Trade agreements with occupying powers

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Department of Theology

Spring Term 2021

Master’s Thesis in Human Rights

30 ECTS

Trade agreements with occupying

powers

A case study of the EU external action in Western Sahara

from a social justice perspective

Author: Theresa Wahlqvist

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Abstract

For the past 20 years, the European Union has extended its political cooperation and bilateral trade agreements with Morocco, while not taking a clear stance against the occupation of Western Sahara. Bound by EU law as well as principles of human rights and international law, the institutions of the EU are obligated to respect human rights in the EU external action. This includes the right to self-determination, a customary principle of international law. In two rulings, the Court of Justice of the European Union has concluded that agreements between the EU and Morocco do not apply to Western Sahara. But since then, two new agreements have been concluded whose respective scope include the territory and the waters of Western Sahara. Yet, the people of Western Sahara are not party to any of the agreements which authorises the exploitation of its natural resources.

Drawing upon this context, this thesis examines the human rights aspect of the EU’s international agreements using a set of different research methods. The research question, if and

how the EU’s external action affecting Western Sahara complies with EU law, is answered

through a doctrinal analysis of the human rights clause of three separate agreements between the EU and Morocco, and the relevant case law of the Court. The conclusions are discussed in a following extrajudicial assessment based on Nancy Fraser’s critical theory of social justice. The thesis finds that the EU external action as manifested in the three agreements with Morocco, by including the territory of Western Sahara, does not comply with EU law. Further, the analysis discovers that the lack of coherence between the institutions creates a fragmented external policy, whose legal basis and objectives in regard to respect for human rights is not reflected in its implementation. The discussion discovers that the EU fails to recognise the people in Western Sahara as equal subjects of social justice by upholding an unjust political frame. This framing maintains the status quo and obstructs the people’s claims for redistribution, recognition and political representation. The thesis therefore concludes that the EU should change its policy regarding Western Sahara, and align with the guiding principles for the external action stated in the treaties (Article 21 TEU). The thesis suggests that the EU adopts a comprehensive critical democratic and inclusive approach, in order to improve its institutional framework for how international agreements are negotiated, implemented and monitored in occupied territories.

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Abbreviations

AG Advocate General

Association Agreement Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part

Liberalisation Agreement Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Association Agreement

CCP Common Commercial Policy

CFSP Common Foreign and Security Policy

Charter Charter of Fundamental Rights of the European Union

Commission European Commission

Council Council of the European Union

Court of Justice, Court Court of Justice of the European Union

DCFTA Deep and Comprehensive Free Trade Area

EC Treaty Treaty establishing the European Community

ECHR European Convention on Human Rights

EEC European Economic Community

EEC Treaty Treaty establishing the European Economic Community

EU European Union

ICJ International Court of Justice

MINURSO United Nations Mission for the Referendum in Western Sahara

Member State Member State of the European Union

Parliament European Parliament

Front Polisario Popular Front for the Liberation of Saguia el-Hamra and Río de Oro

SADR Sahrawi Arab Democratic Republic

SFPA Sustainable Fisheries Partnership Agreement between the European

Union and the Kingdom of Morocco

TEU Treaty on European Union

TFEU Treaty on the Function of the European Union

ToL Treaty of Lisbon

UN Charter Charter of the United Nations

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1. Introduction

1.1 Background

After Spain withdrew from Western Sahara, a Spanish colony since 1884, Morocco assumed control of the territory in 1975. Armed conflict broke out between Morocco and the Sahrawi liberation movement, the Polisario Front. The same year, the International Court of Justice (ICJ) recognised Western Sahara’s right to claim self-determination and the UN Security Council demanded Morocco to end the annexation.1 A settlement plan was signed in 1991 after UN-led peace negotiations but failed to be implemented. UN-led talks have been ongoing since 1997 and the UN Mission for the Referendum in Western Sahara (MINURSO), established in 1991, was recently extended to 2021. Neither the Sahrawi Arab Democratic Republic (SADR) nor Moroccan sovereignty over the territory has been recognised by the UN. The long-standing territorial dispute over Western Sahara and the issue of self-determination for the Sahrawi people remains unsolved, leaving it a frozen conflict for nearly 50 years. The UN Security Council is thus still committed to assist the parties to achieve ‘a just, lasting, and mutually acceptable political solution, based on compromise, which will provide for the self-determination of the people of Western Sahara’.2

Today, 80% of Western Saharan territory is controlled by Morocco, which is responsible for ensuring the human rights of the people in the territory. Individuals and organisations working for the self-determination of the Sahrawi people continues to be subjected to human rights violations. According to Moroccan law, questioning of the country’s territorial integrity is prohibited, thus limiting the freedom of expression, association and peaceful assembly.3 Approximately 100 000 Sahrawi refugees live in refugee camps near Tindouf, Algeria, highly dependent on humanitarian assistance.4 Since the annexation in 1975 Morocco has encouraged around 420,000 Moroccan citizens to settle in Western Sahara territory which further complicates the peace process.5

1_{J. Soroeta Liceras, International law and the Western Sahara conflict (Oisterwijk: Wolf Legal Publishers, 2014), 32-33,}

43-47.

2_{United Nations Security Council (UNSC) Res 2494 (30 October 2019) UN Doc S/RES/2494.}

3_{Regeringskansliet, ‘Västsahara – Mänskliga rättigheter, demokrati och rättsstatens principer: situationen per den 30 juni}

2019’, Swedish Ministry for Foreign Affairs (2019), 1.

4_{The EU is the largest donor to the UN World Food Programme’s work in the refugee camps in Algeria. It covered 30 % of}

the funding requirements for the 2020 operation. United Nations Food Programme, ‘European Union supports WFP food assistance in refugee camps in Algeria’, WFP (29 April 2020). See further United Nations Food Programme, ‘Algeria’, WFP (2021).

