Last week, the EU’s General Court handed the European Commission a major defeat when it struck down the EU’s fisheries agreement with Morocco on the grounds that it also, illegally, covered Western Sahara.
While the annulment of the agreements with Morocco was praised by human rights advocates, it could have serious repercussions on the Union’s diplomatic ambitions.
EU courts have already ruled on three other occasions that the EU’s fisheries and wider trade agreements with Morocco do not include the waters adjacent to Western Sahara. So, what’s the big deal then, you might ask?
Well, while earlier versions of the agreement did not explicitly mention Western Sahara, this time around, the Commission explicitly outlined that Western Sahara was to be included in the scope of the agreement. The deal was ratified by both the European Parliament and the member states.
The dispute over Western Sahara is a long-running frozen conflict. Morocco claims sovereignty over the territory. The Sarahwi independence movement, the Polisario Front, demands a referendum on independence.
Attempts by the United Nations to mediate a compromise have made glacial progress. This row will probably be almost unchanged in ten years’ time.
However, the Court’s ruling could, and perhaps should, have been foreseen.
The Court has repeatedly stated that Polisario Front is the legitimate representative of the people of Western Sahara and that no agreement can be concluded without the consent of the Sahrawi people.
The Commission tried to get around the consent question by instigating a separate consultation process with a select group of local businesses, bypassing Polisario. The Court, unsurprisingly, decided that this did not amount to consent.
International diplomacy is a messy business. Agreements that are reached behind closed doors, package deals and careful cost-benefit analyses are among the standard toolsets of every diplomatic endeavour.
In the meantime, the EU executive is stuck in a bind. It makes sense, both economically and politically, to strengthen relations with Morocco, and some member states are quite keen to do it.
Rabat, for its part, is an assertive diplomatic player. Having seen the United States change policy to recognise its sovereignty over Western Sahara, it now wants the EU to follow suit. With member states divided on the matter, that is not going to happen.
The Court does not and, indeed, should not be concerned by that. Politicised courts chart a route that curtails the rule of law. Any signs that the Commission does not respect the rule of law would be manna from heaven for the likes of Poland and Hungary.
The question for the Commission is – particularly given that the ruling should have been expected – how it navigates this delicate balancing act, offering incentives to Morocco, and salvaging the trade agreements, while respecting the Court ruling.
It won’t be easy. When law stymies diplomacy, it rarely is.
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