European court agrees with Sahrawis and overturns EU-Morocco fisheries agreement

Barcelona / BrusselsThe European General Court (EGC) has once again agreed with the Sahrawis and has overturned the fishing agreement between the EU and Morocco, because Rabat cannot negotiate without their consent. The Polisario Front, which claims independence for the former Spanish colony, had challenged the agreement on the grounds that Morocco has no right to negotiate the exploitation of Sahrawi fishing, agricultural or mining resources. The decision directly affects Spain, because 93 of the 128 European vessels fishing in Sahrawi waters under the agreement are Spanish. Wednesday's ruling proves that neither Brussels nor Rabat can negotiate international agreements on the waters of Western Sahara without consulting it as the legitimate representative of the Saharawi people.

The Luxembourg-based court's ruling, which is public, is in line with the court's position in 2015 and 2016: from the point of view of international law, Western Sahara is not part of the Kingdom of Morocco, so that Brussels cannot negotiate with Rabat an agreement on the exploitation of its resources without the consent of the Sahrawi people. To overcome this obstacle, the European Commission consulted Sahrawi organisations in the territory under Moroccan occupation, which gave their approval. The Polisario Front, the movement which according to the UN is the legitimate representative of the Sahrawi people, was excluded from the consultation and this is precisely what the ruling rejects.

Isaías Barreñada, professor of international relations at the Complutense University of Madrid, considers that the sentence is above all a corrective for the European institutions (the Commission, the Council and the Parliament): "After two sentences and Brussels' acrobatics, the big loser is not Morocco, but the European institutions, to which the court limits itself to remind that sentences and international law must be complied with". The main novelty of the resolution is that it recognises the Polisario Front as the legal and legitimate representative of the Sahrawis, and "its capacity to go before the General Court to defend the right to self-determination of Western Sahara".

And now what? Morocco and the Commission have two months to present their arguments, but the court's criteria can hardly change. "The EU has to admit that it has acted unfairly and the fishing agreement will have to be renegotiated, because the Spanish fleet will not be interested in fishing in other Moroccan waters," the professor adds. Introducing formulas for Morocco to prove that its product does not come from Sahrawi territory is not a way out either, given the experience, for example, with the ban on imports from Israeli colonies to the EU, due to the difficulties of traceability. "The EU has to admit that it cannot continue with practices which legitimise the occupation: Morocco ends where the former Spanish colony started", he points out.

Roots and ramifications of the conflict

The root of the conflict lies in the Spanish decolonisation of Western Sahara at the end of Franco's regime. In 1975, Spain abandoned the territory, which was then a Spanish province, and contravened its commitment to organise a referendum on self-determination. Morocco took advantage of this to invade Western Sahara, a situation that has lasted until today. The UN considers it a "non-self-governing territory". Most of the Sahrawi population fled to Algeria and settled in refugee camps in the desert. Under the Madrid Tripartite Agreements, Spain ceded the administration of Western Sahara to Morocco and Mauritania, but this, according to international law, does not confer sovereignty over the territory or its resources.

The ruling on the fisheries agreement is one of the factors behind the migratory crisis that Rabat provoked in Ceuta last May, when it withdrew border surveillance from the Spanish enclave on the African coast, which was accessed by thousands of Moroccans, many of whom were minors. Spain and the EU have outsourced control of their southern border to Morocco, which uses this key whenever it needs to defend its state interests. But in recent months Morocco had already taken steps to lower the tension.

The head of European diplomacy, Josep Borrell, has made every effort to make a move and, under an hour after the European ruling, he published a joint statement with the Moroccan Foreign Minister, Nasser Bourita, in which both parties say they "will take the necessary measures" to put in place a legal framework to guarantee their trade relations. The joint declaration between Brussels and Rabat also states that they "will continue to work to develop the multiple dimensions" of their "strategic" partnership, in an alliance they consider "on an equal footing", based on "trust and mutual respect".

With the rulings by the Luxembourg court at hand, the Polisario can put pressure on European companies which exploit resources in the Sahara with Rabat's approval. Twenty-five Spanish companies extract resources from Western Sahara: eighteen in the fishing sector, one in oyster farming, three construction companies, two energy companies and the Canary Islands airline Binter, according to the latest report by the Ahmed Baba Miske Centre for French Sahrawi Studies