Last week, the European Court of Justice has ruled the exclusion of Western Sahara Territory from EU-Morocco Trade Deals especially concerning the labeling of the products from Western Sahara. Although this ruling is the previous verdicts and approaches of the court, it raised debate due to a change of political atmosphere since the court’s last verdict in 2019.
Legal Background of the Western Sahara Dispute
Following the solution of the Agadir Crisis between France and Germany, France has put an end to the thousand-year sovereignty of Morocco and established a colonial rule. In 1912, France and Spain concluded a bilateral agreement and France transferred some sort of Moroccan territory under Spanish administration. Spain administrated Cape Juby (Southern Districts of Morocco neighboring Western Sahara) as a single entity with Spanish Sahara, which be considered a significant fact for legal claims during the decolonization era.
In 1956, France has granted full independence to Kingdom of Morocco which put an end to the French colonial rule in the region while leaving territories of Spanish Morocco and Spanish Sahara under rule of Spain. Following the Moroccan independence, Morocco and local population have waged war against Spanish Sahara, which resulted in the Morocco’s recapture of Cape Juby. In 1976, Madrid Accords were concluded between Spain, Morocco and Mauritania for the partition of decolonization of Western Sahara and full Spanish withdrawal from the region while recognizing the authority of the representative body of Western Saharan People Djemaa. The International Court of Justice assessed that none of those parties is entitled to decide on the fate of Western Sahara since the territory possesses the criteria of statehood per se.
Although the ICJ claims that a decolonization could not take place in such; some argue that the decolonization of British Cyprus took place with London-Zurich Agreements between Turkey, Greece and the United Kingdom as well as the community leaders of Cyprus.
As of today, Morocco controls most of Western Sahara’s mainly coastal territories and the Polisario Front runs partially recognized Sahrawi Arab Democratic Republic that holds the inner deserts. Since United has listed Western Sahara as a non-colonized territory and recognizes Polisario Front as the legitimate representative of Western Saharan people, Morocco’s administration of Western Sahara remains disputable with regard to international law.
The International Community’s Approach on Western Sahara
Currently 46 UN member states have recognized the Sahrawi Arab Democratic Republic as a sovereign state, most of which are mostly African and Latin American countries. Besides of 46 states, 39 of UN member states which previously granted recognition, have withdrawn or frozen the recognition over time.
EU member states have different attitudes towards Western Sahara. Countries like France, Spain, the Netherlands and Poland support Morocco’s stance on granting autonomy to Western Sahara without formally recognizing the annexation while Germany and Belgium recognize that right of self-determination of the Western Saharan people without recognizing the Sahrawi Arab Democratic Republic. Although both approaches do not mean legal recognition, countries that support Morocco’s autonomy proposal de facto approve Morocco’s sovereignty over the region.
On the other hand, the United States in 2020 and Israel in 2023 have formally recognized Morocco’s full sovereignty over Western Sahara. These recognitions were an indication to a shift of the international community’s stance in favor of Morocco.
Relations between the European Union and Morocco
Although EU member states have varying policies on Western Sahara, this territorial dispute does not constitute the primary agenda in EU-Morocco relations. The European Union has a long history for importing of agricultural and fishing products from Morocco. Besides, EU also seeks to establish cooperation with Morocco on preventing human trafficking and illegal immigration.
Taking into consideration that the war in Ukraine endangered the food security of the world and the enduring immigration crisis, the European Union needs stronger relations with Morocco more than ever. This fact seems like the real reason behind France’s radical shift of Western Sahara Policy in favor of Morocco and Italy’s more positive attitude towards Morocco’s effort to settle the Western Sahara dispute.
Contrary to EU members and the western world’s changing attitude towards the issue, the ECJ ruling will have a negative impact on practical outcomes of improving relations.
Court Decision as Policy-Making
The role of the European Court of Justice is to contribute to European integration via court rulings. Besides, the court assigned itself a role of developing de lege feranda despite the will of the member states. Some appreciate this policy as a progressive step; some criticize this attitude as damaging to the sovereignty of the member states. The Court leans towards more supranational positions over time, while disregarding the Member States’ preferences. It becomes clear that the European Court of Justice is even leans more towards supranationalism than its decision patterns suggest.
While the countries enjoy their right to freely determining their preference on foreign policy as a fundamental sovereign principle, the court’s decision forces member states to adopt a policy on an international issue. It is natural that those debates fuel Eurosceptic movements around the Union. These kind of rulings also raise criticism of the EU court for its excess of power and replacing ICJ, which is a UN body.
It is important to state that the decision might set a precedent for how similar disputes may be handled in international trade law, potentially influencing future agreements involving other disputed territories.
The court’s review of expediency not only reflects the diplomatic relations between EU and Morocco but also affects the economic development of Western Saharan people. While the court considers that the consent of Western Saharan people for the agreement is not asked, it also disregards the reality that nearly half of the population of people of Sahrawi origin is naturalized in Morocco and living in Western Sahara. Furthermore, all Sahrawi people in Morocco can vote and send representatives in Moroccan Parliament and represent themselves in the government while UN-recognized Polisario Front, which represents Sahrawi people, does not hold any democratic elections in the areas they control.
