L’autodeterminazione dei popoli tra jus cogens ed efficacia dei trattati in un recente accordo dell’Unione europea

On 21 December 2016 the Court of Justice of the European Union rendered its appeals decision in the case C-104/16 P, Council v. Front Polisario, overturning the decision by the EU General Court in T-512/12, Front Polisario v. Council of 10 December 2015. With its judgment the EU General Court had annulled the Council Decision 2012/497/EU on the conclusion of the Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalization measures on agricultural products, processed agricultural products, fish and fishery products, in so far as it had approved the application of the Agreement to Western Sahara, a «disputed territory» partially controlled by the Front Polisario, a national liberation movement involved in a long armed conflict with the Kingdom of Morocco. The ECJ stated that the Agreement did not apply to Western Sahara and therefore Front Polisario is not concerned by the decision of the Council and so it lacked standing in the European Courts. This paper aims to analyze the issues, mutually linked, involved in the Front Polisario case, with a special attention for the relationship between the principle of self-determination of peoples and the rules on the validity of the treaties, not forgetting the necessity to protect the fundamental rights of the Western Sahara population.