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Self-Determination, Occupation and the Authority to Exploit Natural Resources: Trajectories from Four European Judgments on Western Sahara

In two recent cases before the Court of Justice of the European Union (CJEU), the General Court (at first instance), the High Court of Justice of England and Wales and the Grand Chamber of the CJEU found that a trade agreement and a fisheries agreement between Morocco and the European Union cannot be applied to occupied Western Sahara without the consent of its people. In spite of the fact that it is the general view that Western Sahara is under belligerent occupation, none of the three courts invoked the law of occupation but based themselves instead on the principle of self-determination and the law governing the administration of non-self-governing territories, including the principle of permanent sovereignty over natural resources. A possible implication of these judgments is that that law and the law of occupation are converging in certain respects, in particular as regards long-term occupation. This pertains not only to the substantive rules on the exercise of authority, which seem to require that the people are heard, but also to the basis for the establishment of that authority, namely bare control.