Western Shara

The legal status of Western Sahara has been clearly articulated through various international legal instruments. In its 1975 advisory opinion, the International Court of Justice (ICJ) concluded that there were no legal ties of territorial sovereignty between Western Sahara and Morocco that would justify Moroccan claims over the territory. The ICJ reaffirmed the right of the Sahrawi people to self-determination. Despite this ruling, Morocco proceeded with its occupation, and in the subsequent decades, it has systematically exploited and plundered Western Sahara’s natural resources—including phosphates, fisheries, and more recently renewable energy.

The United Nations General Assembly and Security Council have consistently recognized Western Sahara as a Non-Self-Governing Territory, implying that its natural resources cannot be exploited without the consent of the Sahrawi people. This principle was reinforced by a 2002 legal opinion from the UN Office of Legal Affairs, which stated that any exploration and exploitation of resources in Western Sahara without the explicit approval of the Sahrawi people would violate international law. Moreover, in 2015 the African Union Legal Counsel issued a landmark Legal Opinion clearly indicating that Morocco is a force of occupation in Western Sahara, that the Sahrawi Republic is the legitimate government of the territory and that all exploration and/or exploitation of the Sahrawi natural resources by Morocco or any other entity is illegal.

The Court of Justice of The European Union Ruling

The Court of Justice of the European Union (CJEU) has reaffirmed the illegality of Morocco’s economic activities in Western Sahara, ruling that EU trade agreements with Morocco cannot lawfully extend to the territory without the explicit consent of the Sahrawi people.

In its October 4, 2024 judgment, the CJEU upheld previous decisions annulling EU-Morocco trade agreements on fisheries and agriculture that unlawfully included Western Sahara. The case, brought forward by the Polisario Front, challenged the inclusion of the occupied Western Sahara in these agreements, arguing that they were concluded without the consent of the Sahrawi people. The court reaffirmed that Western Sahara holds a status “separate and distinct” from Morocco under international law, rendering any economic agreements affecting the territory invalid in the absence of Sahrawi consent.

This ruling reinforces a series of previous judgments by the Court of Justice of the European Union, which have consistently determined that Morocco lacks sovereignty over Western Sahara and therefore cannot legally exploit its natural resources or engage in international agreements that include the Western Sahara.

Despite these legal determinations, European governments, corporations, and financial institutions continue to support Morocco’s economic activities in Western Sahara, particularly in the renewable energy sector. Various EU member states and multinational energy firms have provided financial and technical assistance to Moroccan solar and wind energy projects, many of which are located in the occupied territory. These actions not only contravene international legal standards but also undermine the European Union’s commitment to human rights and the rule of law.

The ruling carries significant implications for EU-Morocco relations, compelling the European Union to reassess its trade policies and economic engagements involving Western Sahara. It also reinforces the legal and ethical obligations of states and corporations, which, under international law and the UN Guiding Principles on Business and Human Rights, must ensure that their economic activities do not contribute to human rights violations or sustain an illegal occupation.

African Court on Human and Peoples’ Rights Ruling

The African Court on Human and Peoples’ Rights [2] has similarly condemned Morocco’s presence in Western Sahara. In its September 22, 2022 ruling, the Court declared Morocco’s occupation a “serious violation of the right to self-determination”, emphasizing that all African Union (AU) member states and non-African states have a legal obligation to facilitate a resolution to the occupation and ensure that the Sahrawi people can fully exercise their right to self-determination.

The ruling reaffirmed the African Union’s official position that Western Sahara remains a partly occupied member state of the Union and stressed that no state should engage in agreements or policies that might support the Moroccan occupation of the country. The Court’s decision strengthens legal arguments against Morocco’s continued presence in the occupied Western Sahara and places a binding obligation on African states to refrain from actions that undermine the Sahrawi people’s rights and territorial sovereignty.

The legal and diplomatic consequences of this decision are significant. As African nations deepen economic and political relations with Morocco, this ruling provides a clear legal framework opposing any agreements that legitimize Morocco’s territorial claims. States and corporations engaged in economic activities in Western Sahara may now face greater legal scrutiny and potential liability under African and international law.