases concerning Western Sahara in the final chapter.
2.1 History of principle of self-determination
It is commonly understood6 that the norm of self-determination traces back to the American Revolution.7 The democratic principle of consent of the governed formed the basis of the Declaration of Independence and was seen as the only legitimate foundation of government.8 This understanding was echoed later in the 18th century French revolution.9
The historic understanding of self-determination, according to Franck, ‘... basically postulates the right of a people to be organized in an established territory, and to determine its collective political destiny in a democratic fashion and is therefore at the core of the democratic entitlement’,10 this ‘democratic’ (or political) right to self-determination came into our
6 J Castellino, 'International Law and Self-Determination: Peoples, Indigenous Peoples, and Minorities' in C
Walter and A von Ungern-Sternberg (eds), Self-Determination and Secession in International Law (Oxford University Press 2014) 29; C Walter and A von Ungern-Sternberg, 'Self-Determination and Secession in International Law - Perspectives and Trends with Particular Focus on the Commonwealth of Independent States' in C Walter and A von Ungern-Sternberg (eds), Self-Determination and Secession in International Law (Oxford University Press, 2014); T M Franck , 'The Emerging Right to Democratic Governance' [1992] American Journal of International Law 46, 86
7 J Castellino, ‘The History of the Norm of Determination’ in J Castellino, International Law and Self-Determination: The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial ‘National’ Identity (Martinus Nijhoff Publishers 2000). 8
8 M Guibernau, ‘Self-Determination in the Twenty-First Century’ (2015) 14 Ethnopolitics 540, 541 9 J Hayward, ‘After the French Revolution: Six Critics of Democracy and Nationalism’ (1991) (as cited in J
Castellino, ‘The History of the Norm of Self-Determination’ (n 7).
understanding a considerable time prior to the currently more well-known ‘colonial’ right to self-determination.11
2.2 From revolutions to colonialism
The origins of the modern principle of self-determination can also be traced back to the United States, namely to its President Woodrow Wilson, addressing Congress on 11 February 1918, to indicate that ‘peoples may now be dominated and governed by their own consent’ and warned statesmen they shall ‘henceforth ignore [the principle of self-determination] at their peril’.12 Wilson’s ideas on the employment of the principle are still noticeable in its application today, as he conceived of the process as offering a choice of political lineage, determined through plebiscites.13
On the African and Asian continents, the concept of self-determination played a determining role in the restoration of individual, sovereign States, out of the colonial Empires.14 As a consequence of the downfall of the Roman, German, Austro-Hungarian, and Turkish empires, setting off a wave of decolonization across the globe, self-determination developed as a principle continually inspired by the ideal of democracy.15 In this wave, the political principle of self-determination gained currency in the international community and began to function in a semi-legal manner.16
2.3 Different approaches and legal interpretations
In the context of this study it is necessary to firmly place the principle of self-determination in a general a framework of public international law, in this case specifically, customary international law. Customary international law ‘refers to international obligations arising from established international practice, as opposed to obligations arising from formal written
11 P Hilpold, ‘Self-Determination and Autonomy: Between Secession and Internal Self-Determination’ (2017)
24 International Journal on Minority and Group Rights 302, 308
12 Woodrow Wilson ‘Fourteen Point Address January 8 1918’ (as cited in J Castellino, ‘The History of the
Norm of Self-Determination’ (n 7).
13 J Castellino, ‘International Law and Self-Determination: Peoples, Indigenous Peoples, and Minorities’ (n 6). 14 M Shaw, 'Self-Determination, Decolonization and Territory' in M Shaw, Territory in Africa (Oxford
University Press 1986) 92, 93.
<http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198253792.001.0001/acprof-9780198253792-chapter-4> accessed 14 August 2018.
15 R Emerson, Self-Determination, 65 AJIL 463 (1971) (as cited in MYA Kadir, ‘Application of the Law of
Self-Determination in a Postcolonial Context: A Guideline Issue Focus: Imperialism Haunting the Twenty-First Century’s International Law’ (2016) 9 Journal of East Asia and International Law 7.)
conventions and treaties’ and is one of the sources of international law.17 Customary international law can be established through demonstrating state practice and opinio juris.18 What exactly constitutes state practice or opinio juris is at times still subject to debate.19 Additionally, it is relevant to this particular study that UN Resolutions or Declarations are not considered a formal source of law in the International Court of Justice Statute, nor are they in general binding upon states.20 However, many accept such resolutions and declarations as evidence of customary international law.21
Regarding the principle of self-determination, although included in written treaties,22 it is widely accepted ‘the consistent state practice in conformity with the UN resolutions formed the international customary rules on the external self-determination of colonial peoples and peoples under foreign military occupation’.23 The following section aims to clarify the legal and political development of the principle of self-determination.
The right to self-determination as it is appreciated under customary international law, derives from the broader process of decolonization. This form of self-determination is often referred to as an ‘external’ right to self-determination.24 ‘Internal’ self-determination on the other hand is found outside of the colonial context and refers to other forms of self-determination that do not necessarily entail secession or independence. This distinction is not always equally clear, as some argue that a severe lack of internal self-determination, such as restrictions on political, social and cultural freedoms, could lead a people to claim a justified right to external self-determination. Additionally, complicating matters are other international legal principles, such as territorial sovereignty, and political interests, such as ‘restless’ areas within the EU’s own borders. Nevertheless, internal self-determination will not be the focus of this study and
17 B Mamlyuk, ‘Customary International Law’ (LII / Legal Information Institute, 23 October 2009)
<https://www.law.cornell.edu/wex/customary_international_law> accessed 23 October 2018.
