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EU deeply divided over Western Sahara policy

A European Court of Justice decision excluding Western Saharan exports from receiving preferential tariffs granted to Morocco has highlighted the need for the European Union to address the issue of who represents the people of Western Sahara.
A woman holds a placard with both the Morocco and EU flags during a rally by Moroccans and supporters of Morocco at the EU-Morocco summit in Granada March 7, 2010.  REUTERS/Pepe Marin  (SPAIN - Tags: POLITICS) - RTR2BCFI

Members of the European Parliament met with representatives of the European Union’s diplomatic and executive branches on March 20 to discuss the future of relations with Morocco. The EU-Moroccan relationship reached a historic low last December, when the European Court of Justice (ECJ) ruled that the association and free-trade agreements between the EU and Morocco do not apply to the disputed territory of Western Sahara.

In practical terms, the ruling by the EU’s highest court means that products from Western Sahara cannot benefit from the same preferential tariff quotas as products from Morocco. The commercial repercussions of the ruling may appear limited at first, but its political implications have turned the relationship between Rabat and Brussels sour.

Morocco regards any challenge to its sovereignty over what it calls its “southern provinces” as an attack on its territorial integrity. Although the International Court of Justice and the United Nations have advocated the right to self-determination for the Sahrawi people, Rabat has maintained control over this former Spanish colony and its natural resources since 1976.

Morocco exports primarily agricultural and fishery products from Western Sahara to the EU. By mid-2016, the EU was the destination of 85% of Morocco’s fruit and vegetable exports. While the EU remains a crucial market for Morocco, Brussels considers Rabat to be an important partner on key issues, including security, migration and counterterrorism.

Despite EU efforts to maintain good relations with Morocco, the partnership has suffered since the ECJ’s ruling on the trade agreement. In February, Morocco’s Ministry of Agriculture and Fisheries announced, “Any obstacle in the application of this agreement … risks the resumption of migratory flows, which Morocco has succeeded in containing through a deliberate, sustained effort.”

At the same time, initially promising negotiations on an EU-Morocco Deep and Comprehensive Free Trade Area have stalled, while a number of economic actors in Western Sahara are suffering from the legal uncertainty created by the ECJ judgment. They need Brussels to take a stance on how to implement the court’s ruling.

Since the ECJ has ruled that EU trade agreements can only apply to Western Sahara if the legitimate representatives of its people agree to it, the main issue appears to concern how to obtain the consent of the Sahrawi people. If the Polisario Front, representing the Western Saharan independence movement, were to take the EU-Moroccan free trade agreement to the ECJ in the first place, it would be because it also wants to put its issue back on the agenda.

“Until now, it is the Polisario Front that is recognized by the UN as the sole representative of the Sahrawi people, while Morocco is not,” Bodil Valero, a Swedish member of the European Parliament, told Al-Monitor. Djamal Zakari, Polisario Front representative in Belgium and Luxembourg, assured Al-Monitor, “[We have] invited the EU to contact [the] Polisario Front in order to find a viable solution and address the status of European companies in Western Sahara.”

The Polisario Front has not yet received an official response from the European Commission, while Morocco continues to export products from Western Sahara into the EU as it did before the ECJ ruling. In January, French customs in the port of Fecamp agreed to unload fish oil arriving from Western Sahara without implementing the court's judgment. Sources from the French Ministry of Foreign Affairs told Al-Monitor, “The ECJ ruling does not challenge the legality of such imports.” The EU Commission finally challenged that view, however, during a March 20 meeting, underlining that products from Western Sahara should not be imported illegally under preferential tariffs.

Another critical challenge is identifying products transported from Western Sahara by plane or truck that are mixed with products from Morocco. Florent Marcellesi, a Greens Spanish member of the European Parliament, told Al-Monitor, “If the EU Commission is unable to distinguish where products come from, it should ban all imports from that particular sector.”

Sources from Confederation Paysanne, the French agricultural union, explained to Al-Monitor that they regard Moroccan exports of products from Western Sahara as unfair competition, further harming Europe’s already struggling agricultural sector. Klaus Buchner, a German member of the European Parliament, told Al-Monitor, “Companies making profits in Western Sahara should be exposed.”

In practice, however, quite the opposite has happened since the ECJ’s ruling. The EU's 2017 list of approved exporters from Morocco still includes entities based in Western Sahara. At the same time, an internal EU study obtained by Al-Monitor suggests that avenues for obtaining the consent of the Sahrawi people could be explored in cooperation with Morocco, for instance, through the Royal Advisory Council for Saharan Affairs, an advisory committee to the Moroccan government on Western Sahara.

According to Polisario lawyer Gilles Devers, however, “EU law provides no legal basis for the council to authorize the European Commission to negotiate the inclusion of Western Sahara in the EU-Morocco association with the Kingdom of Morocco. No decentralized or regional Moroccan authority is qualified to express the consent of the Sahrawi people.”

The trade debate really underlines the EU’s internal division over the issue of Western Sahara. The European Commission, a number of members of parliament, as well as some member states, including France, clearly prioritize Brussels’ partnership with Morocco. Other European countries, including the Nordic member states and a growing group of members of parliament, insist on taking the Polisario Front into consideration.

While the EU struggles with the implementation of its own judicial decisions, new legal challenges lie ahead in two more cases pending at the ECJ regarding the EU-Morocco Fisheries Partnership Agreement (FPA). The agreement secures EU fishing rights in Moroccan and Western Saharan waters in exchange for Morocco annually receiving 40 million euros ($43.2 million), nearly half of which has to be spent on developing Morocco’s fishing sector. The EU approves the funding of specific projects, including projects in Western Sahara. This means that Brussels is directly assisting the Moroccan government in developing infrastructure in a territory that according to the ECJ lies outside of Morocco’s internationally recognized borders.

The ECJ’s rulings on the FPA are expected by the end of the year. The current FPA’s implementation protocol expires this year, however, and negotiations for its renewal are expected to start soon. This will make further conflict inevitable within the EU and between Brussels and Morocco.

In the meantime, exporting agricultural products into the EU is becoming financially less attractive for economic entities operating in Western Sahara. International companies might also be deterred by the increasing legal risk of investing in the disputed territory. With the ongoing conflicts around EU-Moroccan deals, Rabat is likely to be confronted with the declining economic profitability of its annexation policy.

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