From trade to international law: Why the EU should untangle its relationships with Morocco and Western Sahara

Europe has a legitimate interest in maintaining close relations with Morocco. But this should not come at the expense of its commitment to international law and Sahrawi rights

The Sahrawi refugees – a forgotten crisis in the Algerian desertEU Civil Protection and Humanitarian Aid CC BY-SA

President Donald Trump’s proclamation recognising Moroccan sovereignty over Western Sahara has put the often-ignored conflict there back in the international limelight. The move runs counter to international law, but was greeted with predictable enthusiasm by Morocco, which has long claimed the territory as its own. Equally predictable has been the mild pushback from European capitals. Yet while they have generally reaffirmed their commitment to long-standing international positions on resolving the conflict through a UN-supervised peace process, they have once again shied away from clarifying their own positions on the territory, its legal status, and Morocco’s claims to it.

This ambiguity stems from contradictory impulses. On the one hand, European governments and the European Union are bound by their duty in international law not to recognise Moroccan sovereignty over Western Sahara and to uphold the right to self-determination of the Sahrawi people. On the other, close alignment with Rabat has seen them favour the territory’s inclusion in their bilateral trading relations. The result is a fundamentally compromised relationship with Western Sahara that is undermining Europe’s trade interests, subverting its political and legal positions, and damaging the long-term prospects for resolving the conflict.

European policy on Western Sahara has been motivated as much by Morocco’s political demands as by the EU’s desire to maintain a good relationship with the country on trade, counter-terrorism cooperation, and migration. In the past, Morocco has not been shy in leveraging such interests to secure political support for its territorial claims. The situation has been made more complex by differing legal views among not just member states but also the EU’s institutions, with the European Commission, the European Council, and the European Court of Justice (CJEU) all taking different positions on the applicability to the territory of international humanitarian law (which regulates military occupations).

Since December 1966, the UN has recognised the inalienable right to self-determination of the people of what was then Spanish Sahara. In October 1975, the International Court of Justice (ICJ) rejected the notion of any “tie of territorial sovereignty” between Western Sahara and Morocco. On the same day as the ICJ’s ruling, Morocco announced its intention to “peacefully occupy” the coastal territory. Since then, the country has formally incorporated it under Moroccan domestic law as part of its administrative regions. However, in 1979, the UN General Assembly declared Western Sahara to be a non-decolonised territory occupied by Morocco, placing clear responsibilities and limits on Moroccan actions as an occupying power under international humanitarian law. Just as importantly, it recognised the Polisario Front as the legitimate representative of the people of Western Sahara (the Sahrawis).

Yet while the EU does not recognise Moroccan sovereignty over the area, it has not adopted the UN’s characterisation of it as an occupied territory. Instead, the EU has labelled Western Sahara as a “non-self-governing territory ‘de facto’ administered by the Kingdom of Morocco” – conjuring up a legal concept that does not exist in international law. And while the EU, along with many of its members, has repeatedly reaffirmed the right to self-determination of Sahrawis, it has refrained from engaging with the Polisario Front in its capacity as the legal representative of the people of Western Sahara. Europeans governments have also refused to recognise the Sahrawi Arab Democratic Republic (SADR), which the Polisario Front established as a state in 1976.

Against the backdrop of a neglected peace process, European positions on Western Sahara have reverberated through the EU’s trading relations. By treating Morocco as the de facto administrative power in Western Sahara (unencumbered by the legal limitations that would otherwise have been placed on it as an occupying power), the EU incorrectly – according to the CJEU – allowed Morocco to include the territory in its bilateral agreements. This has enabled Moroccan and European businesses to profit from Western Sahara’s abundant natural resources – including rich fishery stocks, phosphates, and green energy – to the detriment of Sahrawis.

The Polisario Front has repeatedly challenged these practices before the CJEU, arguing that the EU was wrong to recognise Morocco’s administrative regime in Western Sahara and not seek the consent of Sahrawis for the inclusion of their territory in EU-Morocco agricultural and fishery deals. As a result, EU courts have systematically struck down the arguments put forward by the European Commission and European Council (which are jointly responsible for the EU’s trade relations) to justify the inclusion of Western Sahara in such deals.

Legal rulings are gradually hardening the EU’s policy of differentiation between Morocco and Western Sahara.

In December 2016, the CJEU ruled that Western Sahara fell outside of the scope of Morocco’s Association Agreement, which forms the basis of its trade relationship with the EU. A previous ruling had admonished the Commission for not having secured the consent of the Sahrawi people. Searching for a new legal basis, the Commission now claims to have obtained the consent of the local population to include Western Sahara within an amended trade deal with Morocco. It has done so not by seeking approval from the Polisario Front as the internationally recognised representative of the Sahrawis – as it should – but rather by gaining the approval of local bodies linked to Morocco. In the process, the Commission may have misled the European Parliament, which signed off on the terms of the amended trade agreement in January 2019. The Commission’s effort to circumvent the 2016 ruling is likely to be rejected by the CJEU, once again removing any basis for EU trade with Western Sahara.

These legal rulings are gradually hardening the EU’s policy of differentiation between Morocco and Western Sahara. The anticipated result will be the territory’s exclusion from bilateral agreements with Morocco, mirroring the development of European trade practices in relation to comparable situations such as the Israeli-occupied Palestinian territory and the Syrian Golan Heights, and Russian-occupied Crimea. In this case, EU fishermen will not be allowed to operate within Western Sahara’s waters using Moroccan permits, while Moroccan agricultural products originating in the territory will be excluded from preferential EU tariffs. To legally access Western Sahara’s resources, the EU would, therefore, seem to have few options but to negotiate stand-alone agreements with the Polisario Front or the SADR – something that it has shown no enthusiasm for, given the diplomatic crisis this would spark in Rabat.

Europe has a legitimate interest in maintaining close relations with Morocco. But this should not come at the expense of its commitment to international law and Sahrawi rights – not least because this could undermine European policy on similar situations of foreign occupation and annexation. Nor is it enough for Europe to mildly oppose the Trump administration’s decision.

The EU and its member states should see adherence to international law, including recognition of Morocco as an occupying power subject to international humanitarian law, as a source of strength. This could provide Europeans with both the impetus and the influence to help revive peace talks between Morocco and the Polisario Front, while ensuring that European trade practices do not further undermine the prospects for Sahrawi self-determination. An approach based on international law could also provide a useful entry point for European engagement with the incoming Biden administration, to readjust the United States’ position on Western Sahara and relaunch a viable UN peace process.

The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of its individual authors.

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