18 ibid.
19 B Mamlyuk, ‘Opinio Juris (International Law)’ (LII / Legal Information Institute, 23 October 2009)
<https://www.law.cornell.edu/wex/opinio_juris_%28international_law%29> accessed 23 October 2018.
20 Statute of the International Court of Justice (1946) < https://www.icj-cij.org/en/statute>. Article 38.
21 BE Carter, PR Trimble, International Law (3rd, New York: Aspen Law & Business, 1999), 138 (as cited in V
Gudelevičiūtė, ‘Does the Principle of Self-Determination Prevail over the Principle of Territorial Integrity?’ (2005) 2 International Journal of Baltic Law 48). 55
22 eg Charter of the United Nations 1945 (1 UNTS XVI).
23 V Gudelevičiūtė, ‘Does the Principle of Self-Determination Prevail over the Principle of Territorial
Integrity?’ (2005) 2 International Journal of Baltic Law 48). 55
24 SP Sheeran, ‘International Law, Peace Agreements and Self-Determination: The Case of the Sudan’ (2011)
therefore does not merit further explanation here. Henceforth, unless explicitly stated otherwise, the term self-determination will refer to an external right to self-determination. 2.3.1 Self-Determination in the United Nations
As the process of decolonization spread after 1945, decolonization and self-determination, as a norm of customary international law, were of tremendous importance to the general development of international law.25 As a consequence to their extensive discussion within the United Nations, the right to self-determination is most prominently established in Article 1 of the of the UN Charter and in Chapter IX of the Charter, in Article 55.26
The right to self-determination found in Articles 1 of the International Covenant on Civil and Political rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)27 is understood to operate mostly in the context of international human rights conventional law.28
Furthermore, the principle of self-determination plays a crucial role in Resolution 1514 (XV),29 which is generally appreciated as the legal and political basis for the process of decolonization and reaffirms ‘all peoples have the right to self-determination’. Additionally, reference to the principle can be found in Resolution 1541(XV),30 which determines the various forms the right
25 Shaw (n 14) 92; Sheeran (n 24) 445
26 Charter of the United Nations 1945 (1 UNTS XVI). Article 1: The Purposes of the United Nations are (2) to
develop friendly relations among nations based on respect for the principle of equal rights and
self-determination of peoples, and to take other appropriate measures to strengthen universal peace; Article 55: … peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.
27 The International Covenant on Civil and Political Rights (ICCPR) 1966 (General Assembly Resolution
2200A (XXI)); International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 (General Assembly resolution 2200A (XXI)). Article 1: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural
development; 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence; 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
28 Shaw (n 14) 102.
29 Declaration on the Granting of Independence to Colonial Countries and Peoples 1960 [Res 1514 (XV)].
Article 2: All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
30 General Assembly Resolution 1541 (XV), ‘Principles which should guide Members in determining whether
or not an obligation exists to transmit the information called for under Article 73e of the Charter 1960' [Res 1541 (XV)] 29. See also General Assembly 15th Session, ‘Transmission of information under Article 73e of the
Charter 1960’ [Res 1542 (XV)] 30. ‘Recognizing that the desire for independence is the rightful aspiration of peoples under colonial subjugation and the denial of their right to self-determination constitutes a threat to the well-being of humanity and to international peace’
of self-determination may take.31 The importance of self-determination in the context of decolonization is further clarified in the 1970s Declaration on Principles of International Law.32 Recently, in the Millennium Declaration, Members of the UN re-established the need to uphold the right to self-determination of peoples under colonial domination and foreign occupation.33 Ultimately, the understanding that ‘the concept of self-determination has been the legal instrument in the process of ending colonialism’,34 was both stimulated and epitomized by the Declaration on the Granting of Independence to Colonial Countries and Peoples,35 which to this day is one of the clearest statements on self-determination within international law.36 The objective of the foregoing is to demonstrate the various statements of self-determination, and how these, in practice, formed the basis of the decolonization process, as such establishing the principle of self-determination as a rule of customary international law. The previous also demonstrates the delimitation(s) of the right to self-determination found in various international treaties and resolutions. To understand the interpretation of the right to self-determination in the international legal community, the following discusses some of the important Opinions of the International Court of Justice on the subject.
2.3.2 Self-determination by the International Court of Justice
As a consequence of the arguably vague wording37 in the Charter, in addition to competing claims and interests involved with claims to the right to self-determination, the interpretation of the principle in important Advisory Opinions of the International Court of Justice, aims to clarify the understanding and application of the principle in a legal context.
31 Ibid. ‘A Non-Self-Governing Territory can be said to have reached a full measure of self-government by: (a)
emergence as a sovereign independent State; (b) free association with an independent State; or (c) integration with an independent State’.
32 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations 1970 [Res 2625 (XXV)]. eg ‘Convinced that the principle of equal rights and self-determination of peoples constitutes a significant contribution to contemporary
international law’; ‘Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter’; ‘The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles’.
33 United Nations Millennium Declaration 2000 [A/RES/55/2]. Paragraph 4 34 Shaw (n 14) 101.
35 Declaration on the Granting of Independence to Colonial Countries and Peoples (n 29). 36 J Castellino, ‘The History of the Norm of Self-Determination’ (n 7) 22.
