In 2012 the Polisario Front took the courageous step of challenging the European Union free trade agreement with Morocco. It did so through a case in the European Court of Justice (the ECJ, now the CJEU) to demand a setting-aside of a decision of the European Council which had extended operation of the agreement into occupied Western Sahara. The Council, later joined by the European Commission, opposed the case. In a decision last December a first level panel of the Court determined that the “extension decision” was contrary to European and human rights law.
There were two other things in the decision which were notable, namely the decision to allow the Polisario Front to bring the case in the EU’s principal court, and the conclusion that Morocco does not have sovereignty in the territory. Since the decision, free trade in products – mainly agricultural resources – into European countries from Western Sahara is supposed to have been suspended. There have been credible reports of products being imported tariff-free including possibly a shipment of fish oil into France last week, investigated by Western Sahara Resource Watch.
There could be no doubt the European Council and Commission would appeal the decision. What’s at stake is not trade – because there is not much economic value in trade between European countries and Morocco when it comes to products and resources exported from Western Sahara (except for some countries the fishery) - but an important relationship that is secured (in part) by trade. When it comes to Europe’s engagement with Morocco, it has been important to quietly acknowledge Morocco’s presence in Western Sahara. In other words, for the goal of that relationship, EU institutions must play both sides of the street: engaging Morocco in Western Sahara, at the same time declaring support for international law and the role of the United Nations in Western Sahara.
The appeal was heard by the full Court on July 19. (Several European countries, but not the united Kingdom, intervened and expressed concern about the first level panel of the Court having considered ‘diplomatic matters’ and allowing the Polisario Front to bring the original case.) The CJEU has the unique feature of specialist experts – Advocates-General – who offer opinions about law and the merits of an appeal case before a final decision is delivered. Given the complexities of EU law and the need for a supra-national court to consider different perspectives, such a commentary “function” (one not found in the English legal system) is useful. On September 13, the Advocate-General in the appeal (the Belgian law professor, Melchoir Wathelet) issued his opinion. The English language version of the lengthy opinion is worth reading. It can be expected that the conclusions of the opinion will be adopted by the Court. That is because Professor Wathelet had the benefit of hearing arguments and assessing evidence, because he is a former judge of the court, and because his reasoning in most areas of the case is sound. (On this basis, we might expect an appeal decision in late October or November.)
The Advocate-General’s opinion can be thought as taking a “back to the basic approach” to how the EU – and its member countries – deals with Morocco over the “question” of Western Sahara. Two of these “basics” are that Morocco does not have sovereignty or a recognized status to be present in Western Sahara, and that Spain continues to have a primary obligation (or duty) under international law to safeguard resources (and by extension, human rights) in Western Sahara. The result of the first is that no free trade arrangement between the EU and its member countries with Morocco can extend into (operate within) Western Sahara. In turn, the EU-Morocco Fisheries Partnership Agreement can no longer – after an appeal decision – operate in Western Sahara’s waters. (On March 5 this year, the Polisario Front presented a map and geographic coordinates of its claimed maritime area, an exclusive economic zone, to the UN Secretary-General during his visit to the Tindouf refugee camps.)
The Advocate-General, as expected, also offered alternative reasons in his September 13 opinion. In other words, if the CJEU decides to review the 2012 free trade extension and accept that Morocco has some capacity under international law to make agreements that apply in Western Sahara, then there must be an inquiry into the human rights impacts of any such agreements. In a second aspect of the appeal, the Advocate-General concluded that the Polisario Front did not have the legal “standing” or right to bring the case. On this point, the Advocate-General suggests the “better party” to have pursued the case was Spain and that because of the basic operation of international law, there never was a case to bring because a European (EU) free trade agreement could never have extended to Western Sahara. However, the case has been brought and appeal is now pending, and therefore such reasoning is a paradox.
These developments are proof that using the law, in Europe and individual countries alike, can work in the overall pursuit of justice for the Sahara people.
WESTERN SAHARA CAMPAIGN UK
The Western Sahara Campaign works in solidarity with the Saharawi people to generate political support in order to advance their right to self-determination and to promote their human rights.
Our role is to lobby the UK Government and the EU. You can help us to ensure the UK does not ignore the voice of the Saharawi people.
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