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.