Morocco, Western Sahara and the EU

On 27 February, the European Court of Justice ruled that the EU-Morocco Fisheries Partnership Agreement cannot apply to the territory of Western Sahara. Morocco alleges that the former Spanish colony, on the Atlantic coast between Morocco and Mauritania, is part of its integral territory. The view is not officially shared by any UN member state, and the UN considers Western Sahara a Non-Self-Governing Territory.

Between 1975 and 1991 Morocco fought a war against the Polisario Front, an independence movement, which left Morocco in control of most the territory. Polisario, now based in Tindouf, Algeria, and recognised by the UN as the sole legitimate representative of the people of Western Sahara, routinely brings cases concerning the trade of Western Saharan resources to the ECJ. The day of the most recent judgment was the 42nd anniversary of the founding of Western Sahara’s government-in-exile.

Less than five hours after the ECJ released its ruling, the EU’s high representative for foreign affairs and security policy, Federica Mogherini, released a joint statement with the Moroccan foreign minister, Nasser Bourita, reaffirming their commitment to a strategic partnership, but making no mention of the specifics of the case, or of Western Sahara. The statement did mention continuing co-operation in the fisheries sector – over 90 per cent of the catch is from Western Saharan waters – and referred to other areas of co-operation, notably migration and security.

This was a remarkable display of partisanship, but not an unusual one. Morocco co-operates with the EU on counterterrorism, sends various goods to European markets, and, most important, controls the only two land borders between Africa and the EU. Migrants who are able to get to the Spanish exclaves of Ceuta and Melilla on the North African coast can try to claim refugee status, and cannot be so easily returned to their countries of origin. Spain has invested a lot of money in border fences in both cities, but the real teeth of deterrence are the Moroccan police who patrol the coastal hills outside the enclaves.

The fisheries case dates from 2015, when the Western Sahara Campaign brought the case to the High Court in London, which referred it to the ECJ. Meanwhile, in 2016, the ECJ ruled on another case relating to the legality of buying from Morocco resources that had originated in Western Sahara. It concluded that Western Sahara cannot be considered part of Morocco, and that its resources cannot be sold without the consent of ‘the people of Western Sahara’ – meaning Polisario.

This episode caused a minor shock to EU-Morocco relations. As with the more recent fisheries case, the 2016 ruling was followed within hours by a joint statement from Mogherini and the Moroccan foreign minister – Bourita’s predecessor, Salaheddine Mezouar – expressing pleasure that the case had been resolved and looking forward to the resumption of trade with Morocco. The statement made no mention of Western Sahara, or the content of the ruling.

Soon afterwards, in February 2017, the Moroccan agriculture minister, Aziz Akhannouch, asked a Spanish news agency: ‘How do you want us to do the job of stopping African – and even Moroccan – emigration if today Europe doesn’t want to work with us?’ Over the following weeks, around nine hundred migrants crossed into Ceuta and Melilla, a record number. The message was clear: amend the ECJ ruling, or Morocco will stop holding the migrants back. The European External Action Service began closed-door negotiations with the Moroccan government to allow the EU to continue buying Western Saharan resources. The EU was preparing to break its own laws – defy its own court – to persuade the Moroccans to co-operate on border policy.

At first, Polisario wasn’t consulted on an amendment to the trade deal. When it did finally hear from the EEAS, it was invited alongside several NGOs. Early indications suggested that the EEAS was preparing to confuse ‘the people of Western Sahara’, as represented by Polisario, with ‘the population of Western Sahara’, which could be just about anyone Morocco designated. Most of the NGOs declined the invitation, not wanting to be complicit in the deliberate confusion of ‘people’ with ‘population’, and ‘consult’ with ‘consent’. The negotiations went ahead anyway. Earlier this year, they came to fruition, with an agreement forthcoming between the EU and Morocco on an amendment to their trade deal that would include resources apparently originating in Western Sahara.

Why would the European Commission work to undermine an ECJ ruling? The obvious answer would seem to be blackmail over the borders at Ceuta and Melilla, leveraging the bodies of one refugee population against another, and ultimately immiserating both. The short-term stakes are humanitarian, and the implications appalling – complicity in ongoing human rights abuses in Western Sahara; undermining the UN peace process; border violence in Ceuta and Melilla – but the longer-term stakes are hardly less profound. The legal scholar Eva Kassoti recently wrote that the 2016 case ‘lends evidentiary force to critical voices in the literature that have cast doubt on the image of the EU, as evidenced by the jurisprudence of its principal judicial organ, as an actor maintaining a distinctive commitment to international law’.

The Fisheries Partnership Agreement was set to be renewed in July 2018. The Commission has signalled its intent to find a way forward, though it is difficult to imagine how this will be reconciled with the ECJ ruling, since most of the fishing takes place in waters now explicitly excluded from the FPA. Moreover, the EU’s €14 million in annual sectoral support for the Moroccan fishing industry – provided as part of the FPA – goes overwhelmingly to infrastructural projects in Western Sahara. It isn’t clear how the FPA could survive in anything like its current form without a significant departure from the ECJ ruling. In the Moroccan media, meanwhile, threats have been made about a reduction in counterterrorism co-operation, and a relaxation in control over the borders at Ceuta and Melilla.

I went to Ceuta a few years ago. Getting there wasn’t hard for me – I took a taxi from Tangier, and had my passport stamped by a border guard with a Kalashnikov slung over his shoulder – and leaving was easier, but this obviously wasn’t the case for the people in the hills I passed on the way in. And this, too, is Europe: not only the Parliament and the Court of Justice, but also the sandbags and barbed wire, and the outsourced border violence, paid for by promises of humanitarian or economic aid for co-operative African governments. The connection between these things is sometimes difficult to understand in Brussels, or in Western Sahara. In Ceuta, some of the tendons and ligaments of the European project are just visible.