International Law

International Law

Introduction

International law entails a legal system established with the objective of enhancing organisation and to structure societies and international relationships. International law originates from different sources similar to rules in other legal systems. International law is comprised of different categories of law, viz. constitutional laws, criminal laws, and property laws[1].  One of the sources of international laws relates to formulation of treaties, which entail express consent between states that is aimed at regulating interests between states in accordance with international law.  Treaties have become common in governing relationship between different states. Subsequently, treaties have over the past few decades become a fundamental source of international law.  Efforts by the United Nations and the International Law Commission to foster international relationships have led to development of different types of treaties.

Formulation of treaties has led to establishment of different multinational relationships and international cooperation. An example of such cooperation entail establishment of the European Union[2]. The significance of treaties arises from the fact that they culminate in establishment of universal standards that govern relationship between states. Breach of treaties results in specified consequences. However, interpretation of international law depends on its source. Thus, interpretation of international law is characterised by a significant degree of flexibility.

This paper examines different issues associated with international law and its sources. The analysis is based on evaluation of the sources and actors of international law with reference to applicability of treaties and international organisations decision to disputed territories. The analysis is undertaken in relation to the case of Western Sahara. The analysis examines the legal status of Western Sahara with reference to; Western Sahara recognition as a state by other states and as a member of the African Union,  the state’s listing as a non-self governing territory with the right to self-determination by the United Nations Decolonisation Committee, the legal status of national liberation movement such as Frente Polisario, and compatibility of acts of organisations and other international agreements that may be incompatible with the right to self determination.

Case analysis

Legal status of Western Sahara

Geologically, Western Sahara is separated from Morocco by a 2,700 kilometre sand berm and is under the control of Front Polisario. Despite the fact that Morocco is the de facto power of Western Sahara, Western Sahara is characterised by a non-self governing territory status. The territory acquired this status from the United Nations. As a non-self governing territory, Western Sahara is yet to achieve full self-governance. Article 73 of the United Nations Charter stipulates that the administering powers, which include states that have administrative capacity over non-self governing territories, shall ensure that the interests of inhabitants in the non-self governing territories are duly recognised. Moreover, the administering power must ensure that the wellbeing of the inhabitants are promoted.  

Irrespective of this aspect Western Sahara is not a primary part of Morocco. This means that Western Sahara’s status is distinct from that of the occupying power or administering state.  As a non-self governing territory, the people of Western Sahara have a right to freely express their opinion regarding their territories’ future, for example becoming an independent state. This aspect explains why Western Sahara is a member of the African Union. Western Sahara’s membership in the African Union is governed by the General Assembly Resolution 1541 (XV), which underlines territories free association with independent state, and integration with independent state or states[3].

In summary, the non-self governing status indicates that Western Sahara relationship with Morocco is governed under international law. Western Sahara is one of the few non-self governing states is yet to achieve self-governance.  On the basis of this relationship, Western Sahara’s relationship with other states such as EU member states is further governed by international relationship.  Western Sahara’s non-self governing status can only cease to exist if its inhabitants decide to exercise their self-determination right.

Right to self-determination

As a non-self governing territory, Western Sahara has the right to apply the principle of self-determination.  The right to self-determination largely focuses on the rights held by individuals as opposed to government rights[4]. This aspect is underlined under Article 73 of the United Nation Charter, which stipulates that administering powers or de facto administers like Morocco in the case of Western Sahara have an obligation to safeguard the interests of inhabitants in the  non self-governing territories.

According to the case, the European Union General Court (EGC) nullified a free trade agreement between Morocco and the European Union, which would have enhanced trade between Morocco and the EU.  The free trade agreement implied that Morocco would undertake fishing activities in Western Sahara’s territorial waters.  Therefore, the trade agreement would have culminated in violation of Western Sahara’s right to self-determination[5].

 Under international law, the principle of self-determination argues that people have the right to enjoy a certain degree of freedom from its sovereign[6].  The principle of self-determination is anchored in international conventions and treaties, which have been transformed into a set of customary international laws. Customary international laws refer to actions, declarations and claims of a particular state[7].  Thus, customary international law constitutes one of the major sources of international law. The customary international laws originated from the Vienna Convention on the Law of Treaties 1969.  Goldsmith and Posner assert that customary international laws bind all member states that are party to its development[8]. Application of customary international law as a source of international law is underlined in the case of North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; FRG v Netherlands). In this case, FRG and the Netherlands and FRG and Denmark sought legal redress over a claim on delimitation of shared continental shelf from the International Court of Justice. The court’s task was to make a determination on the laws applicable with reference to the dispute between the respective states. The ICJ ruled that determination over delimitation with reference to continental shelf was to be based over customary international law[9]. The court’s rationale was based on the fact that there was no relevant treaty that would have been applied at the time in making the ruling[10].

By entering into a free trade agreement with Morocco, the European Union was in violation of customary international law that prohibits member states from entering into trade agreement with disputed territories. Additionally, nullification of the free trade agreement between the EU and Morocco is based on the law of treaties stimulated under the Vienna Convention. As a result of codification of customary international law, the Vienna Convention can be expanded to deal with legal issues involving countries that are not treaty to the Vienna Convention[11].  This aspect indicates the extent to which international law is evolving.