5_{The data is based on information from the High Planning Commission (Morocco) from 2015. However, according to I.}

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6 In the year 2000, the Euro-Mediterranean Association Agreement between the EU and Morocco was concluded for an enhanced political dialogue and the gradual establishment of a free trade area. A Liberalisation Agreement which extended the Association Agreement entered into force in 2012 and was amended in 2019, followed by a renewed Fisheries Agreement in 2019. Negotiations for a Deep and Comprehensive Free Trade Area between the EU and Morocco were launched in 2013 and are still ongoing. In 2004, the European Neighbourhood Policy was created in which Morocco was given ‘Advanced status’ in 2008. At the last Association Council meeting between Ministers of the EU and Morocco in 2019, a Joint Declaration was adopted which affirmed a mutual aim to further deepen the partnership in areas including values, economy and social cohesion, knowledge, and security.6

While the EU extends its political cooperation and bilateral trade agreements with Morocco, it has not taken a clear stance against the Moroccan occupation of Western Sahara.7_{The EU’s} institutions do not recognise Morocco’s sovereignty over Western Sahara, yet they refrain from calling it an ‘illegal occupation’ or ‘illegal annexation’, as opposed to for example its reaction to Russia’s annexation of Crimea in 2014.8_{In fact, Western Sahara was not mentioned in the} Association Agreement or any of the policy documents concluded before 2016 when the Court of Justice of the European Union (CJEU) delivered its first judgement concerning EU-Morocco agreements.

The CJEU has in two separate cases referred to international law and concluded that agreements between the EU and Morocco are legally valid but does not apply to parts of the Western Sahara territory controlled by Morocco. First, in its judgment in the Front Polisario case of 2016 9 the CJEU sitting in Grand Chamber set aside a previous ruling of the General Court which had partly annulled the 2012 Liberalisation Agreement between the EU and Morocco.10 Recalling

March in 1975 when Morocco’s King Hassan II organised 350,000 voluntary Moroccan citizens to march unarmed across the Moroccan border. I. Barreñada, ‘Western Saharan and Southern Moroccan Sahrawis: National Identity and Mobilization’, in R. Ojeda-Garcia, I. Fernández-Molina & V. Veguilla, eds., Global Regional and Local Dimensions of Western Sahara’s

protracted conflict (New York: Palgrave Macmillan, 2016), 291.

6_{European Commission, ‘Morocco’, European Neighbourhood Policy and Enlargement Negotiations (7 January 2021).} 7_{The terms ‘occupation’ and ‘annexation’ are here used with reference to their definition in international law. The legal}

concept of ‘occupation’ was first established in the Hague Convention (IV) Article 42: ‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’ Occupation is not unlawful by definition, but may be defined as illegal by governments or international organizations. See B. Coppieters, ‘’Statehood’, ‘de facto Authorities’ and ‘Occupation’: Contested Concepts and the EU’s Engagement in its European Neighbourhood’’, Ethnopolitics, 17:4 (2018), 351-352.

8_{Council of the European Union, ‘Ukraine: Declaration by the High Representative on behalf of the European Union on the}

illegal annexation of Crimea and Sevastopol’, Consilium - European Union (5 February 2021).

9_{Case C-104/16 P Council of the European Union v Front populaire pour la libération de la saguia-el-hamra et du rio de}

oro (Front Polisario) [2016] EU:C:2016:973.

10_{Case T-512/12 Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) v Council of the}

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7 the UNGA Resolution 2625 (XXV), which gives Western Sahara the status of a non-self-governing territory accorded by the principle of self-determination, the Grand Chamber established that the people of Western Sahara must be regarded as a ‘third party’. Recognising the general international law principle of the relative effect of treaties, the Court held that an EU international agreement cannot be entered without the consent of a third party. Since the people of Western Sahara had not expressed their consent to the implementation of the agreement, the Grand Chamber ruled that the scope of the agreement must be interpreted to not include Western Sahara, contrary to the interpretation of the General Court.

Second, in its judgment in the Western Sahara Campaign UK case of 2018, the CJEU, again in Grand Chamber, addressed the validity of the 2007 Fisheries Partnership Agreement between the EU and Morocco and the 2013 implementing Protocol. The dispute concerned the interpretation of its scope and whether it permitted products originating in Western Sahara from being imported into the EU free of customs duties. Referring to its previous conclusion on the territorial scope of agreements in the Front Polisario case, the Grand Chamber ruled that the agreements did not apply to the waters adjacent to Western Sahara. The Court emphasised the obligation of the EU to observe rules of international law, referring specifically to the principle of self-determination and the principle of the relative effect of treaties. Further, the Court dismissed the description of Morocco as an occupying power or ‘de facto administrative power’ of the territory of Western Sahara.11

Consequently, the CJEU has recognised the right to self-determination of the Sahrawi people, a customary principle of international law which defines the right of a people to determine its own destiny, including the right to natural resources of its territory. However, the renewed 2019 EU-Morocco Liberalisation Agreement extended the tariff preferences to products originating in Western Sahara, allowing further exportation of products from the disputed territory. According to the Council decision on the conclusion of the agreement, the Commission has ‘taken all reasonable and feasible steps in the current context to adequately involve the people concerned in order to ascertain their consent to the agreement’.12_{Further, the Commission’s} 2020 impact report confirms that the agreement is resulting in benefits for Western Sahara and its population in terms of exports, economic activity and employment. A similar reasoning can

11_{Case C-266/16 Western Sahara Campaign UK v Commissioners for Her Majesty's Revenue and Customs and Secretary of}

State for Environment, Food and Rural Affairs [2018] EU:C:2018:118.

12_{Council decision (EU) 2019/217 of 28 January 2019 on the conclusion of the agreement in the form of an Exchange of}

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8 be seen in the negotiation of the 2019 Sustainable Fisheries Agreement. Its scope includes the waters adjacent to the territory of Western Sahara which the Council argues is a necessity to ensure ‘sustainable exploitation of the natural resources’.13_{Yet, the people of Western Sahara} is not party to any of the agreements which authorises the exploitation of their natural resources, and reduces the human rights protection aspect to a possible spillover effect of socio-economic development.14

Given the recent court rulings on the debated subject of territorial sovereignty and self-determination in Western Sahara, the development of the EU-Morocco partnership raises several questions regarding the promotion of human rights in the EU external policy. According to the EU action plan on human rights and democracy 2020 – 2024, which defines the EU’s priorities in its relations with third countries, human rights and democracy will be promoted consistently and coherently in all areas of the EU’s external action, including trade. The action plan also stresses the importance to ensure coherence between the EU’s internal and external policies, reaffirming the EU’s commitment to further advancing universal values for both EU citizens and third-country nationals.15_{Since the EU is one of the world’s largest trade powers,} its trade activities and guiding human rights principles will undoubtedly impact the advancement of human rights for non-EU nationals. Drawing upon this context, this thesis examines the human rights aspect of EU trade agreements in the context of the disputed territory of Western Sahara.

