Ignoring the law, repelling refugees
Highest EU court declares agreements with Morocco unlawful and urges recognition of Western Sahara. Berlin and Brussels won’t comply: it’s about migrant push-back.
LAAYOUNE/RABAT/BRUSSELS (own report) - Several agreements made with Morocco by the EU are in breach of international law, not least because they amount to support for Rabat’s rule over Western Sahara, known as the last colony on the African continent. At the beginning of October, the European Court of Justice (ECJ), the EU's highest court, confirmed the breach in a judgement that declares the EU’s trade and fisheries agreements with Morocco unlawful. The problem is that agreements have been concluded with Morocco but also concern Western Sahara, a territory illegally occupied by Morocco, as the ECJ reiterates. The court establishes that the EU must conclude any agreements relating to Western Sahara with the legitimate representative body of the Sahrawi population, which is the Frente Polisario. The ECJ judgement follows rulings by the United Nations, which currently ascribes colonial status to Western Sahara. Brussels and Berlin simply say they have “taken note” of the legal position, while not taking any steps to comply with it. European Commission President Ursula von der Leyen doubles down, announcing the EU’s desire to take the “profound friendship” with Morocco “to the next level”. So policymakers prioritise initiatives to block the flow of refugees and exploit renewable energy sources above compliance.
Fishing and trade
The contentious agreements with Morocco centre on fishing and agricultural goods. These are issues of great importance to Western Sahara. The waters off the territory’s coast are extremely rich in fish. The former colonial power, Spain, had systematically engaged in the exploitation of local fish stocks back in the 1960s. In 1975, Spain obtained a promise from Morocco, as its colonial successor, to allow Madrid to continue its fishing practices off the coast of Western Sahara. After Spain’s accession to the European Union in 1986, the EU moved in. Brussels was able to conclude its first fisheries agreement with Rabat in 1988 – a deal that has ensured continued plundering of Western Sahara’s fish stocks by fishing fleets from Europe. The EU imported fish and fish products worth around 604 million euros from those waters in 2021, falling to around 504 million euros in 2022. As for agriculture, approximately 87,000 tonnes of agricultural goods – mainly tomatoes and melons – were harvested in Western Sahara in 2022. Of this, 74,000 tonnes with a value of 85.6 million euros went to the EU. This amounts to some 85 per cent of all agricultural goods from occupied Western Sahara.[1]
The ECJ ruling
The EU has found itself in a conflict with international law because of its fishing operations off the coast of Western Sahara and its importation of agricultural products. They should be properly regulated through an agreement with the legal representation of the local population. Instead, the EU deals only with Morocco, an occupying state that acts as a colonial power. Rabat applies, without further ado, the trade and fisheries deals concluded with Brussels to activities in Western Sahara. The EU is, in turn, just as ready to approve the arrangement. The General Court of the European Union (European General Court, EGC) and the European Court of Justice (ECJ) have declared these arrangements to be unlawful in a total of seven judgements since 2015.[2] For its part, the EU executive has repeatedly attempted to circumvent the legislative by making cosmetic changes to the wording of the relevant agreements as well as lodging appeals against the judgements. In its ruling of 4 October, the ECJ reiterated that the agreements remain unlawful and set the EU a deadline of one year to bring them into line with international law.[3] The essential finding is that Morocco has no legal sovereignty over Western Sahara and the legitimate representative of the territory’s population is the Frente Polisario. It is with the Polisario that the EU should be regulating fishing and trade with Western Sahara, not with Rabat.
“We’ve taken note”
To date, the responses of the European Commission and the German government speak for themselves. These bodies take every conceivable opportunity to pat themselves on the back as beacons of international law, claiming a special role as enforcers worldwide. Yet neither has said that it will immediately take steps to comply with the ruling of the EU’s highest court. European Commission President Ursula von der Leyen and EU Council President Charles Michel are saying they “take note” of the judgement. But more importantly for them, “the EU reiterates the high value it places on its strategic partnership with Morocco”.[4] They want to take the “profound friendship” with Rabat “to the next level in the coming weeks and months”. In Berlin, the Federal Foreign Office takes the same line: “We take note of the judgement,” but “place great importance on the ‘strategic, multidimensional and privileged partnership’ between the EU and Morocco.”[5] It adds that, “Bilaterally, we intensified our relations with Morocco this June with the latest of the regular Strategic Dialogues chaired by the respective Foreign Ministers.” Neither von der Leyen in Brussels nor Foreign Minister Annalena Baerbock in Berlin hold out any prospect of measures towards helping Western Sahara, Africa's last colony, to assert its rights of self-determination vis-à-vis Morocco.