Irrespective of the fact that Morocco is the de facto administering power over Western Sahara, the self-determination principle means that Western Sahara has the right to make and intervene in decisions likely to affect its peoples’ lives. In applying the principle of self-determination, Frente Polisario argued that implementation of the trade agreement would have led incurrence of substantial loss of resources by Western Sahara, despite it being protected under the principle of self-determination as a non self-governing state. However, as the de facto administrator of Western Sahara, Morocco capacity to exploit the territory’s natural resources is only possible if it enters into consent with Frente Polisario, which is the legitimate representative of Western Saharan inhabitants. Nevertheless, Morocco had entered into free trade agreement to exploit the territories natural resources without Frente Polisario consent[12].  This aspect indicates that the principle of self-determination is not limited to people’s rights but also encompasses protection of natural resources. Therefore, enactment of trade agreement between Morocco and the EU would have led to economic colonisation.

 In summary, analysis of the concept of self-determination indicates that international law plays a fundamental role in promoting and protecting rights of inhabitants within non-self governing territories. The principle limits the capacity to the defacto or administering powers from enacting decisions or entering into multilateral trade agreements that might adversely impact the wellbeing of the inhabitants.

Legal status of national liberation movements

In line with the United Nations decolonisation policy, formulated the term national liberation movement, which entails an organisation established with the purpose of leading a struggle for independence of a particular community under domination or colonialism. The concept of national liberation movement is based on the basis of the right of self-determination of the people involved. The legal status of national liberation movements has been controversial. Some national liberation movements have been regarded as belligerent while others have been accorded international legal personality. On the basis of their legal personality status, some national liberation movements have been granted certain rights by the General Assembly such as participation in international conferences[13].  For example, in 1997, the General Assembly Fourth Committee allowed some national liberation movements from Portugal African territories to be involved in its operations within the territories. In doing so, the General Assembly accorded the NLMs the role of observers[14]. Front Polisario is an example of a national liberation movement due to the fact that it was established with the objective of liberating Sahrawi people and bringing to an end foreign occupation of Western Sahara.

One of the notable issues of international law evidence in Fronto Palisario quest to challenge the European Union Council Decision 2012/497/EU relates to the recognition legal persons. In order to institute legal proceedings, the European Union has set a threshold which stipulates that legal proceedings over a particular issue must be instituted by a person[15]. However, in this case, the European Union General Court recognised Front Polisario as a legal person. This recognition was based under Article 263 of the Treaty on Functioning of the European Union (TFEU). Under the Moroccan law, it is impossible for Front Palisario to be recognised as a legal person. However, under the international law, Front Polisario legal personality was duly recognised. Its recognition as a legal personality and as a national liberation movement is evidenced by its involvement in the United Nations led negotiations in formulation of a peace agreement with Mauritania[16]. In recognising the  organisation’s legal personality, the European Union argued that Front Palisorio exists as an independent organisation that is characterised by well established structures and statues and hence its capability of entering into legal relationships. The court recognised Front Palisario’s effort to liberate Western Sahara through an effective dispute resolution mechanism.

In summary, the court decision to consider Front Polisario as a legal personality indicates that national liberation movements are characterised by a considerable legal status that provides them the capacity to enter into legal relationship in the quest to achieve their goal. However, the extent to which national liberation movements are accorded legal personality is limited to certain aspects such as to be observers.

Compatibility of acts of organisation and other international agreements incompatible with the right to self-determination

As the de facto power or occupier of Western Sahara, Morocco’s capacity of resources in Western Sahara are only limited if Morocco exploits the natural resources in the disputed territory for the benefit of the Western Sahara community[17]. This finding is supported by the United Nations Legal Council, which found that if the administering power exploits resources in a non-self governing territory for the inhabitant’s benefits, such an action would be compatible with the United Nation’s Charter on obligations of the occupying or administering state. Similarly, the principle of self-determination is compatible with the United Nations General Assembly resolution, which underlines that non-self governing states must be accorded the right to enjoy permanent sovereignty over t their natural resources irrespective of the non-self governing legal status.  In addition to the above aspect, the case of West Sahara’s  as a non-self governing state is compatible with Article 55 of the Hague Regulations, which emphasises on the importance of enhancing self-determination for non-self governing territories. According to the Hague Resolution, proceeds from immovable property belonging to non-self governing territories should specifically be used for the wellbeing of the inhabitants.

  Therefore, by entering into a free trade agreement with the EU, Morocco was in contravention and incompatible with the self-determination principle. This arises from the fact that exploiting natural resources in Western Sahara in order to trade with the EU would deprive Western Sahara’s inhabitants of their right to benefit from the natural resources. This aspect arises from the fact that Morocco does not entirely consider Western Sahara as its de facto state but a part of its Morocco’s territory.   In making a ruling over the trade agreement between the EU and Morocco, the European Union General Court (EGC) acted in compatibility with the principle of self-determination, which gave Front Polisario legal status and ability to ensure that Western Sahara’s natural resources were adequately protected.

In summary, the analysis shows that the ruling by the European Union General Court (EGC) was significantly compatible with regulations stipulated by other entities such as he United Nations Legal Council and the United Nations General Assembly. The compatibility with other acts and regulations indicate the fact that international law is very extensive and its development is not limited a single source but develops progressively.

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