The 2021 EU General Court Decision on Polisario v Council: Some Legal Considerations on the Status of the Moroccan Sahara

The 2021 judgment of the EU General Court holds that ‘Western Sahara’ is separate from Morocco, imposing on Morocco a responsibility to secure Polisario’s consent to its exploitation of natural resources in ‘Western Sahara’ and its adjacent waters, allegedly based on the UN Friendly Relations Declaration, which states that a non-self-governing territory has “a status separate and distinct from the territory of the State administering it.” The phrase is originated in the General Assembly resolution 1541 (XV) in 1960, referring to “a territory which is geographically separate and is distinct ethnically and/or culturally” from the administering State. This resolution is in turn based on the previous resolution 742 (VIII) in 1953, elaborating the meaning of ‘a status separate’ as “separation by land, sea or other natural obstacles.” While ‘Western Sahara’ is actually separate from its former administering State Spain, it is not separate from the rest of Morocco. Besides, the Polisario is not the only representative of “the people of Western Sahara.” And that, Polisario’s status as the people’s representative is opposable only in the UN-led peace process, from which the Polisario has declared to withdraw in 2020. Based on the universally accepted principles of democracy, moreover, a political will on Morocco’s exploitation of Saharan natural resources should be determined by the majority of different representatives of “the people of Western Sahara,” not undemocratically by substantially granting a veto power to the Polisario, discriminating against other peoples, in violation of a jus cogens norm which absolutely prohibits discrimination. In consequence, contrary to the 2021 EU General Court decision, there is no responsibility for Morocco to obtain Polisario’s consent to the exploitation of Saharan natural resources, under the existing international law.