Written by Ithar M. Hassan
Introduction
On October 4, 2024, the Court of Justice of the European Union (CJEU) handed down a defeat for the European Commission (the Commission) by quashing the Commission’s recent trade deals with Morocco for disregarding the rights of the Sahrawi people. During a trip to Rabat, French President Emmanuel Macron announced several trade deals with Morocco to further development in Western Sahara, an apparent rebuke of the CJEU, making it the first European Union (EU) member to do so since the ruling.1Sam Metz, France announces new investments in disputed Western Sahara, Associated Press (Oct. 29, 2024, 6:59 PM) https://apnews.com/article/france-investments-macron-western-sahara-cc9eeb698ec6603f28f7f17d98b0ac70. Macron’s announcement has led to widespread concern over political stability in the region, the undermining of the EU’s highest court, and looming questions about the Sahrawi people’s right to self-determination.
Background
In 2019, the EU signed several fishing and agriculture agreements with Morocco that included products from the Western Sahara.2EU-Morocco trade deals in Western Sahara ruled invalid, Rabat claims ‘bias’, Al Jazeera (Oct. 4, 2024) https://www.aljazeera.com/news/2024/10/4/eu-morocco-trade-deals-in-western-sahara-ruled-invalid-rabat-claims-bias. In its final decision, the CJEU found the agreement invalid because it failed to consider the consent of the Sahrawi people, a requirement of the European Council found in the implementation protocol of the agreement.3See id. (stating “consent of the people of Western Sahara to the implementation… is a condition for the validity of the decisions by which the Council approved those agreements on behalf of the European Union.”). The Court noted that because Morocco and the European Commission did not receive Sahrawi consent on land, water, and product use, the consultation process was inadequate.4See id.
The sovereignty of the Western Sahara has been in flux since Spanish colonialism over the territory ended in 1975. Since then, multiple entities, most notably Morocco, the Polisario Front, and Mauritania, have fought for control of the territory for over 45 years.5Houda Chograni, The Polisario Front, Morocco, and the Western Sahara, Arab Center Washington DC (June 22, 2021), https://arabcenterdc.org/resource/the-polisario-front-morocco-and-the-western-sahara-conflict/. After Mauritania withdrew its claim over the Western Sahara in 1979, Morocco annexed the Mauritanian portion of the territory and, by 1991, maintained control of over two-thirds of the territory.6See id. Neighboring Algeria has been a key supporter of the Polisario Front, undermining Morocco at every stage. The controversy over the Western Sahara has largely become a proxy conflict over broader regional control between Morocco, a strategic ally of the West, and Algeria, an anti-colonial state.
France and the United States are the latest countries to recognize Morocco’s sovereignty over the Western Sahara territory, reaffirming their commitment to Morocco’s regional dominance.7See id. The desire to deepen ties with Morocco relates to the ongoing refugee crises in the region that have led to an influx of migrants into Europe.
France’s decision to move forward with these trade deals despite the CJEU ruling has the potential to undermine the Court’s authority. It also reflects broader concerns about migration from the Maghreb region.
Undermining the CJEU
The CJEU’s ruling is significant for several reasons. First, the ruling has placed new obligations on EU countries seeking to build relations with Morocco. Second, and most importantly, the Sahrawi people’s right to self-determination under customary international law has been affirmed. This right derives from the Western Sahara’s status as a “non-self-governing territory” under Article 73 of the UN Charter.8U.N. Charter art. 73. The Charter imposes a “sacred trust” on UN members to protect the rights of the territory’s indigenous people.9See id. The Western Sahara is still considered “separate and distinct” from Morocco, preventing the EU as an institution from recognizing Moroccan sovereignty over the territory.10Hugh Lovatt, Still free to choose: What Polisario’s legal win means for EU ties with Morocco and Western Sahara, European Council on Foreign Relations (Oct. 10, 2024), https://ecfr.eu/article/still-free-to-choose-what-polisarios-legal-win-means-for-eu-ties-with-morocco-and-western-sahara/. The Court also noted that the Western Sahara is a third party to the agreements and that under international law, a third party’s consent is required.11C‑779/21 P and C‑799/21 P, European Comm’n and Council of the European Union v Front populaire pour la libération de la Saguia el-Hamra et du Rio de oro (Front Polisario), ECLI:EU:C:2024:835, ¶¶ 132 (Oct. 4, 2024). Therefore, if Morocco or the EU seeks to enter into an agreement relating to the territory, it must receive the consent of the Sahrawi people, who must benefit from any exploitation of their natural resources.12See id.
Despite the CJEU’s affirmation of the EU’s responsibilities under international law and its attempt to balance the economic interests of the Commission, France has not committed to involving the Sahrawi people in their dealings in the Western Sahara with Morocco. This is mostly attributed to Morocco’s strong aversion to Sahrawi self-determination and the involvement of the Polisario Front in any dealings. This undermines the authority of the CJEU and sets a precedent for non-compliance with international rulings. The Commission has the authority to undergo an infringement procedure against an EU country that fails to implement EU law, referring the issue to the CJEU. There has been no indication that the Commission is prepared to pursue this avenue against France.13Infringement procedure, European Commission, https://commission.europa.eu/law/application-eu-law/implementing-eu-law/infringement-procedure_en. Rather, the Commission is taking a back seat and allowing France to lay the groundwork for future deals with Morocco and the Western Sahara as it is in the economic interest of Europe.
While the Commission’s economic interest in the matter is clear, there are indications that the bloc’s resignation is a political calculation. The Commission is deeply concerned with its migration strategy along the southern Mediterranean and has paid close attention to Morocco’s threats to use migration as a retaliatory measure against the CJEU’s decision. In 2020, the Commission introduced the Pact on Migration and Asylum, a targeted plan to address irregular migration and enforce strong borders across the EU.14Explanatory memo on the Pact on Migration and Asylum, European Commission (May 13, 2024), https://ec.europa.eu/commission/presscorner/detail/en/qanda_24_1865. While the pact was passed in 2024, it will not go into effect until 2026. The EU still has human rights responsibilities related to migration under the 1951 Geneva Convention on the Status of Refugees and its 1967 Protocol. In order to balance its borders and uphold human rights obligations under international law, it is in the interest of the Commission to placate Morocco on the Western Sahara front in hopes that the strategic ally will help stop the flow of migrants into Europe.
Conclusion
Without a negotiated settlement to resolve the Morocco-Western Sahara conflict, economic control of the Western Sahara will remain in flux for the foreseeable future. France’s recent overtures to Morocco and the Commission’s lack of action in opposition demonstrate that the West deeply values its relationship with Morocco and its willingness to undermine its relationships with other countries in the Maghreb region. While there are valid motivations for placating Morocco, France, and the Commission must also consider the long-term implications of their actions and attempt to strengthen relationships with other regional actors. They risk allowing their geopolitical rivals like Russia, Iran, and China to gain influence with Algeria and the Sahrawi people living as refugees in Algeria. This would only further enflame geopolitical tensions and proxy competition in a region that is already experiencing a confluence of issues.