The right to external self-determination has been explicitly acknowledged in various Opinions by the International Court of Justice (ICJ), e.g. in the cases of Namibia, Western Sahara, East Timor and Kosovo. The ICJ recognition of the right to self-determination arises from the provisions of the UN Charter, international Covenants, UN Resolutions, and General Assembly Declarations.38
The following will be limited to setting out some of the ICJ’s most significant conclusions on the interpretation of the right to self-determination. First, the Court issued an Opinion on Namibia,39 affirming the principle of self-determination as relevant to all non-self-governing territories, on grounds of ‘subsequent development of international law, in particular Resolution 1514 (XV)’. Second, the Court’s Advisory Opinion on Western Sahara, regards decolonization as the basic framework [of analysis] and self-determination as the most relevant principle in the case, defining it as ‘the need to pay regard to the freely expressed will of peoples’. 40 Third, the Court delivered a judgement in the case of East Timor,41 proclaiming the erga omnes character of the principle of self-determination, as it developed from the Charter and UN practice,42 under international law. Most recently, the Court issued the Kosovo Opinion,43 which is particularly interesting by virtue of its dissenting Judges Opinions, who acknowledged the possibility of exceptional cases, outside of the classical decolonization process, which may legitimize claims to external self-determination, and to that end set out relevant criteria.44
2.4 Self-determination in practice: who are the people?
From the previous set-up we have learned that the right to self-determination is a basic principle of international law, widely accepted and generally recognized as a norm of customary international law.
38 Sheeran (n 24) 449.
39 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 1971 12. Paragraph 52
40 Western Sahara, Advisory Opinion [1975] ICJ Rep 1975 12 paragraph 59. Also see Shaw (n 14) 96-97. 41 Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 1995 P 90 Gen List No 84, paragraph 29. 42 V Crnić-Grotić, ‘The Right to Self-Determination - the Kosovo Case before the International Court of
Justice’ (2013) 34 Zb. Prav. fak. Sveuč. Rij. 895.
43 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Report 403.
44 ibid. ‘the Court did not take a position on the relevance of this claim, see para 83. By contrast, see separate
opinion of Judge Trindage Cancado, para 175, declaration of Judge Simma, para 6, separate opinion of Judge Yusuf, para 16, separate opinion of Judge Sepulvada Amor, para. 35’ (as cited in Sheeran (n 24) 452).
However, according to Castellino,45 there is a principal question at the centre of the ambiguity surrounding the principle that requires an answer to properly understand the applicability of the principle.46 Derived from the foregoing,47 ‘all peoples’ have the right to self-determination; thus, the paramount query becomes who are the people?48 Furthermore, whether tension rises between the principle of self-determination and other principles of international law, e.g. territorial sovereignty, will often depend on the understanding of the legal meaning of ‘peoples’.
According to Archibugi,49 ‘[T]he concept of the self-determination of peoples is founded on the premise that peoples themselves are the holders of given rights’.50 However, there’s rarely been a concept more contentious than ‘peoples’. Particular difficulty lies in the establishment of objective criteria to define ‘a people’. To this end, Archibugi proposes three ways to determine who has the right to self-determination. The first of these, the right of colonial peoples, reflects the meaning of peoples found in the UN Charter and other sources of international law, and colonial peoples are the most commonly accepted ‘recipients’ of this right to external self-determination.51 The second, refers to the rights of minorities intent on autonomy, has been invoked increasingly since the Cold War and is most often associated with wars of secession and internal conflict.52 Finally, the right of certain cultural or ethnic groups is arguably the most contemporary understanding, referring to internal self-determination and often comes from democratic states. These minorities do not necessarily wish for secession, as they strive for certain collective rights.53
Hence, the understanding of which people(s) have a (recognized) right to self-determination often depends on the form in which they wish to exercise this right. In the continuing, taking
45 Joshua Castellino is Professor of Law & Dean of the School of Law, as well as the Business School at
Middlesex University, London.
46 J Castellino, ‘International Law and Self-Determination: Peoples, Indigenous Peoples, and Minorities’ (n 6)
32.
47 (n 26-27)
48 J Castellino, ‘Who Are the People? National Minorities in Self-Determination Discourse’ in J Castellino, International Law and Self-Determination: The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial ‘National’ Identity (Martinus Nijhoff Publishers 2000) 47.
49 Daniele Archibugi is a Research Director at the Italian National Research Council (CNR) in Rome, Acting
Director at the Institute of Research on Population and Social Policies (IRPPS), and Professor of Innovation, Governance and Public Policy in the Department of Management at Birkbeck, University of London.
50 Daniele Archibugi, ‘A Critical Analysis of the Self-Determination of Peoples: A Cosmopolitan Perspective’
(2003) 10 Constellations 488, 489-491.
51 ibid 493. 52 ibid. 53 ibid.
into account the focus on external self-determination, the people considered will be colonial people(s)’ right to self-determination, more so because they are the most widely accepted recipients and the subject of the included case study of Western Sahara. Ultimately there is no universally accepted or justifiably objective way to define “all peoples” that have a right to self-determination, and if a people’s claim to self-determination is to succeed, much will depend on a multitude of variables, including historical situation, desired form of exercise, legal facts and international political support.