Against the United Nations
In this way, Berlin and Brussels are openly standing in opposition not only to the EU’s supreme court but also to the United Nations, which continues to place Western Sahara on its list of non-self-governing territories. The list was created in 1946 and originally included a large number of former European colonies, most of which have since become independent states. There are seventeen remaining colonial territories on the list,[6] of which Western Sahara, with over 600,000 inhabitants, has the largest population. The NGO Western Sahara Resource Watch (WSRW) has pointed out that the Saharawi people's right to self-determination is now recognised in more than a hundred UN resolutions. It was also confirmed back in 1975 in an opinion by the International Court of Justice (ICJ) in The Hague.[7] In line with the ECJ ruling, WSRW calls for Brussels to “immediately engage in exploratory talks with the Polisario Front for the development of legally compliant bilateral ties with the territory ”. The EU should also insert a “territorial clause” in all agreements with Morocco, “explicitly excluding Western Sahara”. Moreover, WSRW calls on all private companies involved in Morocco’s plundering of resources in the territory to respect the international rule of law and cease their operations immediately.[8]
Against the ECJ
There is nothing at present to suggest that Berlin and the EU are prepared to comply with the ECJ's judgement. Morocco has for several decades been considered one of the EU's most important henchmen in efforts to stem the flow of refugees and migrants into Europe, as german-foreign-policy.com has variously reported.[9] During a visit to Morocco on Tuesday, French President Emmanuel Macron told the Moroccan parliament that Paris was seeking to expand relations with Rabat, especially with respect to preventing unwanted immigration.[10] Macron also spoke of closer cooperation in the field of economics, such as the exploitation of renewable energy in Morocco for use in the EU, including the production and export of green hydrogen. In return, Macron reiterated his view, announced at the end of July, that ‘the present and the future’ of Western Sahara should be seen “within the framework of Moroccan sovereignty”.[11] And Spain’s Prime Minister Pedro Sánchez adopted a similar stance in 2022.[12] Observers are already speculating that the EU could, in the near future, align with this position. However, it would mean a definitive break with the jurisdiction of its own supreme court.
[1] 2023 Report on the impact and benefits for the population of Western Sahara of the extension of tariff preferences to products originating in Western Sahara. SWD(2024) 57 final. Brussels, 15.03.2024.
[2], [3] Urteil des EU-Gerichtshofs: Besetzte Westsahara nicht Teil der EU-Marokko-Abkommen. wsrw.org 04.10.2024.
[4] Joint Statement by President von der Leyen and High Representative/Vice-President Borrell on the European Court of Justice judgements relating to Morocco. ec.europa.eu 04.10.2024.
[5] Auswärtiges Amt zum Urteil des EuGH bezüglich der Handelsabkommen der EU mit Marokko. auswaertiges-amt.de 07.10.2024.
[6] See also: Colonies in the 21st century (I), Colonies in the 21st century (III) and Kolonien im 21. Jahrhundert (IV).
[7] Die Besatzung der Westsahara. wsrw.org. See also: Colonies in the 21st century (II).
[8] Urteil des EU-Gerichtshofs: Besetzte Westsahara nicht Teil der EU-Marokko-Abkommen. wsrw.org 04.10.2024.
[9] See also: Flüchtlingsabwehr und grüner Wasserstoff and Berlin and human rights (II).
[10] Au Maroc, Emmanuel Macron appelle à plus de “résultats” contre l‘immigration illégale et réaffirme son soutien à la “souveraineté marocaine” au Sahara occidental. lemonde.fr 29.10.2024.
[11] Frédéric Bobin: A Rabat, Emmanuel Macron propose un “nouveau cadre stratégique” avec le Maroc. lemonde.fr 29.10.2024.
[12] Francisco Peregil, Miguel González: España toma Partido por Marruecos en el conflicto del Sáhara. elpais.com 18.03.2022. J.A.R.: Sánchez ratifica su apoyo a la propuesta marroquí sobre el Sáhara y Podemos le acusa de seguir la estela de Trump. elpais.com 08.06.2022.
