On 4 October, the Court of Justice of the European Union (CJEU) handed another historic win to the Sahrawi national liberation movement, known as Polisario Front, in its struggle to end Morocco’s occupation of Western Sahara. The court blocked efforts by the European Commission to include the territory in the European Union’s trade liberalisation and fishery partnership agreements with Morocco.

The decision comes as an emboldened and well-armed Morocco continues pressing its international claims to Western Sahara. In September, it secured the endorsement of France’s president Emmanuel Macron for its “present and future” sovereignty over the territory it occupied in 1975. Meanwhile, Polisario forces continue their military attacks against Moroccan troops stationed along the sand berm which divides the desert territories.

Long-term legal battle

Since 2012, Polisario has fought a legal battle to exclude Western Sahara from the EU’s trade liberalisation and fishery partnership agreements with Morocco: its adversaries include the European Commission, the EU Council, and EU member states such as France and Spain.

In backing Polisario, the Grand Chamber – the CJEU’s highest court – re-confirmed two inter-related legal determinations: first, that Western Sahara’s status as a non-self-governing territory “separate and distinct” from Morocco means that the EU cannot recognise Moroccan sovereignty over the territory or include it in bilateral agreements; second, that Morocco needs to obtain the consent of the Sahrawi people when entering into agreements relating to their territory and ensure that they benefit from the exploitation of their natural resources.

The CJEU rejected the argument put forward by the commission and European External Actions Service that it secured the consent of the “population” of Western Sahara, as this conflated indigenous Sahrawis with Moroccan settlers. As the court pointed out, the territory’s population is different from the Sahrawi people, which includes Sahrawis still in Western Sahara and those now outside the territory – including in Polisario-run refugee camps in Tindouf, southern Algeria.

EU capitals may view the ruling as a political headache given their desire to placate Rabat. Despite recent warnings, they refused to plan for what comes next, instead trusting the commission’s legal analysis and assurances that it would triumph at the CJEU.[1] Having exhausted the appeals process, and run out of legal ploys to maintain Western Sahara’s inclusion in a way that would placate Morocco, the commission must now confront the difficult reality that it has created.

But by upholding international law in its trade relations and giving diplomacy a chance, the EU could help broker a pragmatic deal between Morocco and Polisario that provides long-term economic and diplomatic benefits; and support UN-led diplomacy which has made little progress in resolving the Western Sahara conflict.

Economic blow

The CJEU’s annulment of the fishery partnership agreement predominantly hurts EU fishermen who can now no longer fish in either Western Saharan or Moroccan waters. Morocco also stands to lose €40m per year in EU funds, including financial support to develop its fishing industry in the Western Sahara territory. Invalidating the extension of the trade liberalisation agreement to Western Sahara will disproportionally impact Morocco. As a result, fish and agricultural exports from Western Saharan to the EU will lose access to preferential trade tariffs.

Western Sahara fruit grown by Moroccan producers will become more expensive and less able to undercut similar products grown in European countries. This loss of competitiveness may hit foreign investment into Western Sahara’s agricultural sector and dent the profits of Moroccan businesses, many of which are reportedly tied to the king and his associates.

Separate to this, the court also ruled that products such as tomatoes and melons exported from Western Sahara must be labelled as such “so as to avoid misleading consumers as to the true origin of those goods”. For Morocco, this will be a painful change, given that the country retains strong ideological claims to the Western Sahara territory. 

Future relations with Western Sahara

With time, the court’s decision will resonate far beyond agricultural exports and fishery access. The EU’s legal obligations will inexorably impact all existing and future EU-Morocco agreements, including scientific and technological cooperation, green energy development, and European Investment Bank investment. These agreements could eventually be blocked if they do not fully and effectively exclude Western Sahara or receive the consent of the Sahrawi people. This would represent another huge victory for Polisario which hopes to gradually undermine the economic and financial interests that underpin Morocco’s hold over the territory.

The European Commission and council have often subordinated Sahrawi self-determination and international law to their desire to maintain close bilateral relations with Morocco. Its government has effectively exploited the EU’s interests for its own benefit, for example by leveraging migrant flows to European shores to successfully force EU policy changes. But with its hands tied by the CJEU, the EU now has only two solutions.

First, the most straightforward and legally acceptable solution is for the commission to ensure that all present and future agreements with Morocco fully and effectively exclude Western Sahara. This would allow for the continued deepening of EU-Morocco ties. But Rabat has repeatedly warned that excluding Western Sahara from EU agreements and legal instruments “could renew the ‘migration flows’ that Rabat has ‘managed and maintained’ with ‘sustained effort.’”

Second, the EU could obtain the consent of the Western Sahara people – as represented by Polisario – to the agreements. The EU and member state officials have previously ruled this out, given Morocco’s strong aversion to Sahrawi self-determination and Polisario. But although negotiating new arrangements with Morocco and Polisario would be difficult, it is the only legal basis for maintaining trade relations with Western Sahara and avoiding the potential paralysis of EU-Moroccan relations.

Reviving diplomacy

Sustained efforts by the commission, supported by the council and its member states, to supress Sahrawi self-determination have detrimentally impacted the prospect of resolving the Western Sahara conflict. The UN’s former personal envoy for Western Sahara, Horst Köhler, reportedly made this point in May 2018, warning that the EU’s trade policy was undermining his pursuit of peace.

Now the EU could reverse this power imbalance. Rabat faces the prospect of losing core aspects of its bilateral relations, or having to U-turn by accepting the exclusion of Western Sahara from its partnership with the EU. With no better option, the Moroccan government might become more amenable to a face-saving solution that allows for deepening ties with Europe and preserving Moroccan business interests in the Western Sahara. But the EU will need to face down Moroccan bluster; and the Sahrawi people will need to provide their consent.

Polisario could be open to a shared economic arrangement under the right conditions, including EU financial compensation and the commission’s recognition of Sahrawi rights over their natural resources.[2] This could build on Polisario’s 2007 proposal regarding a mutually acceptable political solution that includes “advantageous [economic, commercial and financial] arrangements” with Morocco during an interim period leading to full independence.

The EU and its member states could use these diplomatic and economic levers to push both parties towards a compromise solution, in line with the legal requirements set out by the CJEU. This approach would support peace-making efforts led by UN envoy Staffan de Mistura to end the Western Sahara conflict.

Despite its political gains, Morocco will not be able to rewrite international law to supports its claims or provide a lasting solution to the conflict. Nor will Polisario achieve outright independence though its return to war. Ultimately, hard-nosed, UN-led diplomacy supported by the EU remains the only viable pathway. Given the ideological distance between the parties, this should aim to coax Morocco and Polisario towards a  “free association” proposal for Western Sahara – a pragmatic and legally sound ‘third way’, between outright independence and autonomous integration into Morocco, for fulfilling Sahrawi self-determination.

An EU-negotiated trade liberalisation and fishery partnership agreement between Morocco and Polisario could start to lay the economic foundations for a future “free association” agreement. Such an ambitious gambit will require European countries to hold the legal line – and not cave into blackmail, for example regarding migration flows – when engaging with Rabat. They should accept that securing deeper relations with Morocco is contingent on upholding international law and Sahrawi rights.

[1] ECFR Western Sahara Strategy Group meeting with European officials, Berlin, November 2021

[2] Author’s conversations with Polisario officials since 2020, including meetings with senior Polisario officials in Tindouf, Algeria, September 2022