EU court decision may escalate tension with Morocco

The European Court of Justice (ECJ) ruled Dec. 21 that the association and liberalization agreements between Morocco and the European Union do not apply to the territory of Western Sahara. Morocco has privileged access to the European market, as it exports agricultural and fishery products to the EU, including products from Western Sahara. The ECJ’s judgment is not only about trade, but has far-reaching political consequences.

“The court considers Western Sahara to be a third party rather than a part of Morocco, which means that Western Sahara cannot be included in agreements between Morocco and the EU without the explicit consent of the Sahrawi population,” said a source close to the ECJ. It is the first time that the European court has taken a stance on Morocco’s sovereignty claim over Western Sahara. Mhamed Khaddad, a senior official from the Polisario Front, which is Western Sahara’s national liberation movement, told Al-Monitor that he was “very satisfied by the clarity of the judgment, which highlights the Sahrawis’ right to self-determination.”

Morocco annexed the former Spanish colony of Western Sahara in 1976 despite the International Court of Justice’s opinion that evidence was insufficient to prove Moroccan sovereignty claims over this territory. After 15 years of armed conflict, Morocco and the Polisario Front reached a cease-fire deal in 1991 on the grounds that Morocco would organize a referendum of self-determination in Western Sahara. Rabat has failed to do so ever since. Today, Morocco exploits the territory’s resources, mainly phosphates, agricultural and fishery products.

The majority of Moroccan exports, including products from Western Sahara, go to the EU. The EU and Morocco signed an association agreement in 2000 and further deepened their trade relations with the 2012 liberalization agreement. The same year, the Polisario Front asked the ECJ to cancel the deal because the Sahrawi population was not consulted.

Through this court case, Polisario wanted to have the EU take a stance on Morocco’s annexation of Western Sahara. “Over the years, the EU has been turning a blind eye to Moroccan exports coming from this disputed territory. This has enabled Morocco to finance its occupation of Western Sahara, while giving the kingdom political legitimacy to do so,” Polisario lawyer Gilles Devers told Al-Monitor.

Bodil Valero, a Swedish member of the European Parliament, told Al-Monitor that the issue of Western Sahara “is a very political question among European member states. Whereas countries in the north support Western Sahara, France and Spain block everything. Morocco is also one of the EU’s last partners in the Mediterranean for preventing migration and fighting terrorism.”

In December 2015, the ECJ issued its first ruling in favor of the Polisario and partially canceled the 2012 trade deal. For Morocco, a red line was crossed, and Rabat temporarily froze diplomatic relations with the EU. Morocco considers Western Sahara to be part of the kingdom and has been lobbying international organizations to remove the issue of Western Sahara from the agenda. Siding with Morocco, the Council of the European Union appealed that ECJ decision with the support of the European Commission and five member states.

The ECJ's December 2016 judgment initially seemed confusing since it indicated that Polisario’s demand to cancel the 2012 trade deal had been dismissed. This fueled the argument that the EU Council had won the case. But Erik Hagen, the chair of Western Sahara Resource Watch, told Al-Monitor, "It is hard to understand how this judgment can be interpreted in any way as a victory for the EU or Morocco. If the Polisario’s demand was dismissed, it is because the ECJ concluded that Western Sahara is not part of Morocco and therefore not included in EU-Morocco deals. This is why the Polisario Front is said to be irrelevant to the case." Strangely enough, both the official Moroccan statement and the EU-Moroccan joint statement fail to mention this.

European institutions are now legally bound by the ECJ decision and have to implement the judgment. They have to make sure that products from Western Sahara are no longer exported into the EU under the EU-Morocco trade deal. “There are easy steps that the EU can initially implement,” said Manuel Devers, Polisario's legal counsel for relations with the EU. “The EU has official lists of producers based in Western Sahara who are allowed to export into the EU. Their permit has to be revoked.”

Devers said, “As of today, private companies operating in Western Sahara have no right to do so without the consent of the Sahrawi population. The Polisario Front is inviting these companies to contact them in order to legalize their activities.” The political and financial risk of investing in Western Sahara with only Morocco’s permission has dramatically increased with the ECJ judgment. Polisario will make sure that the judgment is implemented if the EU institutions fail to do so, according to Devers.

“The court’s judgment is also an opportunity for the EU to engage directly with the Sahrawi Arab Democratic Republic,” Devers said. “Until today, they mostly dealt with Western Sahara through Morocco.” Beyond the implementation of the court’s judgment, Polisario also wants to make sure that other EU-Morocco deals stop applying to Western Sahara.

The 2006 fishing agreement between the EU and Morocco allows European vessels to fish in Western Sahara’s waters. Every year, the EU pays over 40 million euros ($42 million) to Morocco to be able to do so. “The Polisario has already filed a complaint at the ECJ because this deal applies to Western Sahara, too, but is ready to negotiate with EU institutions should they be open for direct dialogue,” Devers said.

On the diplomatic front, Morocco will be confronted with making important decisions in the coming weeks. It can choose to break off relations with the EU again. By isolating itself, the kingdom could damage its relations with a powerful ally and its most important export market. Or Rabat can decide to accept the judgment and strengthen economic cooperation between the EU and Morocco proper. In the meantime, Polisario will seek to put Sahrawis’ right to self-determination back on the agenda and now has yet another legal argument to do so.