“Self-determination at the European Courts: The Front Polisario Case” or “The Unintended Awakening of a Giant”

Table of Contents: I. Introduction. – II. Some factual elements of the Western Sahara dispute. – III. The Association Agreement and the proceeding before the General Court in the Case T-512/12. – IV. The Court of Justice judgment of 21 December 2016. – V. The right to self-determination and the Front Polisario case. – VI. Conclusions. 

Abstract: The judgment delivered by the Court of Justice on 21st December 2016 in Front Polisario (case C-104/16 P, Council of the European Union v. Front Polisario [GC]), has all the ingredients to become a leading case of EU jurisprudence. While formally overturning the judgment by the General Court in case T-512/12 (judgment of 10 December 2015) which annulled the liberalization agreement concluded by EU with Morocco in 2012 as it violated the rights of the people of Western Sahara (occupied by Morocco), in substance the Court’s judgment even goes beyond the judgment of the General Court in defence of self-determination. The jus cogens and erga omnes character of self-determination is reiterated and emphasized by the Court of Justice. This is no small thing in a time when calls for self-determination seem to disrupt long-established states worldwide and also in Europe.

Keywords: self-determination – erga omnes norms – jus cogens – Western Sahara – Association Agreement EU-Morocco – colonialism – Front Polisario.

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European Papers, Vol. 2, 2017, No 3, pp. 907-921
ISSN 2499-8249 - doi: 10.15166/2499-8249/184

* Professor for International Law, European Law and Comparative Public Law, University of Inns-bruck, peter.hilpold@uibk.ac.at.