299
in its capacity as the “occupying power”, should exercise the rights of this people in
accordance with the principle of the primacy of their interests,
96
and alleged in substance “that the fishery products originating from the waters adjacent to the coast of
Western Sahara are natural resources belonging to” the people of Western Sahara.
97
In relation to this plea in law, the General Court noted that the agreement whose
conclusion was approved by the Decision contested in this case also applied to
Western Sahara and to the products originating from that territory and its natural
resources, “whatever those resources and regardless of whether or not they must be
determined in accordance with the Montego Bay Convention”.
98
Moreover, it ruled
that the Front Polisario did not show in this plea that the conclusion by the Council
of an agreement with a non-Member State concerning a disputed territory was prohibited in all cases.
99
In view of these circumstances, the General Court decided to
reject this ninth plea in law.
100
Ultimately, the General Court ruled that the contested
Council Decision in this case had to be annulled insofar as it approved the application of the above-mentioned agreement to Western Sahara.
From the outset, both Morocco and the Council have considered the General
Court’s judgment in this case to be contrary to their respective interests. On 19
February 2016, the Council brought an appeal against the General Court’s judgment
before the Court of Justice.
101
On 13 September 2016, the General Advocate delivered his Opinion in this appeal, and 3 months later the Court of Justice published its
judgment.
102
Insofar as the ECJ’s interpretive work with regard to UNCLOS provisions is
concerned, this appeal is not at all relevant in this field as it makes no explicit reference to UNCLOS. The Council opted only to invoke several pleas alleging errors of
law in relation, first, to the General Court’s recognition of the Front Polisario’s
capacity to bring proceedings before the ECJ, and, second, that the Front Polisario
was affected directly and individually by the annulled Decision (Council Decision
2012/497/UE).
Finally, it is worth noting that the former United Nations Secretary-General, Mr
Ban Ki-moon, referred to these two cases in his Report on the situation concerning
Western Sahara published of 19 April 2016.
103
This surely underlines the multiple
96 Front Polisario v. Council, para. 190.
97 Ibidem, para. 196.
98 Ibidem, para. 197.
99 Ibidem, para. 198.
100 Ibidem, para. 199.
101 Case C-104/16 P.
102 Council v. Front Polisario.
103 “Moroccan and international investments in Western Sahara and its territorial waters continue to
be a subject of contention between the Government of Morocco and Frente Polisario. On 10
December 2015, the General Court of the European Court of Justice delivered a judgment in the
case of Frente Polisario v. Council of the European Union (case T-512/12) granting Frente Polisario
standing before the Court and annulling the European Union-Morocco agreement on agricultural
products, processed agricultural products, and fish and fishery products insofar as it applies to
Western Sahara. Morocco has denounced this judgment as politically motivated. On 19 February,
The European Court of Justice and the Interpretation of the United Nations Convention…
in its capacity as the “occupying power”, should exercise the rights of this people in
accordance with the principle of the primacy of their interests,
96
and alleged in substance “that the fishery products originating from the waters adjacent to the coast of
Western Sahara are natural resources belonging to” the people of Western Sahara.
97
In relation to this plea in law, the General Court noted that the agreement whose
conclusion was approved by the Decision contested in this case also applied to
Western Sahara and to the products originating from that territory and its natural
resources, “whatever those resources and regardless of whether or not they must be
determined in accordance with the Montego Bay Convention”.
98
Moreover, it ruled
that the Front Polisario did not show in this plea that the conclusion by the Council
of an agreement with a non-Member State concerning a disputed territory was prohibited in all cases.
99
In view of these circumstances, the General Court decided to
reject this ninth plea in law.
100
Ultimately, the General Court ruled that the contested
Council Decision in this case had to be annulled insofar as it approved the application of the above-mentioned agreement to Western Sahara.
From the outset, both Morocco and the Council have considered the General
Court’s judgment in this case to be contrary to their respective interests. On 19
February 2016, the Council brought an appeal against the General Court’s judgment
before the Court of Justice.
101
On 13 September 2016, the General Advocate delivered his Opinion in this appeal, and 3 months later the Court of Justice published its
judgment.
102
Insofar as the ECJ’s interpretive work with regard to UNCLOS provisions is
concerned, this appeal is not at all relevant in this field as it makes no explicit reference to UNCLOS. The Council opted only to invoke several pleas alleging errors of
law in relation, first, to the General Court’s recognition of the Front Polisario’s
capacity to bring proceedings before the ECJ, and, second, that the Front Polisario
was affected directly and individually by the annulled Decision (Council Decision
2012/497/UE).
Finally, it is worth noting that the former United Nations Secretary-General, Mr
Ban Ki-moon, referred to these two cases in his Report on the situation concerning
Western Sahara published of 19 April 2016.
103
This surely underlines the multiple
96 Front Polisario v. Council, para. 190.
97 Ibidem, para. 196.
98 Ibidem, para. 197.
99 Ibidem, para. 198.
100 Ibidem, para. 199.
101 Case C-104/16 P.
102 Council v. Front Polisario.
103 “Moroccan and international investments in Western Sahara and its territorial waters continue to
be a subject of contention between the Government of Morocco and Frente Polisario. On 10
December 2015, the General Court of the European Court of Justice delivered a judgment in the
case of Frente Polisario v. Council of the European Union (case T-512/12) granting Frente Polisario
standing before the Court and annulling the European Union-Morocco agreement on agricultural
products, processed agricultural products, and fish and fishery products insofar as it applies to
Western Sahara. Morocco has denounced this judgment as politically motivated. On 19 February,
The European Court of Justice and the Interpretation of the United Nations Convention…