EU extraterritorial obligations with respect to trade with occupied territories: Reflections after the case of Front Polisario before EU courts

Abstract

This paper provides a critical analysis of the recent judgments of the General Court of the EU and the Court of Justice of the EU in the case of Front Polisario v Council, which concerned the application of the EU-Morocco Liberalisation Agreement to products from Western Sahara. The central argument is that both EU courts failed to adequately consider the nature of the Moroccan presence on Western Saharan territory: a belligerent occupation. In light of this occupation, the courts should have channelled the EU’s extraterritorial obligations vis-à-vis the population of Western Sahara through the tailor-made regimes of the law of occupation and the international duty of non-recognition. It is argued that the application of the Liberalisation Agreement may notably run afoul of the EU’s duty of non-recognition, but that the Agreement may still apply insofar as it benefits the local population. More fundamentally, after Front Polisario, the EU may want to reconsider all trade relations in respect of occupied territories by distinguishing between legitimate and illegitimate products.