2.5 Current Status of Self-Determination under Public International Law
In conclusion, this chapter aims to create the international legal framework in which the principle of self-determination operates. By discussing its role in important historical processes the foregoing examination intends to generate understanding of the norm of self-determination. Specifically, the principle’s development from a political instrument into a legal right, through the process of decolonization, led to its notable inclusion in the Charter of the United Nations and other UN and GA resolutions and declarations. Subsequent practice has solidified the status of self-determination as a basic tenet of customary international law. Additionally, regarding the relation between the right to self-determination and the United Nations, aside from the UN’s support for the right in its Charter and various Resolutions, the UN has often, but not consistently, played a critical role in the exercise of self-determination, through a variety of methods.54 Moreover, it appears that external self-determination, as a legal right, is generally accepted only to apply to UN proclaimed Non-Self-Governing territories,55 emphasizing the important role granted to the UN in determining the future of many a people(s). With respect to the relation between self-determination and the ICJ, Shaw argues, ‘in light of the Sahara case and State practice, the centrality and legal character of the principle of self-determination can hardly be denied’.56
Conclusively, this chapter has created a general framework of self-determination emanating from public international law. It has established the origins of customary international law and determined the principle of self-determination has the status of a norm of customary law. However, there is still room for the principle of self-determination to be developed, to come up with more objective criteria for constituting ‘who’ actually has a right to self-determination,
54 Shaw (n 14) 144.
55 ibid.
how the principle is to be exercised in an orderly legal manner and to consider the role of consent. In light of Article 3(5) TEU, there is a possible role for the EU in this development.
CHAPTER 3: THE DEVELOPMENT OF CUSTOMARY INTERNATIONAL LAW AND EU EXTERNAL RELATIONS
Having defined the principle of self-determination from a public international law perspective in the previous, the following will develop a general framework for the EU’s actions in the field of customary international law in general and regarding the principle of self-determination in particular. This is relevant because proceeding, the focus will turn to the European Union, which is not an official party to the Charter of the United Nations and is not as such legally bound to respect the principle of self-determination. However, as self-determination has been established as a rule of customary international law, it is binding upon the Union as such.57 Although the legally binding character of customary international law on the Union in particular is self-imposed, through jurisprudence of the CJEU,58 arguably this also follows from the reasoning, an international organisation such as the EU, is set-up under rules of international law and as such should be bound by them.
Moreover, self-determination is an interesting principle to study from an EU law perspective, as before the Grand Chamber Appeal judgement in the Front Polisario case,59 it had not found its way, at least explicitly, into the EU legal order. This is not to argue it has not played a role in the EU’s (legal) discourse previous. It has been the subject of legal analysis by the European Parliament (EP)60 and it was discussed there with official questions asked by several Members of the EP.61 Nor does it mean self-determination, as a principle, is inapplicable within the European legal order, recognizing the Union’s explicit dedication to international law,
57 Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp [1992] Eur Court Rep 1992
-06019, para 9: 'that the European Community must respect international law in the exercise of its powers'; A
Racke GmbH & Co v Hauptzollamt Mainz [1998] Eur Court Rep 1998 -03655, para 45: 'the European
Community must respect international law in the exercise of its powers. It is therefore required to comply with rules of customary international law'.
58 ibid
59 C-104/16 Council v Front Polisario P. 87.
60 European Parliament Legal Service, ‘Legal Opinion, SJ-0085/06’ (2006)
<http://www.usc.es/export9/sites/webinstitucional/gl/institutos/ceso/descargas/EU-Parliament-Legal-opinion_FPA_20-February-2006.pdf>; European Parliament Legal Service, ‘Legal Opinion, SJ-0269/09’ (2009)
<http://www.usc.es/export9/sites/webinstitucional/gl/institutos/ceso/descargas/EU-Parliament-Legal-opinion_FPA_13-July-2009.pdf>; European Parliament Legal Service, ‘Legal Opinion, SJ-0699/10’ (2011) <http://www.usc.es/export9/sites/webinstitucional/gl/institutos/ceso/descargas/EU_Parliament-legal-opinion_Agric_21-janvier-2011.pdf>.
61 PV 15/05/2006 – 18, ‘Minutes of 16.05.2006, Item 8.16’,Commissioner Joe Borg, ‘Debates’, European
Parliament, 4 April 2006; MEP Manuel Medina Ortega, ‘Debates’, European Parliament, 15 May 2006; MEP Carmen Fraga Estévez, ‘Debates’, European Parliament, 15 May 2006; MEP Jean-Claude Martinez, ‘Debates’, European Parliament, 15 May 2006 <
http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20060515&secondRef=ITEM-018&language=EN&ring=A6-2006-0163>.
international customary law and the principles of the UN,62 all of which decidedly support the principle of self- determination.
3.1 The European Union as an international organization and its role in developing customary international law
Having established the principle of self-determination to be one of customary international law, the proceeding concerns the developmental aspect of the relation between customary international law and the European Union, aiming to determine the extent to which international organizations, such as the EU, play a role in the development of customary international law in general. Taking particular note of Article 3(5) TEU,63 as a constitutional principle of the Union, the EU needs to strive to develop international law. The following section, focusing mainly on Odermatt’s work on the subject, examines the EU’s ability to contribute to the development of customary international law, through establishing opinio juris and State practice, addressing, that for all its competences, the EU is not a State and as such its role as a contributor is not exactly clear.
According to reports of the International Law Commission (ILC), the EU is the ‘most clear-cut’64 illustration of an international organization contributing to the development of norms of customary international law.65 It does so in certain cases through practice, in the Union’s relations with other international organizations, or States, and accordingly, this practice ‘can develop customary international law governing those relations’.66 In particular, the ILC’s report clarifies, it is only the external practice, involving international organizations and third states, that is relevant for the development of rules of customary international law.67 Union practice can contribute to the formation of customary law in areas such as international fisheries, where the Union exercises mostly exclusive competences,68 and practice can be developed by the Union in areas such as the law of treaties, international responsibility of
62 (n 1) Article 3(5) TEU
63 ibid. reads: ‘In its relations with the wider world, the Union shall uphold and promote its values and interests
and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.’
