Western Sahara, a thorn in the EU’s side: analysis of the CJEU’S incoherent words to protect future EU-Morocco Agreements

On 4 October 2024, the Court of Justice of the European Union delivered three judgments concerning Western Sahara, joined cases C-779/21 P and C-799/21 P, joined cases C-778/21 P and C-798/21 P, and case C-399/22. The second of these judgments annulled the fisheries agreement between the EU and Morocco because of the lack of consent of the Saharawi people, as the Court found that the Saharawi territory was affected by this agreement. In principle, the judgement appears to be favourable to the Front POLISARIO, recognized as the legitimate representative of the Saharawi people. Nevertheless, at the same time it presents inconsistencies that may have negative consequences for the Saharawi people. The Court based its argument on the right to self-determination and the principle of the relative effects of treaties, recognizing the Saharawi people as a “third party” affected by the agreements between the EU and Morocco. However, the Court also introduced the concept of implied consent in case the agreement in question does not impose obligations on the people under occupation and provides them with benefits. This interpretation could lead to a weakening of the right to self-determination of the Saharawi people by not having to consult directly with the Front POLISARIO when concluding an agreement affecting the Saharan territory. Therefore, the purpose of this paper is to analyse the legal arguments introduced by the Court in this matter that allow the occupying power, Morocco, to exploit the Saharawi natural resources without requiring the express consent of this people. It will also examine how the Court’s lack of clarity perpetuates the legal and political uncertainty surrounding trade relations between the EU and Morocco, jeopardising the peaceful and legal resolution of the conflict in Western Sahara.