Ion GÂLEA
This study has the purpose to examine the judgments rendered on 29 September 2021 by the General Court of the European Union Front Polisario/Council (T-279/19 and T-344/19, T-356/19), from the wider perspective of the European Union case law concerning the territorial scope of agreements concluded between the Union and the Kingdom of Morocco. Thus, the judgments represent a continuation of previous cases Council/Front Polisario (C-104/16P) of 2016 and Western Sahara Campaign (C-266/16) of 2018. In those cases, the Court of Justice of the European Union interpreted ”neutral” territorial clause of two agreements between the EU and the Kingdom of Morocco as excluding the application of those agreements from the territory of Western Sahara. The Court of Justice relied essentially on interpretation in accordance with any other relevant rule of international law in force between the parties (rule reflected in article 31 (3) c) of the 1969 Vienna Convention on the Law of Treaties between States) and invoked the principles of self-determination and relative effect of treaties. Subsequent to these judgments, the EU and the Kingdom of Morocco modified the respective agreements (the” liberalisation agreement” and the” fisheries agreement”) in order to provide explicitly for their application to Western Sahara and its adjacent waters. Thus, the judgment of the General Court of 29 September 2021 were rendered following the action for annulment filed by the Front Polisario, against the decisions of the Council for the conclusion of those agreements.
The study explores the legal questions that were necessarily examined by the General Court, including the locus standi of the Front Polisario, the concept of „people” as subject of international law, the rule „land dominates the sea” and the legal effect of the principles of self-determination and legal effect of treaties. Even if the General Court did not mention it, the study attempts to examine, also, the consequences of the fact that doctrine (including the International Law Commission) and a significant number of States consider the right to self- determination to represent a jus cogens norm.