1.2 Previous research

Western Sahara is subject of extensive research, but the protracted conflict and peace process has been neglected in favour of research on more recent conflicts regarding disputed territories and occupation, such as Crimea or Nagorno-Karabakh, as well as conflicts that attract wide international attention for political, ideological or religious reasons, like the Israeli-Palestinian conflict. The Western Sahara conflict has been called a ‘forgotten’ or ‘old’ conflict, which is evident in the limited up-to date research. However, a valuable source for a multilevel analysis of the central developments of the conflict is Global Regional and Local Dimensions of Western

Sahara’s protracted conflict, edited by Raquel Ojeda-Garcia, Irene Fernández-Molina and 13_{Council Decision (EU) 2019/441 of 4 March 2019 on the conclusion of the Sustainable Fisheries Partnership Agreement}

between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement (OJ L 77, 20.3.2019), para. 10.

14_{European Commission, Commission Staff Working Document: 2020 Report on the benefits for the people of Western}

Sahara on extending tariff preferences to products from Western Sahara, SWD(2020) 404 final (Brussels, 23.12.2020), 20.

15_{European Commission, Joint Communication to the European Parliament and the Council EU, Action Plan on Human}

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9 Victoria Veguilla. According to Fernández-Molina, the conflict has been reshaped by the development of different scenes or geopolitical scales over the 40 years of its continuation.16 It is essential here to mention the Arab uprisings that shook the region in 2011. Pro-democracy protests were held in both Morocco and Western Sahara. Yet, it did not bring significant change to EU-Morocco relations, according to an assessment by Silvia Colombo and Benedetta Voltolini. Instead, the EU’s approach to democracy promotion in its policies towards Morocco continued to favour stability and the status quo in the region.17 This provides a reason to further examine the partnership and trade agreements between the EU and Morocco.

A large amount of research has been conducted in the area of the EU’s external action, including trade relations and its impact on third-country nationals. This field has been expanded by new treaties, amendments, and policies, such as the Maastricht Treaty of 1992 which opened for the development of a Common Foreign and Security Policy. Additionally, the Euro-Mediterranean Partnership, established through the Barcelona Declaration of 1995, and the subsequent European Neighbourhood Policy of 2004, has led to contributions in the field of regional integration. Perhaps the most influential treaty has been the Treaty of Lisbon (ToL), which united the political and legal dimensions of the EU, increased the legislative powers of the Parliament, and gave the Charter the status of primary EU law.18

Law reviews and law journal articles in areas covering the EU external action, specifically human rights commitments and obligations, has contributed to the field with in-depth analysis and critique, as well as linking different legal sources and systems. Juan Soroeta Liceras’

International Law and the Western Sahara Conflict is useful for the understanding of the right

to self-determination and the elements of statehood under international law.19 Several critical reviews of the human rights situation in Western Sahara have been published in the recent years, including Giuliana Laschi and Marco Balboni’s work The European Union approach towards

Western Sahara20 and Profit over peace in Western Sahara, edited by Erik Hagen and Mario Pfeifer.21 These anthologies, with contributions from writers from different fields, have further

16_{I. Fernández-Molina, ‘Introduction: Towards a Multilevel Analysis of the Western Sahara Conflict and the Effects of its}

Protractedness’, in R. Ojeda-Garcia, I. Fernández-Molina & V. Veguilla, eds., Global Regional and Local Dimensions of

Western Sahara’s protracted conflict (New York: Palgrave Macmillan, 2016), 3.

17_{S. Colombo & B. Voltolini, ‘Business as Usual in EU Democracy Promotion Towards Morocco: Assessing the Limits of}

the EU's Approach towards the Mediterranean after the Arab Uprisings’, L'Europe en Formation, 1:371 (2014).

18_{Sources for a historical background of the EU include S. Keukeleire & J. MacNaughtan, The Foreign Policy of the}

European Union (Basingstoke: Palgrave Macmillan, 2008) and M. Cremona & B.D. Witte, eds., EU foreign relations law: constitutional fundamentals (Oxford: Hart, 2008).

19_{Soroeta Liceras, International law and the Western Sahara conflict.}

20_{M. Balboni & G. Laschi, eds., The European Union approach towards Western Sahara (Brussels: P.I.E. Peter Lang, 2017).} 21_{E. Hagen et al., Profit over peace in Western Sahara: How commercial interests undermine self-determination in the last}

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10 widened the frame of the subject. The issue of the EU’s external activities in the context of Western Sahara has been explained from various more or less critical perspectives– from law to economics, political science and social science. However, research conducted after the last CJEU judgment regarding Western Sahara delivered in 2018 is limited. This thesis provides an up-to-date analysis, combining legal aspects of the issue with a theory from the social sciences for an interdisciplinary approach.

1.3 Purpose of the study and research questions

The issue concerning the impact of the EU on the people of Western Sahara and its right to self-determination demonstrates that the EU external action is problematic when applied in occupied territories, considering the EU’s obligation to respect human rights in its external action. Further, the issue highlights that the combined role of the EU as a political actor in trade and a global promoter for human rights is contradictory. The purpose of this thesis is to analyse the external actions of the EU concerning Western Sahara from both a legal and a social justice perspective, in the context of the extensive protection of fundamental human rights in EU law, including CJEU case law. Thus, the thesis aims to examine the interplay between interests and values inherited in the external action of the EU.

The legal perspective is covered by a legal doctrinal analysis in which the research question if and how the EU’s external action affecting Western Sahara complies with EU law is assessed. While external action may encompass various sources, it is here examined in the context of trade agreements which can be considered concrete manifestations of the EU’s external action. Focus is on the use of the human rights clause – an essential elements clause of international agreements of the EU which defines the parties’ commitments and obligations and provides a mechanism for fundamental rights protection. Compatibility with EU law is assessed through the CJEU’s judicial review of trade agreements, with reference to the EU Treaties as well as the Court’s own case law.

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11 As such, the final conclusion can contribute to a continued discussion on the EU’s approach to occupied territories while considering its position as a global human rights defender and promoter.

1. 4 Research methods and materials

Due to its interdisciplinary character, this research is conducted through a set of different research methods; case study, legal doctrinal analysis but also non-legal methods formed by a theoretical framework of social justice theory. Case studies aim to gain in-depth insight into a particular situation through a combination of data sources. They may also be used to distinguish a specific ideological approach, thus able to encompass different approaches to the data.22 The chosen case of this study is the current situation of the people of Western Sahara, as well as the future prospects for its right to self-determination, analysed from two different perspectives. My case is not only delimited by the geographical areas of Western Sahara and Morocco, but also by the scope of the EU external action and EU law.

