On Tuesday 28 February, a double debate was organised in the European Parliament's fisheries and agriculture committees on the outcome of the Western Sahara (a 'non-autonomous' territory under Moroccan administration) and on the benefit derived from exploiting its resources.
What are the consequences of this for European operators? The issue is on the way to becoming "a legal and political imbroglio", according to one of the lawyers called to the rescue.
Asked to give a technical opinion on the impact the Court ruling, MEPs consider the ruling clear on the substance, but nothing is explicitly stated about the scale of the corrective measures that will result from the ruling as regards the agreements with Morocco, and the wording is reportedly not yet uniform. It also seems clear that the EU did not attempt to distinguish the Sahara from Morocco from the outset, and that it must now make amends. It seems that nothing is said either about the representative quality of the Polisario on behalf of the "Sahrawi people".
The chair of the European Parliament's fisheries committee, Alain Cadec (EPP, France), added an "ideological" dimension to the debates which seemed very theoretical, revolving around the interpretation of international law. The EU officials contributing to the exchange of views said that the EU is prevented from acting outside the UN. This is a "case of a political balancing act", Vincent Piket, the head of Maghreb division at the European External Action Service (EEAS), stated. "We are not steering the process", he added.
Asked to clarify the official intentions, Piket tried hard to pass the questions on to the two parliament committees rather than answering them. "What should be done?" "How should it be done?" "What is the impact of the European Court of Justice ruling?" (see EUROPE 11694). "How should it be applied, replacing it in the general framework of the privileged partnership?" These were the questions Piket was asked – and with one certainty: "The ruling exists and we have to apply it". But "we don't have any legal basis to apply a preferential tariff" to the products from this territory, he said, adding that the solution is also being sought by Moroccan lawyers. Exploratory studies have been started (these are not negotiations, he said) and a session took place in Rabat on Wednesday.
The EEAS stated that the particular challenge is to preserve relations with Morocco – a "privileged partner" in trade and security. While some MEPs underscored this challenge, which they said is more important than the implicitly sacrificed rights of the Sahrawis, other MEPs (mainly from the Greens/EFA Group) highlighted respect for international law. Spain did not respect its duties as a colonial power when the territory became independent, one MEP from this group stated.
Seen from a different angle (mainly that of Spanish MEPs), the challenge is also that of the interests of European operators who depend on agreements with Morocco that are implicitly extended to the territory of the Western Sahara.
The current time thus seems much more given to interptetations, but with the certainty of now having a clear and inescapable basis, the lawyers stated, in whose view the EU and the other member states indeed obtained the rejection of the Polisario's complaint – which ended up in a "legal boomerang". In having the Polisario sanctioned, they were constrained to rectify their approach on this issue. Two other cases pending at the Court will confirm this (one on the fisheries agreement directly; the other, a preliminary case brought by the British NGO Western Sahara Resource Watch which clearly challenges the exploitation of the territory's resources without the consent of the people – which has been overlooked by the EU).
This point – the duty of obtaining the consent of the people – seems to have to become central and it refers to the rules of international law. How should it be organised? Who will represent this people? Will the people's consent be required for all agreements with Morocco, other than the free trade agriculture and fisheries files? What can be expected from the conclusions of the ongoing legal studies? The European commissioner for energy has already answered this point, provoking Rabat's anger. Other issues are in the process of being examined at the Parliament –particularly that on geographical indications and the protection of origin, which will probably have to incorporate this obligation. (Original version in French by Fathi B’Chir)