64 Michael Wood, ‘Third Report on Identification of Customary International Law’ (International Law
Commission 2015) Un Doc A/CN.4/682. Paragraph 77
65 J Odermatt, ‘The Development of Customary International Law by International Organisations’ (2017) 66
International & Comparative Law Quarterly 491, 492-493.
66 ibid.
67 Wood (n 64). ‘Third Report’ paragraphs 71 and 72 68 (n 3) Article 207 TFEU.
international organizations, and the law of succession between international organizations.69 Relevant for this particular research is the international responsibilities of international organizations, as this relates to respect for the right to self-determination, pacta tertiis, and non-recognition of an illegal situation, all principles the EU is bound to uphold because of customary international law, and all part of the Union’s dealings with Western Sahara.
Additionally, ‘the jurisprudence of the CJEU, may contribute … to the development and identification of customary international law’.70 The Court has in certain cases accepted jurisdiction to consider questions of international law based on customary international law, most recently in ATAA, 71 where the CJEU concluded; although the customary law principles concerned appeared only to create obligations between States, there are circumstances conceivable in which these principles are liable to create obligations under EU law, and stated that, under certain conditions, a claimant may rely on those principles and the Court may thus examine the validity of an EU act in light of principles of customary international law.72 Moreover, the Court in this case relied on the so-called ‘effects’ doctrine, to support the conclusion it could adjudicate on acts occurring (partly) outside of the territory of the Union.73 Ultimately, although the ‘CJEU’s ability to contribute to the development of customary international law may be limited … it can contribute to the development of these rules’.74 The foregoing aims to set-out that the Union’s actions in its external relations and the jurisprudence of the Court of Justice are able to contribute to the formation and development of customary international law, as the Union set out to do in accordance with Article 3(5) TEU.
3.2 Self-Determination in the European Union
As an international organization, such as the EU, is able to contribute to the development of international law in the area of customary international law, the following debates the Union’s
69 T Treves, ‘Customary International Law’ in Max Planck Encyclopedia of Public International Law at
<http://opil.ouplaw.com/home/EPIL> para 51 (as cited in Odermatt (n 65).)
70 ibid.
71 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change [2011]
Judgment of the Court of Justice of the European Union (Grand Chamber) Case C-366/10, 2011 -13755. 109-110 reads: However, since a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying those principles (see, to this effect, Racke, paragraph 52).
72 ibid.
73 ibid. paragraphs 125-130. (Also see G De Baere and C Ryngaert, ‘The ECJ’s Judgment in Air Transport
Association of America and the International Legal Context of the EU’s Climate Change Policy’ (2013) 18 European Foreign Affairs Review 389, 400 as cited in Odermatt (n 65) 509).
relation with the customary international legal principle of self-determination in order to determine to what extent to Union has chosen to respect and develop the principle, in practice, previous to the Western Sahara judgements. Self-determination in turn is relevant for the Union because it has the ability to greatly affect the EU’s relation with non-Member States, such as Morocco as we will see in chapter 4 and 5 of this thesis. The relations the Union has with third countries often revolve around trade, especially the negotiating and signing of trade deals developed under the Union’s Common Commercial Policy.75 As this is generally understood as the core business of the EU, it follows that the Union, at times, has to engage with states and territories involved in disputes based on (legitimate) claims to a right to self-determination.76 Therefore, the following aims to demonstrate the importance of a coherent EU policy to the right to self-determination, in order to enable discussion of the Union’s practice and jurisprudence regarding the principle in the following chapters.
The Members States of the European Union decided not to include the principle of self-determination in any of the treaties. The reason for this exclusion is most likely political, not legal, respecting several discussions of internal self-determination within the Union’s boundaries, however it prevents establishing an orderly manner to exercise the right of self-determination within EU law.77
The lack of explicit provision, however, does not completely prevent the principle of self- determination to play a role in a European context. Its recognition in international law should suffice.78 This idea was developed in the case of Poulson, where the Court concluded the Community must respect international law, and that EU acts must be interpreted in the light of the relevant international law rules, and its scope may even be limited accordingly.79 Subsequently in Racke, the Court specified, in relation to an agreement concluded with a non-member country, the Union is required to comply with the rules of customary international law when adopting a resolution.80 Furthermore, the CJEU reiterated in the Brita case: “[r]ules of customary international law which, as such, are binding upon the Community institutions and
75 (n 3) Article 207 TFEU.
76 eg Palestine, Kosovo, Western Sahara, other examples will be discussed in more detail in following sections. 77 ‘EU Founders Left No Room for Self-Determination’ (Financial Times, 12 October 2017)
<https://www.ft.com/content/c68efd98-ad19-11e7-beba-5521c713abf4> accessed 11 September 2018.
78 (n 57)
79 Poulson and Diva Navigation [1992] ECR I-6019 (n 57) 9. 80 A. Racke GmbH & Co. v Hauptzollamt Mainz. (n 57) 45.
form part of the Community legal order”.81 The foregoing demonstrates that, as a rule of customary international law, the principle of self-determination is not only binding on the Union, it forms part of the EU’s legal order. This notion found further, although less explicit, support in the recent Front Polisario82 and Western Sahara Campaign UK83 judgements by the Court of Justice of the European Union (CJEU).