The research question, if and how the EU external action affecting Western Sahara complies with EU law, is answered in a doctrinal analysis of three separate agreements between the EU and Morocco, as well as of CJEU case law. I begin with identifying the legal sources of human rights promotion and protection as well as provisions for entering trade agreements within EU law, which apply to EU’s institutions in their external activities. A short introduction to the historical context in which the human rights clause was developed is also included to explain its purpose and application. To examine how the external actions complies with EU law, I have chosen three relevant agreements between the EU and Morocco as concrete manifestations of the EU external action which reflects historical and current positions as well as future strategies.

The human rights clauses of the agreements are interpreted through key legal principles of EU law and international law, supported by secondary sources including legal literature. Focus for the analysis is the right to self-determination of the people of Western Sahara. Further, I critically evaluate the effectiveness of the human rights clause in EU-Morocco agreements as part of the larger human rights protection scheme in EU law. Thus, the agreements form the primary material of the thesis together with interpretations of the CJEU in its two judgments delivered in 2016 and 2018. Aside the Court’s jurisprudence, which is an authoritative source within EU law, two opinions of Advocate General Wathelet are included to broaden the

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12 analysis. While not legally binding, the opinions of the Advocate General may provide an independent and comprehensive examination of the specific case as well as critically assess relevant EU case law. To examine whether the EU follows the rules referred to in the agreements, in other words, if the EU external action affecting Western Sahara complies with EU law, I summarise and analyse the findings in a concluding discussion.

The conclusions of the doctrinal analysis are thereafter examined in a theoretical discussion in which I apply a theory of social justice. The objective of the theoretical discussion is to widen the perspective, thus moving from a doctrinal analysis to interdisciplinary research.23 Ideas from the philosophical, sociological, and political areas are used to assess matters including the role of the EU as a political non-state actor in issues of human rights as well as political injustices caused by globalisation. Following a short conclusion of the discussion, a final step includes new hypotheses on how the current issues tied to the self-determination of the people of Western Sahara as linked to the EU external action may be solved. Moreover, the final discussion makes room for ideas that can be applied to the policies of other international organisations in relation to claims for social justice in occupied territories or in communities where certain groups have limited opportunities to political participation.

1.5 Theoretical framework

Legal doctrine can be described as an ‘empirical-hermeneutical discipline’ with interpretation as its core. Empirical research is used to support the arguments underpinning the interpretations of the law and legal principles.24 Unlike descriptive research whose purpose is mainly explanatory, normative research includes both elements of describing and systematising norms as well as taking normative positions among different values and interests in search of ‘better law’. When looking for ways to improve the law, especially in reference to moral or political convictions, empirical research from external sources such as philosophy and sociology may be required.25 The theoretical framework for this thesis is formed by a critical evaluation of EU primary law and CJEU case law, including the Court’s use of legal rules and principles derived from the EU treaties as well as treaties in international law and human rights law. For the

23_{P. Chynoweth, ‘Legal research’ in A. Knight & L. Ruddock, eds., Advanced Research Methods in the Built Environment}

(Hoboken: John Wiley & Sons, Ldt, 2009), 30.

24_{M. Van Hoecke, ‘Legal Doctrine: Which Method(s) for What Kind of Discipline?’, in M. Van Hoecke, ed., Methodologies}

of legal research: what kind of method for what kind of discipline? (Oxford: Hart, 2011), 3.

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13 purpose of developing the law, the findings are analysed in light of Nancy Fraser’s theory of social justice.

Nancy Fraser is one of the most prominent critical theorists of today, whose work on social and political theory as well as feminist theory has highly contributed to the discourse. Her theory on social justice has been developed over time, originally focusing on recognition and redistribution but subsequently widened with a third, political dimension: representation. The argument builds on Rawl’s liberal theory on distribution, whose premise Fraser interprets as it is ‘only by overcoming institutionalised injustice that we can create the ground on which other virtues, both societal and individual, can flourish’. Fraser argues that Rawl’s original position for determining who deserves moral consideration is too restrictive and needs to take into account that justice may be misframed. While Rawls defines this frame as the principle of formal citizenship, Fraser seeks to address the unjust exclusion of subjects of justice and widen the frame to a transnational or global order.26

In Scales of Justice: Reimagining Political Space in a Globalizing World, Fraser claims that the understanding of social justice as understood and formed by the Keynesian-Westphalian

system has been superseded by globalisation.27 The modern system of supranational organisations and global issues requires a new framing of justice to understand its link to who counts as subject of justice, and how one should determine the who.28 The political dimension complements the economic and cultural dimensions of redistribution and recognition, by studying political injustices that exist between members within an enclosed political environment affecting their ability to equal participation in social interaction. Here, a meta-political injustice may also be found when the enclosed meta-political systems fail to recognise national matters as transnational and thus excludes non-members.29

Fraser describes traditional political communities primarily as nation states, but I find no reason not to also include the EU with Member States bound by a common judicial system and well-developed policies in many areas. Consequently, ‘non-members’ can be both citizens excluded from a national frame of justice or excluded from the EU frame of justice. The argument of political exclusion can be traced back to Hanna Arendt’s paradox of human rights and her analysis of the crisis of the nation state which Fraser expands and applies to present dangers to

26_{N. Fraser, ‘On Justice: Lessons from Plato, Rawls and Ishiguro’ New Left review, 74 (2012).}

27_{N. Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (Cambridge: Polity, 2008), 1.} 28_{Fraser, Scales of Justice, 2-5.}

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14 society.30 Arendt’s influential thoughts on minority rights and the right of stateless persons become relevant when institutions fail to uphold the principle of imparity, but it is not the totalitarian elements of political communities that is the focus of this thesis.

With her critical feminist theory Fraser positions herself between a modernist and postmodernist take on justice in relation to universality. Another theorist within the same discourse is Seyla Benhabib, although somewhat more critical of postmodern theory.31 Fraser and Benhabib are both inspired by Habermas universal validity claim to justify basic rights and morals. However, Benhabib rejects his derivation principle that builds on the objective stance of the generalized other, claiming that a certain identity definition does not leave room for difference.32 Fraser, on the other hand, argues that the politics of universal rights are the politics of redistribution, and the politics of concrete, particular needs, are the politics of recognition. According to Fraser, the two approaches must be empathised together, unlike theories that tend to emphasise with one before the other.33_{Thus, the separate theories of Benhabib and Fraser} can favourably be applied in political practice, as oppose to only evaluate philosophical ideals of justice and morals. In recent works, Fraser highlights the role of political non-state actors in the globalising era, while Benhabib’s theory tends to focus on citizenship as linked to nationality of a nation-state. When maintaining the division between the national and the global sphere, Benhabib’s theory falls short in describing the relationship between state sovereignty and human rights. Hence, I find Fraser’s theory more relevant for the assessment of the EU’s external action and how it might affect individuals in non-self-governing territories.

