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Legal analysis of EU-Morocco trade deal leaves Western Sahara in limbo

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Fishermen work in the port of Laayoune, Western Sahara, the world's largest sardine port ABDELHAK SENNA / AFP

The legal opinion by the EU advocate general this week was taken as a victory by both Western Sahara supporters and those who want to preserve the European Union-Morocco agricultural and fishery products trade deal. What is more important, however, are the questions it opens up on EU views of sovereignty and political versus economic agreements.


In the official opinion of the Court of Justice of the European Union, Advocate General Melchior Wathelet stated that Western Sahara is not part of Moroccan territory, and that the EU-Moroccan trade agreement should not apply to it.

EU Court Advocate opinion adds another layer to EU-Morocco trade dispute with Western Sahara 16/09/2016 - by Laura Angela Bagnetto Listen

The EU-Morocco agreement, originally signed in 2012, gives European vessels the right to fish in waters off the coast of Western Sahara and open up agricultural trade, an action that the Polisario Front challenged in the EU Court of Justice. Although the agreement was frozen by the court, Federica Mogherini, the High Representative of the EU for Foreign Affairs, said that the agreement was not a violation and filed an appeal. The ultimate decision is slated for November.

Western Sahara, a disputed territory, has fought for self-determination since 1975. A former colony of Spain, the area was annexed by Morocco. Morocco, by moving people onto the Sahrawi territory, says that it is the de facto ruler of Western Sahara, and therefore claims it as part of its territory. Western Sahara and Morocco fought until 1991, then a UN-mediated ceasefire was supposed to pave the way for a referendum on self-determination, a political action that has remained allusive.

On the one hand, the Advocate General, in a non-binding statement, is agreeing with what the Polisario Front, a political group representing the Sahrawi people according to the UN, has been saying all along Western Sahara is not a part of Morocco.

“We think it’s now time for the EU to not just pay lip service to the Sahrawi people’s right to self-determination, but to also act accordingly and to stop treating Western Sahara as part of Morocco,” says Sara Eyckmans, international coordinator for Western Sahara Resource Watch, an international watchdog research group that monitors companies working for Moroccan interests in Western Sahara.

The other issue, however, is that Advocate General Wathelet also pointed out that the Polisario Front is not the sole representative of the Sahrawi people.

“As a result, the Advocate General had recommended on that basis that the Polisario’s claim to have the trade agreement blocked be thrown out,” says Cailin Birch, Morocco analyst from the Economist Intelligence Unit in London. If the Polisario’s claim that Morocco was committing human rights violations, then the December 2015 tribunal decision blocking the original agreement would also be thrown out. Not only would the treaty, in theory, continue outside of Western Sahara waters, but the Polisario would not be able to challenge any treaties in the future because of its new EU distinction that it is not the sole voice of the Western Sahara people.

“So with the initial freeze now dropped, I think the accord will go back to where it was before and Polisario would find itself without any other legal recourse to block future agreements,” says Birch.

José Bové, a French MEP for the Green Party and the negotiator for the 2012 EU-Morocco trade agreement, points out the Catch-22. “What the Advocate General says now is that they have a political responsibility in front of the UN but they have no responsibility for economic issues. We are in a crazy situation, because the people are recognized politically by the UN but not economically by the European Union.”

The Sahrawi people would effectively have no representation at the EU regarding their own land and water. According to Bové, the only solution would be to bring the Western Sahara people to the table to discuss how they should be represented, but it’s a key point the Moroccans will not accept.

Bové cites the pressure Morocco is putting on the EU not to deal with the Sahrawi people or they will change their policies on the fight against terrorism, claiming they are the only ones who can stop the jihadists.

“This is completely unacceptable. The EU has to be very strong and tell Morocco, ‘The EU is not going to go against international law. We have to respect the rights of the people,’” says Bové.

The only other option at this point, says Birch, is that the Sahrawi Arab Democratic Republic, SADR, which was set up by the Polisario, would take the helm and take action on behalf of the Sahrawi people. But SADR is not recognized universally only by the African Union, as well as some Latin American and Asian countries.

The process to have SADR recognized by the EU would take time which is what Western Sahara does not have, as European boats continue to take fish from their waters without the Sahrawi people receiving revenue.

“In terms of legal recourse, the region will find itself without a lot of options,” says Birch.