The ruling handed down by the Court of Justice of the EU (CJEU) on Wednesday 21 December on the inclusion of the Western Sahara in the association and liberalisation agreement between the European Union and Morocco (case C-104/16P) seems to satisfy both parties: on the one side, the complainant – the Polisario – dismissed yet strengthened in its right to autonomy, and on the other side, the defenders – Moroccans and Europeans (see EUROPE 11694).
A direct consequence of this ruling, nevertheless, requires the EU and Morocco to set out legally the different agreements that link them so that it might be clearly indicated that they do not apply to a "disputed" territory. This is a delicate task for their legal and diplomatic staff.
The ruling gives rise to a feeling of ambiguity, in the view of commentators from both sides. Each draws from it what strengthens its position. Morocco and the EU tend to highlight the rejection of the Polisario's complaint, while the Polisario holds on to the diplomatic gain that comes about from the denial of Morocco's sovereignty over its 'southern provinces'. The Polisario reiterates in a document sent to the media that it "never asked for the revocations of an agreement concerning Morocco". Its only "condition was that such agreements only apply to Morocco" and to Morocco alone. "Technically speaking, the Saharan movement lost (...) However, it won everything it hoped for – and even more", the Polisario states.
And the Saharan movement calls on the EU to take due account of this in its current and future legislation, and to avoid all "economic exploitation" of the Western Sahara "without the consent of its people". However, the CJEU does not name the legal representative of this people, whose fate is in the hands of the UN mediators trying to untangle the knot with difficulty. In its press release, the Polisario attacks "the EU's complicity". "The exploitation of the natural resources of the Western Sahara is a violation of international law, an obstacle to the peaceful settlement of the conflict and a stain on the reputation of the EU", it adds.
According to EUROPE's sources, consultations were quickly organised with the Moroccans in order to delimit the scope of geographical application of all these agreements so as to repair the omission that was highlighted by the CJEU. Nothing currently indicates in what direction and by what legal means the EU intends to insert such a precision with potentially diplomatic consequences. When asked, the European External Action Service simply confirms this information but does not say any more.
In the comments of Moroccans reported by their national media, the idea would be "to imagine a redefinition" of the terms of the agricultural agreements, which might "also include the 'southern provinces', without challenging Morocco's legitimacy to conclude such agreements on the whole of its territory".
Is this opinion shared in Brussels? Nothing would currently indicate this. The choice to be made will clarify the EU's position on this file, which the EU is handling with caution by sheltering behind the UN. The European Commission has thus far limited itself to providing humanitarian assistance to Saharan refugees.
Some initial comments have been made in the European Parliament and these reflect the ambiguity of how the ruling reads. José Bové (Greens/EFA, France) said he was pleased for the Polisario, and Gilles Pargneaux (S&D, France) reported the position of the EU-Morocco friendship group which he chairs and which says that the ruling is a "triple victory" for Morocco and its supporters. The ruling will first "strengthen economic relations" between the EU and Morocco, and in Pargneaux's view, enable "their activities to be developed in the agricultural domain and thus open up a promising market for the future". This is a "victory that reinforces our crucial partnership with Morocco" he says. (Original version in French by Fathi B'Chir)