Opinion of the Advocate General before the CJEU – The Frente POLISARIO makes decisive progress in the recognition of the right to self-determination and independence of the Saharawi people
Advocate General Ćapeta delivered two sets of Opinions in cases concerning the right to self-determination and independence of the Saharawi people, relating to the Sahrawi origin of agricultural products from occupied Western Sahara and the EU-Morocco Sustainable Fisheries Partnership Agreement, which the General Court had annulled in September 2021.
On the origin of agricultural products (Case C-399/22), the Advocate General concludes that, given the separate and distinct status of the Saharawi territory, by the right to self-determination, “melons and tomatoes from the territory of Western Sahara must bear a ‘country of origin’ label reflecting their origin in that territory. These products cannot indicate Morocco as a country of origin”. Transferring to the case of Western Sahara the Court’s case law on the proceeds of settlements in occupied Palestine, this solution illustrates the proximity of the cause of the Saharawi people to that of the Palestinian people.
On the fisheries agreement (Joined Cases C-778/21 P and C-798/21 P), the Advocate General asserts that the appeal brought by the Council and the Commission should be dismissed. According to the Commission, “In not treating the territory of Western Sahara and the waters adjacent thereto as separate and distinct from that of Morocco, the Council failed to respect the right to self-determination of the people of Western Sahara”. The situation is therefore contrary to the principle of self-determination as enshrined by the Court in its landmark judgment of 21 December 2016.
Finally, about the fisheries agreement (Joined Cases C-778/21 P and C-798/21 P), the Advocate General recalls that the Saharawi people, as holders of the right to self-determination and independence, have “legal personality under international law”. In this context, it recognizes the right of the Frente POLISARIO to take legal action to “defend the territorial integrity of Western Sahara”. However, without dismissing the procedure, the Advocate General considers that the Council’s decision was wrongly set aside because other obligations arising from the right to self-determination may be relevant, advocating that the case should be referred back to the General Court for a ruling on this aspect. In this context, an unfortunate reference is made to the notion of a “de facto administering power”, which was excluded from the proceedings by the Court in 2018. And for good reason: while denying the very existence of the Saharawi people for more than 50 years, the Moroccan Occupier has no standing to express any opinion on it. Contrary to the Court’s previous judgments, this reference is a legal deviation that disregards established principles of international law on decolonization.
The Frente POLISARIO takes note of the progress made. A certain degree of caution is necessary as the conclusions are the Advocate General’s opinions, not the judgments of the Court. For that, we will have to wait a few more months. However, in this legal battle that began a decade ago, great progress has been made. There is no discussion on the admissibility of the legal actions of the Saharawi people, and the Advocate General takes up the arguments of the Polisario Front on the right to self-determination and the right of permanent sovereignty over natural resources. All this is in line with a body of jurisprudence favourable to the Saharawi people; being confirmed step by step.