The aspect of universalism in Fraser’s theory can facilitate an analysis of the institutional power and human rights obligations of the EU, and with the critical feminist approach the issues related to inclusion or exclusion from the traditional frame of justice may be better understood. Such perspective may also consider the Sahrawi people’s right to self-determination, which effective realisation is currently impeded by Morocco. The aspect of globalisation in Fraser’s theory is suitable for analysing the EU, as an international organisation aiming to strengthen its trade relations and enhance political cooperation with countries and organisations in its surrounding regions.

30_{Fraser, Scales of Justice, 132-134.}

31_{M. Canaday, ‘Promising alliances: the critical feminist theory of Nancy Fraser and Seyla Benhabib’, Feminist review, 74}

(2003), 51-52.

32_{S. Benhabib, ‘In Defense of Universalism. Yet Again! A Response to Critics of Situating the Self’, New German Critique,}

62 (1994), 184.

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15 To conclude, the theoretical perspective of this thesis is built on both the interpretations of legal sources and a critical feminist political theory of social justice. With this combined theoretical framework, I can interpret and evaluate the legal basis of the EU’s external action as well as the underlying social and political values forming the external action to answer my research question.

1.6 Delimitations

To limit the scope of the research, I have chosen to analyse three agreements between the EU and Morocco. Of all EU-Morocco agreements, these three meet the criteria that they are currently in force and each includes a human rights clause. The analysis encompasses two judgments on EU-Morocco agreements issued by the Grand Chamber of the CJEU, concerning agreements which were replaced in 2019. However, the new agreements did not adjust their scope, but still include the territory of Western Sahara. Thus, the Court’s case law on previous agreements is highly relevant. Less consideration is given the judgement from the General Court of 2015 since it was later set aside by the Grand Chamber. Focus for the thesis is the EU, thus leaving out Moroccan law as well as regional international law that covers Morocco and Western Sahara, such as African Union treaties and regimes. Sources of international law, human rights law as well as documents of the UN Security Council and the ICJ is limited to their reference in EU law and in CJEU case law. Although external jurisdiction could impact the scope of EU trade agreements, the context of this thesis is formed by the actions of EU institutions in relation to the protection and promotion of human rights in international agreements.

1.7 Structure

The structure of this thesis is formed by the research question, placing emphasis on the legal doctrinal analysis while applying the theoretical perspective in a following shorter, yet in-depth, discussion.

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16 which result is discussed in a conclusion. To widen the analysis, I thereafter examine the judgements of the CJEU as well as the opinions of the Advocate General. This second step of the legal doctrinal analysis is also summarised in a conclusion. The final section of chapter two connects the findings from the analysis of the agreements with the case law and the legal comments in a discussion and conclusion.

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17 2

Human rights obligations in EU-Morocco agreements

This thesis examines both the trade as well as the human rights aspect of the EU external action, with focus on international trade agreements. While the EU trade relations and policies are covered by the Common Commercial Policy (CCP), and to some extent the Common Foreign and Security Policy (CFSP), the framework of human rights protection in the EU can be described as a horizontal dimension, covering all areas of the EU external action.

2.1 The EU external action and competence to conclude international agreements

The EU external action can be defined as competences that ‘fall within the framework of the EU’s relations and partnerships with non-EU countries and international, regional or global organisations’.34 _{External action includes both external policy whose objective is to influence a} certain external environment, and the behaviour of the actors within it to pursue interests, values and goals, as well as external relations, which concerns the maintaining of relations with external actors, not necessarily seeking change.35

The EU external trade policy, or CCP, is at the origin of the EU as an international actor and has been developed gradually over the years to encompass several trade-related areas under the remit of EU exclusive competence. In 1958, the Treaty establishing the European Economic Community (EEC Treaty) became effective, creating a wider common market based on four freedoms: the free movement of people, goods, services, and capital. Further, it laid the foundation of a customs union. Following the increase of international trade and globalisation, the CCP became essential in ensuring the competitiveness of the EU.36 In 1971, the CJEU delivered the landmark ERTA ruling, introducing the ‘implied powers doctrine’, which enabled the Community to negotiate and conclude external agreements in an array of areas and policy fields. The doctrine, expressed in Article 3(2) TFEU, delimited the autonomous powers of the Member States on the international fora, to the benefit of the Community.37

The conclusion of the ToL in 2009 marked the next key development for EU trade. The EU was given full legal personality through Article 47 TEU and the exclusive EU competence was extended to cover more trade issues and foreign direct investment. The treaty also granted the Parliament joint powers with the Council in forming the legislative framework for trade and

34_{Publications Office of the European Union, ‘The European Union’s External Action’, EUR-Lex Access to European Union}

law (n.d).

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18 having a more active role in the negotiation and ratification of trade agreements.38 Further, it abandoned the former three-pillar system, introduced with the Maastricht Treaty, which included the European Community, the Common Foreign and Security Policy, and the Co-operation in Justice and Home Affairs.39 Instead, trade was integrated in the EU external action together with foreign policy, development, humanitarian aid and international environment policy. Bound by the same principles within the framework of the EU external action, this called for enhanced coordination between institutions and the policy goals of the respective areas.