Another manner to determine the established policy of the Union regarding self-determination may be to examine the Member States’ practice of recognition of a ‘disputed’ territories. In the case of Western Sahara, ‘EU Member States are divided on the recognition of Western Sahara’,84 as well as only 23 out of current 28 Member States have recognized the ‘Statehood’ of Kosovo,85 thus highlighting the difficulty to find common ground on issues involving self-determination.
To the end of establishing European institutional practice when confronted with issues involving the principle of self-determination in so-called ‘disputed’ territories, the following section explores the EU’s actions in the context of its international trade relations.
3.3 The European Union, ‘disputed’ territories and trade
Having established no legal basis for the right to self-determination in the Union’s primary law, the EU’s secondary law, e.g. international trade agreements, could possibly yield such a basis. However, there are no explicit references in the trade agreements examined for this research to point in that direction. Nevertheless, the Union’s practice in its relations with other States can develop customary international law governing those relations, therefore, the following section discusses cases where the right to self-determination plays a role in the international and bilateral relations of the European Union and the non-Member States involved.
81 Case C-386/08, Firma Brita GmbH v Hauptzollamt Hamburg-Hafen (Brita) also see, to that effect, Racke,
paragraphs 24, 45 and 46; see, also, as regards the reference to the Vienna Convention for the purposes of the interpretation of association agreements concluded by the European Communities, Case C-416/96 El-Yassini [1999] ECR I-1209, paragraph 47, and Case C-268/99 Jany and Others [2001] ECR I-8615, paragraph 35 and the case-law cited).
82 C-104/16 Council v Front Polisario P (n 59). The cases concerning Western Sahara will be discussed in detail
as part of the case study in chapter 4
83 Case C-266/16 Western Sahara Campaign UK (Court of Justice of the European Union). The cases
concerning Western Sahara will be discussed in detail as part of the case study in chapter 4
84 K Benabdallah, ‘The Position of the European Union on the Western Sahara Conflict’ (2009) 17 Journal of
Contemporary European Studies 417, 418.
85 ‘Serbia Must Accept Kosovo Independence to Join EU - German Foreign...’ Reuters (15 February 2018)
The first of these territorial conflicts concerns the competing claims to self-determination between Israel and Palestine. Some Member States have recognized Palestine’s statehood and its people’s right to self-determination, as did the European Economic Community (EEC) in its Venice Declaration,86 a position reaffirmed by the EU in 1999, stating that the unqualified Palestinian right to self-determination should include the option of a state.87 Moreover, the European Parliament, in 2017, voted in favour of a (non-binding) resolution calling for the recognition of the State Palestine as part of a two-state solution.88 In this situation, the CJEU decided, in a dispute concerning trade relations, namely, the Brita case, on issues closely related to the principle of self-determination and the Union’s respect therefore. The judgement concerned the interpretation of the Euro-Mediterranean Agreements between the EU and the State of Israel.89 The preliminary reference regarded the preferential treatment of Israeli products manufactured in the West Bank.90 The Court could have dealt with this case on the basis of the principle of self-determination, however, it chose to take a different approach. That is to say the Court argued; an interpretation allowing the preferential treatment of Israeli products manufactured in the West Bank would be inconsistent with the principle ‘pacta tertiis nec nocent nec prosunt’.91 This principle, ‘under which a treaty does not create obligations or rights for a third State without its consent’,92 also plays an important role in the Court’s later decisions on Western Sahara. Interesting here is the emphasis on consent, similar to the approach of late President Wilson to the concept of self-determination. The relation between the international legal principles pacta tertiis and self-determination can be explained through the following argument; because ‘a people’ would have a legitimate right to self-determination, they constitute a third party. Therefore, their right to consent is protected under the principle of pacta tertiis. This leaves the Court a ‘way out’ of the dispute, circumventing the need to
86 Resolution of the heads of government and ministers of foreign affairs of the European Council (Venice
Declaration) 1980. The Declaration by the, at the time, nine Member States, stated “the Palestinian people ... must be placed in a position to exercise fully its right to self-determination” (as cited in Occupation and
Sovereignty: Renewing EU Policy in Israel- Palestine)
<https://www.ecfr.eu/publications/summary/occupation_and_sovereignty_renewing_eu_policy_in_israel_palest ine> accessed 11 September 2018.)
87 Berlin European Council - Presidency Conclusions 1999. (as cited in A Dieckhoff, ‘Europe and the
Israeli-Palestinian conflict’, Inroads, 2005, pp.52-62. <hal-01020562>)
88 European Parliament resolution of 18 May 2017 on achieving the two-state solution in the Middle East 2017
[2016/2998(RSP)].
89 Brita GmbH v Hauptzollamt HamburgHafen (Brita) [2010] ECLI:EU:C:2010:91, Eur Court Rep 2010
-01289, 1.
90 ibid, 2. 91 ibid, 45.
address the issue of the right to self-determination of the Palestine and Israeli peoples outright. This dispute was also more readily decided due to the EU’s established trade agreement with the PLO, covering the ‘disputed’ territories of the West Bank and Gaza. Yet it would have been intriguing to see what the Court had done if this were not the case. Such a situation is addressed in the subsequent case-study of Western Sahara, as the Union does not have a separate agreement covering this region.
