The Council v. Front Polisario Case: The Court of Justice’s Selective Reliance on International Rules on Treaty Interpretation (Second Part)

Printer-friendly version

Table of Contents: I. Introduction. – II. The Front Polisario judgment. – III. The Court’s reliance on international rules on treaty interpretation. – III.1. General observations on the Court’s method of treaty interpretation: the Court and the “crucible” approach to treaty interpretation. – III.2. The Court’s reliance on the right to self-determination of peoples of non-self-governing territories. – III.3. The Court’s reliance on Art. 29 VCLT. – III.4. The Court’s reliance on the pacta tertiis principle. – III.5. The Court’s approach to the “subsequent practice of the parties”: circumventing the question of the de facto application of the agreement to Western Sahara. – IV. Conclusion.

Abstract: In the context of the debate on the relationship between EU and international law, it has been observed in the literature that the Court’s approach to international law seems to have shifted over time. It has been argued that, although in its earlier case-law the Court seemed to have adopted a friendly and open attitude towards international law, more recent case-law evidences a more reserved, inward-looking attitude and a tendency to eschew engagement therewith. In this context, the Court’s judgment in Front Polisario is highly relevant since the Court relied heavily on international rules on treaty interpretation and, thus, the judgment provides important insights into how the Court treats international law in its practice. This Article discusses the findings of the Court and argues that the Court’s reliance on international law was artificial and selective. The Article concludes by arguing that, ultimately, the Front Polisario judgment lends evidentiary force to critical voices in the literature that have casted doubt on the image of the EU, as evidenced by the jurisprudence of its principal judicial organ, as an actor maintaining a distinctive commitment to international law.

Keywords: relationship between international and EU law – treaty interpretation – territorial scope of treaties – pacta tertiis principle – non-self-governing territory – right to self-determination.

European Papers, Vol. 2, 2017, No 1, pp. 23-42
2499-8249 - doi: 10.15166/2499-8249/147

* Ph.D., The Hague University of Applied Sciences,



European Forum


Forum Européen


Forum europeo


Foro Europeo