A blow from European justice to the institutions of the Union and a boost to the Polisario Front. The Court of Justice of the EU (CJEU) this Friday overturned the fishing and trade agreements of the community club with Morocco, although it has granted a grace period of 12 months to execute the ruling on the second pact. The validity of the first expired in July last year. The high European court thus endorses a ruling by the General Court of the EU that in 2021, at the demands of the Polisario Front, annulled those agreements signed between Morocco and the EU. It was then determined that they involved trading in products from Western Sahara, which meant deploying their effects on a territory that the international community does not recognize as part of Morocco. Furthermore, he stressed that no consent was obtained for these agreements from the Sahrawi people, as a third party involved. Several member states had appealed to the CJEU that ruling, which the high court now ratifies by dismissing their appeals.
The highest judicial instance of the Union establishes that the agreements with Morocco were concluded “in violation of the principle of self-determination”, since the people of the Sahara did not give their consent, which was a condition of validity in the “non-autonomous territory.” [pendiente de descolonización, según la ONU]”. The CJEU judges also rule in line with the lawyer general of the European Union, who ruled in March that the fishing agreement reached with Morocco in 2019 should be annulled, “by not treating the territory of Western Sahara and the adjacent waters in a manner separate and distinct from the Kingdom of Morocco” and “not respecting the right of self-determination of the Sahrawi people.”
Rabat, which for now remains silent after the announcement of the ruling, suffers a serious setback that will force it to review its fishing and agricultural policy. But above all, it sees the progress of explicit recognition of its sovereignty over the territory in the international community slowed, after those expressed by the United States and Israel, along with several dozen countries.
For the Polisario Front, the ruling represents a “triumph of the resistance” as its initial appeals against the 2019 agreements have been upheld. The Polisario representative in Spain, Abdula Arabi, has stated on the social network as a representative of the Sahrawi population implies “recognizing the occupation” of the territory. Arabi has warned that European countries must now be “consistent” with the CJEU ruling.
“The EU reiterates the great importance it attaches to its strategic partnership with Morocco, which is broad, deep and long-term,” said the President of the European Commission, Ursula von der Leyen, and the High Representative for Foreign Policy, Josep Borrell. , in a joint statement, in which they indicate that they intend to take that partnership to a new level in the coming weeks and months “in accordance with the principle of pacta sunt servanda[los acuerdos deben ser cumplidos]”. The European Commission is analyzing the rulings in detail, in particular on preserving the validity of the agreement on agricultural products for another 12 months.
The validity of the fishing protocol signed between the European Union and Rabat in 2019 expired in July 2023, when the twenty Andalusian, Canarian and Galician boats that were then licensed left the waters under Moroccan control in Western Sahara, among a maximum of 93 negotiated for Spain by Brussels. Pending a final ruling, the parties put the renewal of the agreement on hold.
The lawyer general of the EU, the Croatian Tamara Capeta, was not of the same opinion regarding the trade agreement between the EU and Morocco of 2019, which modified the tariff preferences granted to products of Moroccan origin to extend them to products from of Western Sahara. He considered that an “administering power” can conclude, in certain circumstances, an international agreement on behalf of a non-autonomous territory (pending decolonization, according to the UN) such as Western Sahara, and argued that the Sahrawi people “cannot consent on their own.” only the celebration of an international agreement relating to its territory.” The CJEU has now ignored its recommendation.
European justice, which already denied in 2021 the validity of the consultations, favorable to the agreements, that the EU had previously maintained with associations, social agents and local entities in Western Sahara under the control of Morocco, regardless of whether or not they are Sahrawis of origin, has now ratified that criterion. The Polisario, based in Tindouf (Algeria) since Spain abandoned its former colony in 1975 and which only controls 20% of the territory, was not listened to. The CJEU notes that “a considerable part of that people [del Sáhara Occidental] “He lives outside the territory.”
The validity of the trade agreement, on liberalization of agricultural products, is maintained for one year to avoid “serious negative consequences for the Union’s external action and for reasons of legal certainty.” The high European court recognizes in its ruling that the conflict between Morocco and the Polisario affects the legality of the agreements with Rabat that involve exploitation of the natural resources of the Sahara, as the consent of the Sahrawi people in their capacity as a third party has not been obtained. .
Recognition of the Sahrawi people
The Luxembourg judges dismiss the appeals of the Commission and the Council and also recognize “the legitimacy of the Polisario Front, as an interlocutor with the United Nations, to challenge both agreements.” The people of the Sahara. “the sole holder of the right of self-determination over the territory”, according to the CJEU, was not consulted. Only representatives of the current population were, who “for the most part do not belong to that people (…) of which a large part lives in exile,” adds the high court.
The Spanish National Institute of Statistics registered nearly 75,000 Sahrawis in the Sahara, along with 30,000 Spaniards, in the 1974 census, before leaving the territory. According to Spanish sources familiar with the former colony, the UN counted between 1991 and 2007, when the preparation of the census for the self-determination referendum was interrupted, some 130,000 potential voters of Sahrawi origin. The Polisario, for its part, assures that in the Tindouf camps there are 173,600 refugees with the right to vote. Unofficial estimates in El Aaiún suggest that between 90,000 and 120,000 indigenous Sahrawis or their descendants, with links to the former Spanish colonial Administration, live today in Western Sahara, which has around one million inhabitants.
Tomatoes and melons from the Sahara
The CJEU also rules in another case on Western Sahara. It dictates that tomatoes and melons harvested in that territory must include on their labeling a mention specifying their origin and not from Morocco, as ruled this Friday by the Luxembourg judges. The high court says that any other indication “would be misleading and could mislead the consumer.” Since 2015, the EU has maintained the same position with products imported from Israeli colonies in the occupied Palestinian territory of the West Bank.
As products imported into the EU, melons and tomatoes harvested in Western Sahara must indicate their country of origin under EU regulations, say the judges, since the obligation of that reference applies not only to “the products originating from a country as synonymous with the State”, but also those that originate from territories.