Secondly, the EU has had to deal with a difficult situation closer to home, namely the newly formed nation of Kosovo. The aspiring candidate Member State has made significant progress over the years in an effort to improve its relationship with the European Union, accumulating in the recently signed Stabilisation and Association Agreement (SAA).93 However, the SAA specifies the Agreement does not constitute recognition of Kosovo by the EU, nor its individual Member States.94 The European Parliament notes the EU still has five Member States that are unwilling to recognize Kosovo’s statehood, and ‘would welcome the recognition by all Member States of the independence of Kosovo’.95 Altogether this leaves Kosovo in a unique and troublesome situation as regards its recognition as a State and as such its possible eligibility for accession to the European Union.96
Third, the European Union functions as an observer in the negotiation process on the settlement of the Transnistrian conflict, and continues its support for a ‘comprehensive, peaceful settlement based on the sovereignty and territorial integrity of Moldova with a special status for Transnistria’.97
Lastly, China, the EU’s second-biggest trading partner behind the United States,98 is often found debating the right to self-determination with regards to the ‘disputed’ territories of
93 Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo *, of the other part OJ 71 1632016 P 3–321. ‘[t]he Stabilisation and
Association Agreement constitutes the framework of relations between the European Union and the Western Balkan countries’(as cited in ‘Stabilisation and Association Agreement - European Neighbourhood Policy And Enlargement Negotiations - European Commission’ (European Neighbourhood Policy And Enlargement
Negotiations) </neighbourhood-enlargement/policy/glossary/terms/saa_en> accessed 11 September 2018.) 94 Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo *, of the other part (n 93) Article 2.
95 European Parliament resolution of 8 July 2010 on the European integration process of Kosovo 2010
[B7-0409/2010] 2010/2610(RSP).
96 Z Dessus and others, ‘Kosovo’s EU Candidate Status: A Goal within Reach?’ 12.
97 ‘EU-Moldova Relations, Factsheet - EEAS - European External Action Service - European Commission’
(EEAS - European External Action Service) <https://eeas.europa.eu/headquarters/headquarters-homepage_en/4011/EU-Moldova relations, Factsheet> accessed 11 September 2018.
98 ‘China - Trade - European Commission’
Taiwan, Tibet and Xinjiang. In the case of Taiwan, the Commission has communicated that ‘[f]ollowing the ‘one-China’ policy, the EU does not have diplomatic or formal political relations with Taiwan’.99 As the EU has repeatedly confirmed its ‘one-China’ policy, this arguably leaves very little room for the exercise of some of its peoples’ right to self-determination. Yet, the EU and its Member States have dedicated themselves to working with China and its people(s) and they have urged China to commit to protecting the rights of minorities, especially the people in Tibet and Xinjiang.100 The European Parliament moreover has recognized the Tibetans as a people according to international law, affirming their fundamental right to self-determination, as well as recalling, that its people do not insist on Tibet becoming totally independent, and regretting the exploitation of Tibet’s natural resources with insufficient regard to the priorities of the Tibetan people.101 Interestingly, this EP resolution stands in rather stark contrast to the Union’s collective external actions position and its ‘one-China’ policy.
3.4 Conclusion
Conclusively, the previous argues for the vital role the EU plays on the international plain, especially taking into account Article 3(5) TEU which requires the Union to observe and develop international law. To this end, the foregoing aimed to provide a general analysis for the EU’s role as a contributor to the field of customary international law in general and its practice regarding the principle of self-determination in particular. In general, according to the CJEU in Brita, rules of customary law form part of the Community legal order.102 In particular, the Union as a whole, and the separate institutions constituting the EU, regard certain peoples’ right to self-determination with great variety, depending on the conflict at stake, as much as the institutions by themselves, or the Union as a whole, may differ from one another in their opinions. The variety in positions, from unequivocal support for Palestine and majority support for Kosovo, to the EU’s emphasis on territorial integrity in Moldova and a ‘One-China’ policy, demonstrate the EU’s attempt to arguably avoid issues concerning the right to self-determination. Either, for lack of legal definition in EU law, nor objective and substantive fulfilment of the concept in international law, or due to political sensitivities within the territory
99 ‘Taiwan - Trade - European Commission’
<http://ec.europa.eu/trade/policy/countries-and-regions/countries/taiwan/> accessed 11 September 2018.
100 ‘China and the EU - EEAS - European External Action Service - European Commission’ (EEAS - European External Action Service) <https://eeas.europa.eu/delegations/china_en/15394/China and the EU> accessed 11
September 2018.
101 European Parliament, ‘Resolution A3-0369/92 - on the Situation in Tibet’. 102 Brita GmbH v Hauptzollamt Hamburg-Hafen (n 90) 39.
of the Union itself, regarding territories debating ways of exercising their (internal) right to self-determination, the EU obviously exercises restraint concerning conflicts involving the principle of self-determination.
Nevertheless, as it can be understood from the preceding, the Union, through its external organizational practice, especially regarding its relations with non-Member States, and through the jurisprudence of the CJEU, may contribute to the development of customary international law. Ultimately, the foregoing aims to present the interaction between the European Union and customary international law, especially the principle of self-determination, to the end of facilitating a discussion in the subsequent chapter on the EU’s role in the active development of the principle of self-determination in the specific cases concerning Western Sahara.
