On 15 January 2019, Merja Kyllönen, the Member of the European Parliament, questioned the legality of the EU-Morocco Agreement in her tweet. According to her, an addendum to the agreement does not comply with the decision made by the Court of Justice of the European Union regarding the adjacent waters of Western Sahara. The claim is not juridical, but political. Therefore, it is uncheckable.
When buying Moroccan sardines or tomatoes in the supermarket, have you ever stopped to think where they might actually be from?
Western Sahara is a disputed territory on the northwestern coast of the continent of Africa. It became a part of the Scramble for Africa when European powers such as France and the Great Britain divided the continent into colonies in the late 1800s.
Western Sahara and a part of Morocco were occupied by Spain until 1975 when the Spanish military dictator Francisco Franco ceded the reign over Western Sahara to King Hassan II of Morocco. To this day, Western Sahara, also known as “Africa’s last colony”, is partially occupied by its neighbour, the Kingdom of Morocco.
On 15 January 2019, Merja Kyllönen, Member of the European Parliament and the Confederal Group of the European United Left – Nordic Green Left, tweeted:
“Today, we are voting on an addendum to the EU-Morocco Agreement. I will vote against the addendum because it does not comply with the decision made by the Court of Justice of the European Union that the agreement should not apply to the territories of the occupied Western Sahara without the consent of the Sahrawi people.”
Sounds complicated? No wonder, because the claim is a duplex. Kyllönen basically claims two things at the same time:
1) There is a decision made by the Court of Justice of the European Union according to which the EU-Morocco Agreement must not include the territories of the occupied Western Sahara without the consent of the Sahrawi people.
2) The addendum to this agreement does not comply with the decision made by the Court of Justice.
Kyllönen had linked her source, a report by Western Sahara Resource Watch, a network of organisations advocating the rights of the Sahrawi people, in her tweet.
The Euro-Mediterranean free trade
The European Union makes different kinds of agreements with non-EU countries. One aim of the agreements is to liberalise trade between the European Union and the counterparties. Such agreements have been made with countries in the Mediterranean area, such as with Morocco, Algeria and Tunisia (or the Maghreb countries), for example. The EU-Morocco Agreement concerns reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products.
The question of the adjacent waters of Western Sahara has been the centre of many court cases In March 2012, the Council of the European Union decided to change some of the protocols in the Euro-Mediterranean Agreement.
See timeline at the bottom of this article
The Polisario Front challenged this decision in the Court of Justice of the European Union. The Polisario is a Sahrawi national liberation movement aiming to end Moroccan presence in the territory of Western Sahara. The name of the movement comes from the Spanish words Frente Popular de Liberación de Saguia el Hamra y Río de Oro, which are the two main Sahrawi regions under Moroccan control.
The EU Court of Justice decided in favour of the Polisario Front. The Council’s decision was annulled “in so far as it approves the application of that agreement to Western Sahara”.
The Council then in turn, with a support of several countries and the European Commission, appealed to set aside the Court’s judgment in the Grand Chamber of the Court. Its decision was to support the Council’s appeal. Therefore, the previous decision made in favour of the Polisario Front was discarded. Both sides have been right at some point in the eyes of the Court of Justice.
In July 2016, Western Sahara Campaign UK, an independent voluntary NGO, disputed the legality of the Euro-Mediterranean Agreement and the Fisheries Agreement to the extent to which they apply to Western Sahara. In February 2018, the Grand Chamber of the of the Court decided that there was nothing that could affect making the agreement since it does not apply to the adjacent waters of Western Sahara. This is why the appeal was not accepted.
How the Sahrawi advocates see it
Kyllönen had linked the source of her claim in her tweet. It is a report made by Western Sahara Resource Watch, “an international network of organisations and activists researching and campaigning the companies working for Moroccan interests in occupied Western Sahara”.
The report is in two parts: one is questioning the legality of the agreement, and the other is stating that consultation made by the European Union External Action was “fraudulent”. Here is one of the main points made in the report.
“3. A discussion of the trade scheme’s potential benefits, which the Commission has put at the heart of its efforts to justify its proposal, cannot predate a decision by the people of Western Sahara as to whether they want a trade agreement in the first place.”
This section summarises the standpoint of the Sahrawi: even if the agreement could bring wealth and development to the area, the Sahrawi people should have its right to be treated as a third party and have its voice heard in the decision-making process.
In addition, according to the report, the consultation done by European Union External Action was biased towards Moroccan and European interests. WSRW states that some of the groups listed refused to take part in the consultation process, or were simply never invited.
It is not clear if Western Sahara Resource Watch has the right to speak on behalf of the Sahrawi people. However, they have representatives in several countries and seem to be highly organised in their operations. According to their site, WSRW has established many campaigns relating to the use of natural resources in Western Sahara.
The point of view of the European Union
According to the Council of the European Union, the Fisheries Agreement is not contradictory to the previous decision made by the Court of Justice, our source in the Ministry for Foreign Affairs of Finland confirms. The Council also considers that all the concerns of the Court of Justice have been taken into account in the process of making the Fisheries Agreement.
The European Union claims it has taken “all reasonable measures” to take Western Sahara into account in the negotiations. Nevertheless, it remains unclear what is exactly meant by “reasonable measures” in this instance.
At the same time, the European Union declares to stand behind the UN decisions concerning the sovereignty of all peoples.
The Article 73 of the United Nations Charter requires “members which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government to develop self-government to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions.”
Are EU’s words aligned with its actions? Is Western Sahara treated as a third party like it should be?
Conclusion – the tale of two truths
As we see it, the EU is very transparent in the decision-making. Its actions are not contradictory to the decisions made by the Court of Justice – technically speaking, at least.
The case is not about the law, but about political views. We think that there are two contradicting truths, that of the Sahrawi and that of the European Union. Kyllönen bases her claim on a political source, whose accuracy is difficult, if not impossible, for us to evaluate.
This claim is too complex to solve in this report, as there are two conflicting political interpretations. The controversy is not only about court rulings but also about principles: Who gets to determine what is good for Sahrawi people? Therefore, we think it is uncheckable.
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