International agreements between the EU and third countries are categorised as sui generis, separate from primary law or secondary legislation. Through the ToL, the principles for the external competences of the EU were established in the TFEU. Article 216 TFEU determines the conditions under which the EU can enter into agreements, and Article 207 TFEU governs the trade policy of the EU. The distribution of competences, established by the principle of conferral in Article 5 TEU, also applies in international agreements. Article 5 TEU implies that the EU ‘shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’. These competences are defined in Articles 2-6 TFEU. Article 3 TFEU defines the areas in which the EU has exclusive competence to enter international agreements, including trade agreements. In areas where the EU does not have exclusive competence, set out in Article 4 TFEU, treaties require signatures by the third country, the EU, and EU Members States. These agreements are called ‘mixed agreements’.40 The 2000 EU-Morocco Association Agreement is an example of such agreement. The mandate to conclude international agreements is divided between the Commission, the Council, and the Parliament. Negotiations of trade agreements are led by the Commission after authorisation by the Council. The provisions are regulated in Articles 207 and 218 TFEU. The final agreement must be approved by the Council and the Parliament after being signed and ratified by the EU and the third party, and in some cases also the Member States.41

2.2 Human rights protection within the EU legal order

The promotion of human rights has been an objective of the EU’s external action since the adoption of the Maastricht Treaty. When the ToL entered into force in 2009, it largely affected the EU’s external relations as well as the norms promoted by the EU externally. As the Charter

38_{S. Woolcock, ‘The Treaty of Lisbon and the European Union as an actor in international trade’, ECIPE Working Paper, 1}

(2010), 2.

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19 became legally binding, the promotion of human rights through the EU’s external activities became more complex since it extended the existing framework of EU fundamental rights. The CJEU has played a central role in this development. Further, the Court assesses the compatibility of EU international agreements with EU law. The following section presents the legal sources of human rights promotion and protection within EU law, which apply to EU’s institutions in their external activities, and some of the most influential cases for its development.

Prior to the adoption of the Charter on October 2, 2000, the protection of fundamental rights in EU law was upheld by the CJEU. The original EEC Treaty did not include any provisions on fundamental rights, and in cases where a party invoked fundamental freedoms the CJEU referred to the national legal systems.42 When the Court established the principles of direct effect and primacy of EU law in the Member States, this approach turned out to be untenable since national courts would have to give preference to EU-rules before national legislation. In the Stauder ruling delivered in 1969, the CJEU stated for the first time that fundamental human rights formed part of the ‘general principles of EU law’ (then community law).43_{The following} year, the CJEU further ruled in the Internationale Handelsgesellschaft case that the respect of the general principles is ensured by the Court.44 The Nold judgment of 1974 reinforced the stance taken by the Court and added ‘international Treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories’, as a source of EU law besides the common constitutional traditions of Member States.45

One of the most important international treaties for the EU, mentioned in the Nold case, was the European Convention for the protection of Human Rights and Fundamental freedoms (ECHR). In the Maastricht Treaty, which entered into force on 1 November 1993, the Nold case law was integrated in Article 6; ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States as ‘general principles of Community law’’. The lack of a written catalogue of rights remained an issue, however. Two main proposals were discussed on several occasions in which the first suggested that the EU would accede to the ECHR. The second

42_{Case 1/58 Friedrich Stork & Cie v. High Authority of the European Coal and Steel Community [1959] EU:C:1959:4.} 43_{Case 29/69 Erich Stauder v City of Ulm - Sozialamt [1969] EU:C:1969:57.}

44 _{Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970]}

EU:C:1970:114.

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20 alternative was for the EU to adopt its own charter of rights. This proposal was followed through and on 7 December 2000, the EU proclaimed the Charter of Fundamental Rights of the European Union (the Charter). It became a legally binding element of EU law with the entry of force of the ToL in 2009.46 The Charter was given the same legal value as the EU Treaties and is now considered a source of primary EU law, which means that all EU institutions and Member States are bound by the rights enshrined in the Charter.47 In practice, this entails that all legislative proposals and legal acts must undergo an impact assessment to address its compatibility with fundamental rights.48 The general provisions of the external action is stated in Article 21 TEU.49 Further, the ToL committed the EU to accede to the ECHR through Article 6(2) TEU but an accession agreement has not yet been reached. In addition to a long tradition of referring the general principles of EU law to the provisions in the ECHR, all rights set out in the ECHR are now covered by the Charter.50

Accordingly, the general principles of EU law, previously an unwritten catalogue of fundamental rights, has gradually been incorporated into the constitutional fabric of the EU legal order. The CJEU has continued to develop its case law for ensuring individuals a wide range of fundamental rights. Since the adoption of the Charter, the Court’s interpretive methods in cases related to fundamental rights have changed, now frequently referring to the Charter in its case law. Important to note, however, is that the general principles of EU law for the protection of fundamental rights still apply. This allows the CJEU to intervene in the development of the fundamental rights framework by integrating new rights not included by the Charter, as a response to changes in society in EU Member States.51

Adding to its case law on the EU’s external competences, the Court is responsible for the assessment of EU international agreements and their compatibility with EU law.52 A considerable part of the EU’s external competences includes relations and agreements with third countries. As of 2020, the EU has 45 applied trade agreements covering 77 partner countries

46_{Article 6(1), 6(2) TEU.}

47_{Article 51 Charter of Fundamental Rights of the European Union.}

48_{European Commission, ‘Impact assessments’, European Commission (2016).}

49_{As expressed in Article 21(1) TEU: ‘The Union's action on the international scene shall be guided by the principles which}

have inspired its own creation, development and enlargement, and 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’.

50_{H. Andersson, ‘EU-rättens skydd för grundläggande rättigheter’, in J. Paju, ed., Kritiskt tänkande inom Europarätten: Sex}

reflekterande artiklar (Sweden: Ragulka Press, 2018), 84-86.

51_{G. Arestis, ‘Fundamental rights in the EU: Three years after Lisbon, the Luxembourg perspective’, Research Paper in Law}

(Cooperative Research Paper), 2 (2013), 5.

52_{C. Brière & A. Navasartian, ‘Lex generalis and the primacy of EU law as a source of the EU’s duty to respect human rights}

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21 and seven Economic Partnership Agreements with 32 partners.53 The mechanism of advisory opinions is set out in Article 218(11) TFEU, which allows the Court to review ‘envisaged international agreements’ and their compatibility with the Treaties before entering into force. A second mechanism of judicial review is formed by a system of legal remedies found in the Treaties, including various legal proceedings. Infringement proceedings are regulated in Articles 258-260 TFEU, annulment proceedings in Articles 263 and 264 TFEU, and preliminary references in Article 267. Through these remedies the Court has been able to shape the scope of the EU’s external action as a result of several judgments and advisory opinions.54 Furthermore, they allow EU institutions, individuals, organisations or other actors to challenge the compatibility of international agreements or its implementing protocol with EU law after it has entered into force. The remedies can thus be seen as an important part in ensuring long-term compliance with EU law.55

In addition to the mechanisms of the CJEU, the extensive framework of human rights protection covering the EU’s external actions includes several other instruments to ensure the EU institutions’ compliance with EU law. Two instruments relevant in this context include the impact assessment report and the annual report on the application of the Charter, both carried out by the Commission. Impact assessments are conducted during the preparation phase of new legislative or non-legislative proposals, including international agreements, to examine their possible economic, social, or environmental impacts. The assessment reports are subsequently examined by the EU lawmakers, the Parliament, and the Council, when considering a new proposal.56 The annual report is examined, debated, and commented by both the Council and the Parliament.57 On 2 December 2020, the Commission presented a new Strategy to strengthen

the application of the Charter of Fundamental Rights in the EU which reaffirms the

implementation of the Charter in the EU, including in the external action priorities.58

53_{European Commission, Report from the Commission to the European Parliament, the Council, the European Economic and}

Social Committee and the Committee of the Regions on Implementation of EU Trade Agreements 1 January 2019 - 31 December 2019, COM/2020/705 final (Brussels, 12.11.2020).