CHAPTER 4: CASE STUDY OF WESTERN SAHARA
Western Sahara, Africa’s last colony,103 is the backdrop to one of the continent’s longest running disputes.104 As such, the territory has had to deal with colonizers, ‘occupiers’, the UN, and more recently, the European Union. The foregoing chapters set out the international and Union legal frameworks in order to determine the role of the EU in the development of customary international law. To that extent, the ensuing case study of the Western Sahara looks at a specific situation in which the Union has to deal with a rule of customary law, and had the opportunity to contribute to the development of this particular customary legal principle. The case study is based on three judgements of the CJEU.105 To this end, the history of the conflict will be outlined, followed by a review of the relation between the European Union and the Western Sahara, offering context to the discussion of the CJEU’s case law on Western Sahara. 4.1 (Post-Colonial) History of Western Sahara
Western Sahara is a thinly populated area that has been on the UN list of Non-Self-Governing Territories since the 1960s, when it was still colonized by Spain.106 When the Spanish left, the ‘colonial’ issue was never resolved.107 Although, according to the UN, the people of Western Sahara have the right to self-determination,108 they have never exercised it.109 The decolonization process of Western Sahara developed along unique lines, due to the overlapping claims of sovereignty by several powers, namely Mauritania and Morocco, as well as, Morocco interpreting – unjustifiably, according to the Advisory Opinion by the ICJ110 – the Sahrawi
103 Hagen, Pfeifer and Smith (n 5).
104 G Coupeau, ‘“The (European) Empire Strikes Back?”: Applying the Imperial Paradigm to Understand the
European Court of Justice’s Imbroglio in Western Sahara’ [2017] European Foreign Policy Unit Working Paper 2017/1 28, 12.
105 T-512/12 - Front Polisario v Council; C-104/16 Council v Front Polisario P (n 59); Case C-266/16 Western Sahara Campaign UK (n 83).
106 RA Wessel and S Blockmans, ‘The European Union and Peaceful Settlement of Disputes in Its
Neighbourhood: The Emerge of a New Regional Security Actor’ [2011] The European Union and Global Emergencies: A Law and Policy Analysis 73, 87.
107 S Simon, ‘Western Sahara’, Self-Determination and Secession in International Law (Oxford University Press
2014). 265
108 General Assembly Resolution 2072 [XX] of 17 December 1965. And General Assembly Resolution 2229
[XXI] of 20 December 1966. The demand was repeated each year from 1967 to 1973.
109 J Castellino, ‘Modern International Legal History of the Conflict over the Western Sahara - Case Study II -
Part 1’ in J Castellino, International Law and Self-Determination: The Interplay of the Politics of Territorial
Possession with Formulations of Post-Colonial ‘National’ Identity, vol 28 (Martinus Nijhoff Publishers 2000)
257.
people’s claim to self- determination as a violation of their territorial sovereignty and the Moroccan vision of self-determination respectively.111
The territory covers an area on the north-west coast of the African continent, totalling some 260,000 square kilometres and originally has been inhabited by the nomadic Sahrawi people.112 It is situated between Morocco in the north, Mauritania as its southern neighbour and shares a small eastern border with Algeria.113 Its ‘current’ borders took shape in agreements between colonial powers France and Spain between 1900 and 1912,114 although Spain colonized the ‘Spanish’ Sahara as early as 1884.115 Nevertheless, the history of the region before and during colonial influence until the departure of the Spanish are outside the scope of this present study. In April 1976, following Spanish withdrawal in 1974,116 Western Sahara was divided between its neighbours Mauritania and Morocco, when Morocco seized the northern two-thirds and Mauritania the southern third of the territory.117 In 1975, at Morocco’s request,118 several questions regarding the territory of Western Sahara were addressed to the International Court of Justice (ICJ). The ICJ found the people of Western Sahara have a right to self-determination through the free and genuine expressed will of the peoples of the territory, and denied finding any legal ties of such a nature as to affect the application of the principle of self-determination.119 Nevertheless, King Hassan II attempted to uphold the Moroccan vision of its territorial sovereignty over the area through a mass migration of his people, often referred to as the Green March or ‘la marche verte’, which saw Western Sahara invaded by hundreds of thousands of Moroccans.120 After the founding of The Frente Popular para la Liberación de Saguia el-Hamra y Río de Oro (Front Polisario) in 1973,121 an organization with the purpose
111 P Hilpold, ‘“Self-Determination at the European Courts: The Front Polisario Case” or “The Unintended
Awakening of a Giant”’ [2017] European Papers; Vol. 2, 2017, No 3; www.europeanpapers.eu; 907, 909.
112 PP Leite and C Olsson (eds), The Western Sahara Conflict: The Role of Natural Resources in Decolonization
(Nordiska Afrikainstitutet 2006) 12.
113 J Castellino, ‘Modern International Legal History of the Conflict over the Western Sahara - Case Study II -
Part 1’ (n 109) 232.
114 Treaty of Fes, 1912 also Rézette. R., ‘The Western Sahara and the Frontiers of Morocco’ (1975) 91-111 (as
cited in (n 109) 173)
115 Leite and Olsson (n 112) 12.
116 Joshua Castellino, ‘Modern International Legal History of the Conflict over the Western Sahara - Case Study
II - Part 1’ (n 109) 175.
117 Wessel and Blockmans (n 106) 87. 118 Simon (n 107) 257.
119 Western Sahara, Advisory Opinion (n 40) 162.
120 A Faupin and B Guillaumin, ‘The Western Sahara Issue : A Security Stake for the European Union -
European Security in Need of a Settled and Developed Western Sahara’ (EuroDéfense-France 2014) Report by the French Mediterranean Sub-Group EWG 11 bis. 12; Hagen, Pfeifer and Smith (n 5) 19.
