December 8, 2020 by eklose
The ECJ ruling, which rejects the applicability of agreements between the EU and Morocco in Western Sahara, is based on the examination of Western Sahara as a territory without autonomy whose people are entitled to self-determination. However, relations between Morocco and Western Sahara are also one of the relations of occupation and, as such, the treaties relating to the territory must also be in accordance with international humanitarian law.  The two legal frameworks share the fundamental principles to emphasize that the resources of the area concerned belong to the people of that territory and that strict standards apply to the provision of a third party in terms of resources. As part of the ECJ`s self-determination, the people of Western Sahara must give their consent before the EU can conclude agreements with Morocco on the use of these resources. Under international humanitarian law, the exploitation of the occupied territory can only take place for the benefit of the occupied population (Article 55 of the Hague Regulation was unmasked in 1907).   These two legal frameworks are not mutually exclusive. As Melchior Wathelet, General Counsel at the European Court of Justice, said in his 2018 opinion on fisheries agreements with Morocco, “some situations may fall exclusively under international humanitarian law; or under the law applicable to the exploitation of the natural resources of non-autonomous territories; other situations may occur simultaneously in these two areas of international law.” – Article 267, General Counsel`s findings on C-266 / 16, 10 January 2018. curia.europa.eu/juris/document/document.jsf?text=&docid=198362&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1 According to the European Parliament`s legal services, the agreement does not include the waters of Western Sahara or their geographical scope and would therefore be in Morocco to comply with its international obligations. The European Community could finally suspend the agreement if Morocco does not respect the interests of the people of Western Sahara. Despite the positive opinion, a large minority in the European Parliament called for the explicit exclusion of Western Sahara from the geographical scope of the agreement. Finally, Parliament adopted the Treaty and called on the Council to strengthen the monitoring mechanisms.  The European Parliament`s resolution on the EU-Morocco agreement, adopted in January 2019, states that during this consultation, “the majority of the parties expressed the socio-economic benefits that the proposed tariff preferences would bring”.
(paragraph 11). It states that “reasonable and achievable measures have been taken to inquire about the agreement of the population concerned by these inclusive consultations” (paragraph 8), but also states that “the [ECJ] has not specified in its judgment how the public`s agreement should be expressed… With regard to this criterion, there remains some uncertainty” (paragraph 12). However, the resolution asserts forcefully that “this agreement does not imply any form of recognition of Morocco`s sovereignty over Western Sahara.” (paragraph 5).