54_{The CJEU introduced the implied external competences doctrine in Case 22/70 Commission of the European Communities}

v Council of the European Communities, European Agreement on Road Transport [1971] ECLI:EU:C:1971:32, which is now

established in Articles 3(2) and 216(1) TFEU.

55_{Brière, & Navasartian, ‘Lex generalis and the primacy of EU law as a source of the EU’s duty to respect human rights}

abroad: lessons learned from the case-law of the CJEU’, 16.

56_{European Commission, ‘Impact assessments’, European Commission (2016).}

57_{European Parliament, ‘The protection of fundamental rights in the EU’, European Parliament (December 2020).} 58_{European Commission, Communication from the Commission to the European Parliament, the Council, the European}

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22 A third important instrument for the protection and promotion of human rights in the EU is the

Strategic Framework on Human Rights and Democracy, adopted by the Council in 2012, which

sets out principles, objectives, and priorities to improve the effectiveness and consistency of EU policy in those areas. Its legal basis is provided by Article 21 TEU. To implement the framework, the EU has adopted three action plans respectively in 2012, 2015 and in 2020. The

EU Action Plan on Human Rights and Democracy 2020-2024 defines the promotion of human

rights and democracy as a key principle in the EU’s relation with partner countries. Further, it stresses the importance of a multilevel global system for these principles that will include the business sector, civil society and social partners.59

Combined, these mechanisms and instruments constitute an extensive legal framework, including monitoring instruments and policy documents to ensure the protection and the promotion of human rights in the EU external action.

2.3 The human rights clause

The EU’s international trade and cooperation agreements all include a ‘human rights clause’ or ‘democracy clause’ as an essential elements clause. The background of human rights clauses in EU policies can be traced to the aftermath of the human rights atrocities committed by Uganda under the rule of Idi Amin in the late 1970s. The first Lomé Convention, an aid-and-trade agreement between the European Economic Community (EEC) and 46 countries in Africa, the Caribbean, and the Pacific, did not include legal basis to terminate agreements in case of serious human rights violations. Consequently, the EEC was unable to stop Stabex payments to Uganda during this time which led the EEC to seek to incorporate a suspension clause when the treaty was later renewed.60 The clause entitled either party to suspend the agreement in a situation where the other party failed to comply with specified human rights norms. In 1995, the Council

59_{European Commission, Joint Communication to the European Parliament and the Council, EU Action Plan on Human}

Rights and Democracy 2020-2024, JOIN(2020) 5 final (Brussels, 25.3.2020). See also the European External Action Service, ‘Global Strategy for the EU's Foreign and Security Policy’ (June 2016), which defines the guiding values and objectives for the EU external action: ‘The EU is committed to a global order based on international law, which ensures human rights,

sustainable development and lasting access to the global commons. This commitment translates into an aspiration to transform rather than to simply preserve the existing system. The EU will strive for a strong UN as the bedrock of the multilateral rules-based order, and develop globally coordinated responses with international and regional organisations, states and non-state actors’.

60_{F. Benoit-Rohmer et al., ‘Human Rights Mainstreaming in EU’s External Relations’, Directorate-General for External}

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23 adopted a policy on the inclusion of human rights clauses in all future agreements between the EU and third countries,61 which was refined in 2009.62

The human rights clause is primarily included in political framework agreements, which should be referred to in subsequent trade agreements. Free trade agreements or more comprehensive association agreements with no framework agreement may include the human rights clause alongside the trade or cooperation provisions. When negotiating new agreements, compliance with human rights and democratic norms is not a strict requirement, but it can delay proceedings or postpone agreements from entering into force.63 There has been contrasting views within the EU on whether human rights clauses should be included in both free trade agreements and sectoral agreements. The European Parliament has expressed its support for the inclusion of a human rights clause in all trade and sectoral agreements, which should be modelled on Article 96 of the Cotonou Agreement.64_{The Commission as well as the Council Secretariat has} indicated that sectoral agreements may not be a suitable context to negotiate such a clause.65 The 2018 (sectoral) Sustainable Fisheries Partnership Agreement between the EU and Morocco does however include a human rights clause.66

The exact wording differs but three basic components can be distinguished; first, a clause which refers to one or more specific human rights or human rights frameworks. Secondly, a ‘non-execution’ clause that enables either party to take appropriate measures if the other party violates any of its obligations under the agreement (with the exception of cases of material breach or special urgency). Third, a provision which defines these exceptional cases and confirms that in all cases the appropriate measures must be taken in accordance with international law. Furthermore, the human rights clause may be affected by other provisions, for example establishing a political dialogue, an implementing body, or a dispute settlement clause.67 Depending on the party, different types of human rights clauses are included in EU

61_{Commission of the European Communities, Communication from the Commission on the Inclusion of Respect for}

Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM (95) 216 final (Brussels, 23.95.1995).

62_{European Council, Reflection Paper on Political Clauses in Agreements with Third Countries (Doc 7008/09, 27.02.2009)}

(partially derestricted).

63_{M. Cremona, ‘Extending the Reach of EU Law: The EU as an International Legal Actor’, in M. Cremona & J. Scott, eds,}

EU Law Beyond EU Borders: The Extraterritorial Reach of EU Law (Oxford: Oxford University Press, 2019), 95.

64_{European Parliament, Resolution on the human rights and democracy clause in European Union agreements}

(2005/2057(INI)) (OJ C 290 E/107, 29.11.2006) and European Parliament, Resolution of 25 November 2010 on human rights and social and environmental standards in international trade agreements (2009/2219(INI)) (OJ CE 99/31, 3.4.2012).

