King Mohammed VI's official map, which includes the Western Sahara,
is available on the French Ministry for Europe and Foreign Affairs
official website
Economic blow
The CJEU’s annulment of the fishery partnership agreement predominantly hurts EU fishermen who can now no longer fish in either Western Saharan or Moroccan waters. Morocco also stands to lose €40m per
year in EU funds, including financial support to develop its fishing
industry in the Western Sahara territory. Invalidating the extension of
the trade liberalisation agreement to Western Sahara
will disproportionally impact Morocco. As a result, fish and
agricultural exports from Western Saharan to the EU will lose access to
preferential trade tariffs.
Western Sahara fruit grown by Moroccan producers will become more expensive and less able to undercut similar
products grown in European countries. This loss of competitiveness may
hit foreign investment into Western Sahara’s agricultural sector and
dent the profits of Moroccan businesses, many of which are reportedly tied to the king and his associates.
Separate to this, the court also ruled that
products such as tomatoes and melons exported from Western Sahara must
be labelled as such “so as to avoid misleading consumers as to the true
origin of those goods”. For Morocco, this will be a painful change,
given that the country retains strong ideological claims to the Western
Sahara territory.
Future relations with Western Sahara
With time, the court’s decision will resonate far beyond agricultural
exports and fishery access. The EU’s legal obligations will inexorably
impact all existing and future EU-Morocco agreements, including scientific and technological cooperation, green energy development, and European Investment Bank investment.
These agreements could eventually be blocked if they do not fully and
effectively exclude Western Sahara or receive the consent of the Sahrawi
people. This would represent another huge victory for Polisario which
hopes to gradually undermine the economic and financial interests that
underpin Morocco’s hold over the territory.
The European Commission and council have often subordinated Sahrawi
self-determination and international law to their desire to maintain
close bilateral relations with Morocco. Its government has effectively
exploited the EU’s interests for its own benefit, for example by leveraging migrant
flows to European shores to successfully force EU policy changes. But
with its hands tied by the CJEU, the EU now has only two solutions.
First, the most straightforward and legally acceptable solution is
for the commission to ensure that all present and future agreements with
Morocco fully and effectively exclude Western Sahara. This would allow
for the continued deepening of EU-Morocco ties. But Rabat has
repeatedly warned that excluding Western Sahara from EU agreements and legal instruments “could renew the ‘migration flows’ that Rabat has ‘managed and maintained’ with ‘sustained effort.’”
Second, the EU could obtain the consent of the Western Sahara people –
as represented by Polisario – to the agreements. The EU and member
state officials have previously ruled this out, given Morocco’s strong
aversion to Sahrawi self-determination and Polisario. But although
negotiating new arrangements with Morocco and Polisario would be
difficult, it is the only legal basis for maintaining trade relations
with Western Sahara and avoiding the potential paralysis of EU-Moroccan
relations.
Reviving diplomacy
Sustained efforts by the commission, supported by the council and its
member states, to supress Sahrawi self-determination have
detrimentally impacted the prospect of resolving the Western Sahara conflict. The UN’s former personal envoy for Western Sahara, Horst Köhler, reportedly made this point in May 2018, warning that the EU’s trade policy was undermining his pursuit of peace.
Now the EU could reverse this power imbalance. Rabat faces the
prospect of losing core aspects of its bilateral relations, or having to
U-turn by accepting the exclusion of Western Sahara from its
partnership with the EU. With no better option, the Moroccan government
might become more amenable to a face-saving solution that allows for
deepening ties with Europe and preserving Moroccan business interests in
the Western Sahara. But the EU will need to face down Moroccan bluster;
and the Sahrawi people will need to provide their consent.
Polisario could be open to a shared economic arrangement under the
right conditions, including EU financial compensation and the
commission’s recognition of Sahrawi rights over their natural resources.[2] This could build on Polisario’s 2007 proposal regarding
a mutually acceptable political solution that includes “advantageous
[economic, commercial and financial] arrangements” with Morocco during
an interim period leading to full independence.
The EU and its member states could use these diplomatic and economic
levers to push both parties towards a compromise solution, in line with
the legal requirements set out by the CJEU. This approach would support
peace-making efforts led by UN envoy Staffan de Mistura to end the
Western Sahara conflict.
Despite its political gains, Morocco will not be able to rewrite
international law to supports its claims or provide a lasting solution
to the conflict. Nor will Polisario achieve outright independence
through its return to war. Ultimately, hard-nosed, UN-led diplomacy supported
by the EU remains the only viable pathway. Given the ideological
distance between the parties, this should aim to coax Morocco and
Polisario towards a “free association”
proposal for Western Sahara – a pragmatic and legally sound ‘third
way’, between outright independence and autonomous integration into
Morocco, for fulfilling Sahrawi self-determination.
An EU-negotiated trade liberalisation and fishery partnership
agreement between Morocco and Polisario could start to lay the economic
foundations for a future “free association” agreement. Such an ambitious
gambit will require European countries to hold the legal line – and not
cave into blackmail, for example regarding migration flows – when
engaging with Rabat. They should accept that securing deeper relations
with Morocco is contingent on upholding international law and Sahrawi
rights.
[1] ECFR Western Sahara Strategy Group meeting with European officials, Berlin, November 2021
[2] Author’s
conversations with Polisario officials since 2020, including meetings
with senior Polisario officials in Tindouf, Algeria, September 2022
Note: The European Council on Foreign Relations does not take
collective positions. ECFR publications only represent the views of
their individual authors.
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