65_{F. Benoit-Rohmer et al., ‘Human Rights Mainstreaming in EU’s External Relations’, 36.}

66_{Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco}

ST/12983/2018/INIT (OJ L 77/8, 20.3.2019), Article 2(11).

67_{Bartels, ‘A Legal Analysis of Human Rights Clauses in the European Union’s Euro-Mediterranean Association}

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24 instruments. The clause may also function as a condition to impose certain human rights objectives while the party is ensured commercial benefits, such as reduced tariffs.68

2.4 The human rights clause in EU-Morocco agreements

This section offers a legal assessment of the human rights clause in three relevant trade and mixed agreements between the EU and Morocco. These include the Euro-Mediterranean Association Agreement (2000), the Liberalisation Agreement (2019) which extended and modified the Association Agreement, and the Sustainable Fisheries Partnership Agreement (2019). The purpose is to evaluate if the human rights clause is legally binding for the parties and if it encompasses the principle of self-determination which is closely related to the right to natural resources. The principle is relevant for the export of products from Western Sahara to the EU, regulated in the agreements and central in the CJEU’s judgments on the scope of EU-Morocco agreements.

2.4.1 The Euro-Mediterranean Agreement

The Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (hereafter ‘the Association Agreement’),69 concluded on 26 February 1996 and entered into force on 3 March 2000, created a free trade area between the EU and Morocco that liberated two-way trade in goods. It was encompassed by the Euro-Mediterranean partnership action plan with the objective to create a free trade area through a network of bilateral agreements, launched with the Barcelona summit of 1995.70 The Association Agreement was further developed in 2012 through an agreement on agricultural, agro-food and fisheries products as well as a protocol establishing a dispute settlement mechanism. In 2013, the EU and Morocco launched negotiations for a DCFTA which will build on the 2000 agreement, aiming to enhance the bilateral cooperation on investment, trade, and trade legislation as well as support economic reforms in Morocco.71 However, the negotiations have been halted due to

68_{Morocco receives bilateral assistance through the European Neighbourhood Instrument, which finances the European}

Neighbourhood Policy. See Articles 1, 2, 4 on the objectives and on the ‘incentive-based approach’ of the 2014 regulation (effective until December 21, 2020). European Parliament and the Council of the European Union, Regulation (EU) No 232/2014 of the European Parliament and of the Council of 11 March 2014 establishing a European Neighbourhood Instrument (OJ L 77/27, 15.3.2014).

69_{Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States,}

of the one part, and the Kingdom of Morocco, of the other part (OJ L 070, 18/03/2000).

70_{Balboni & Laschi, The European Union approach towards Western Sahara, 20.}

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25 risks of unpredictable economic consequences, protests from the civil society, and the consequences following the CJEU-judgments regarding Western Sahara.72

The Association Agreement’s preamble refers to the Charter of the United Nations (UN Charter);

CONSIDERING the importance which the Parties attach to the principles of the United Nations Charter, particularly the observance of human rights and political and economic freedom, which form the very basis of the association;

The preamble of international treaties traditionally defines the purpose and sets out the main values to guide its implementation, not establishing any concrete obligations. However, the general rule in Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT) stipulates that ‘treaties shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. According to Article 31(2) VCLT, the context is formed by the text, its preamble, annexes, related agreements, and instruments. Thus, the reference to the principles of the UN Charter in the Association Agreement preamble sets out the framework which must be considered in the interpretation of the treaty.

The term ‘principles’ is a rather vague phrasing that emphasises universally recognised principles, instead of referring to the specific ‘articles’ of the UN Charter.73_{Turning to the} principle of self-determination, the CJEU has in its judgments in the Front Polisario case and the Western Sahara Campaign UK case referred to the principle as it is established by Article 1 UN Charter; ‘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;’ as well as by Article 73 UN Charter; ‘Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognise the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the

72_{G. Van der Loo, ‘Mapping out the Scope and Contents of the DCFTAs with Tunisia and Morocco’, EuroMeSCo Series}

(2016), 19.

73_{Commission of the European Communities, Communication from the Commission to the Council and the European}

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26 system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories […]’.74

In the Front Polisario case, the CJEU refers to the ICJ Advisory Opinion as well as its case law, establishing that self-determination is a customary principle, ‘a principle of international law applicable to all non-self-governing territories and to all peoples who have not yet achieved independence’. The Court further notes that it is ‘a legally enforceable right erga omnes and one of the essential principles of international law’.75

Article 73 UN Charter defines the role of administrative powers in regard to non-self-governing territories and does not entail responsibility of third parties. If the provision set out in the preamble is interpreted to encompass the principle of self-determination as defined by the Article 73, it solely implies positive obligations for Morocco as the administrative power over Western Sahara. The EU, on the other hand, has a negative obligation to respect the principles of the UN Charter in accordance with Article 21 TEU.

Article 2

Respect for the democratic principles and fundamental human rights established by the Universal Declaration of Human Rights shall inspire the domestic and external policies of the Community and of Morocco and shall constitute an essential element of this Agreement.

Article 2 of the Association Agreement can be interpreted as setting out conditions instead of establishing obligations, since it only requires the parties to comply with human rights norms.76 The traditional understanding of the duty to ‘respect’ human rights is that states have a negative obligation not to take measures that violate a given right, in contrast to positive obligations such as ‘protect’ or ‘fulfil’.77 _{Though constituting an essential element of the agreement, it is not} clear which democratic principles and fundamental human rights was established by the UDHR.78 One interpretation would be to respect all rights listed in the UDHR, another would only encompass rights set out customary international law. As previously mentioned, the right to self-determination is considered by the CJEU to have customary law status. Either interpretation of the word ‘established’ thus leads to the conclusion that the principle of

self-74_{Case C-104/16 P Council v Front Polisario [2016] EU:C:2016:973, para. 2-3 and C-266/16 Western Sahara Campaign UK}

[2018] EU:C:2018:118, para. 3-4.

75_{Case C-104/16 P Council v Front Polisario [2016] EU:C:2016:973, para. 88.}

76_{Bartels, ‘A Legal Analysis of Human Rights Clauses in the European Union's Euro-Mediterranean Association}

Agreements’, 380.

77_{F. Mégret, ‘Nature of Obligations’, in D. Moeckli et al., eds., International Human Rights Law (Oxford: Oxford University}

Press, 2010), 130-131.

78_{Bartels, ‘A Legal Analysis of Human Rights Clauses in the European Union's Euro-Mediterranean Association}