Allegiance blindness, extra-territorial exuberance, and security ambivalence: a critical analysis of the ruling of the European court of justice on products originating from Western Sahara

It is submitted that this sort of judicial creativity is not warranted in the Western Sahara case on the grounds of the basic rule of law principles enshrined in the architecture of the EU and binding on the court. First of all, it has been mentioned earlier that the EU's powers are limited when it comes to their regional scope, the subjects to which they apply, the domains of regulation they cover, and the functions they pursue. Vlad Constantinesco et Valerie Michel, `Competences de l'Union Europeenne', Repertoire de Droit Europeen (2011) vol C(19), 22. If one considers this latter point and reads it together with the basic notion that sovereignty is defined by the scope of powers vested in it, then it seems fair to conclude that the ruling of the ECJ on products originating in Western Sahara amounts to an unjustifiable extension--primarily taken on policy grounds--of the scope of application of European law to a non-EU territory.

Proceedings before the European Court of Justice are governed by rules in relevant treaties and their attendant protocols. Among these are the Statute of the European Court of Justice and the court's internal regulations. Fabrice Picod, `Cour de Justice: Procedure', Repertoire de Droit Europeen (2021) vol C(2), 9. These rules serve to ensure its judicial mission as a body tasked with reviewing the interpretation and application of EU law, Marco Darmon et Christophe Vahdat, `Cour de Justice', Repertoire de Droit Europeen (2007) vol C(1), 1. albeit with a scope limited to European space and the peoples of EU member states. This means that, when it comes to a third state that is a signatory to an agreement with the EU, political considerations should not come into the foreground. Greater deference should be paid to the rule of law principles that underpin the international legal order. In the case at hand, these could have warranted stronger consideration of alternative legal categories (such as those equating sovereignty with “allegiance”) when these apply to the matter at hand, without prejudice for their legal framework of origin--in this case, Shari'ah law--that pushes its roots in religious culture.

Contradictory effects of the ecj ruling: the indivisibility of agreements and the needs of regional security

Besides matters of law, a ruling can also be evaluated in light of the consequences it produces. In this respect, the ECJ's ruling to exclude Western Sahara products from the system of preferential trade for products originating within Morocco gives rise to important contradictions with the principle of indivisibility of international agreements and with the security needs of the region, as acknowledged by a variety of international reports.

Consequences of Non-Compliance with the Principle of Indivisibility of Agreements. In recent years, security matters have gained prominence within the Euro-Mediterranean Association Agreement (EMAA) framework between Morocco and the EU. Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part [2000] OJ L 70/2 <http://data.europa.eu/eli/agree_internation/2000/204/oj> accessed 10 January 2024.

This trend is evidenced by the continuing interest towards closer integration with security and law enforcement agencies on the Arab side of the Mediterranean. Against this background, the EMAA facilitates equipment sales from the EU to Morocco to help patrol the Mediterranean coast more efficiently, thereby guarding Spanish territory against migrant flows towards Europe.

Separate from the EMAA framework are additional “special relations” that the EU has been cultivating with many Arab states--including Morocco-- for the prevention of terrorism. Francesco Cavatorta, Raj Chari and Sylvia Kritzinger, The European Union and Morocco, Security Through Authoritarianism? (Political Science Series 110, Institute for Advanced Studies 2006) 13-4. It follows that security cooperation between the EU and Morocco currently takes place along two complementary axes: the EMAA framework and the framework of special relations.

The EMAA was signed in 2000, and it has a broad remit spanning from cooperation over economic, legislative, social, and cultural affairs to security matters--such as cooperation over customs arrangements (Article 59), contrast of money laundering (Article 61), and contrast of drug trafficking (Articles 62 and 63).

The pursuit of a `special relation' in EU- Morocco cooperation is evidenced instead by the Joint EU-Morocco document on strengthening bilateral relations/Advanced Status of 2007. This document lays down a framework for political and strategic dialogue between both parties, making way for diversified cooperation in several areas--including security matters. Document Conjoint UE-Maroc sur le Renforcement des Relations Bilaterales / Statut Avance (du 23 juillet 2007) <https://www.eeas.europa.eu/node/4327_en?s=204> accessed 10 January 2024. It is important to stress that this focus on security is not just a passing highlight of the EU-Morocco relationship but has been steadily gaining ground due to the increasing size and type of security threats at European borders. For instance, the importance of the security aspect was reiterated in a joint statement issued at the fourteenth meeting of the EU-Morocco Association Council (a joint body established by the EMAA). Council of the EU, `Joint Declaration by the European Union and Morocco for the Fourteenth Meeting of the Association Council: Press Release' (European Council, Council of the EU, 27 June 2019) <https://www.consilium.europa.eu/en/press/press-releases/2019/06/27/joint-declaration-by- the-european-union-and-the-kingdom-of-morocco-for-the-fourteenth-meeting-of-the-association- council/> accessed 10 January 2024.

At the same time, security cooperation is a two-way street, meaning that the security of Europe's Southern neighbours--within their borders--cannot be considered a separate matter: international cooperation ought also to generate positive security spillovers for the EU's partners, like Morocco. Benedicte Real, `Cooperation Between Morocco and Europe in Terms of Security: Is the European Union an Inevitable Partner?' (2018) 6 Journal of International Law and International Relations 129. This means that the security of North Africa, the Sahel, and Morocco should also matter as a joint concern, with a view to preventing a void that would favour countries like Libya and the African Sahel States, characterised by pronounced fragility on security issues.

By proposing a multidimensional association with its southern neighbours, the EU is also not hiding its intention to promote a pure security approach for protection against real or potential risks that may originate in this region. This implies a close correlation between the security aspects highlighted by the Barcelona Declaration and the parallel European offer of cooperation on economic and financial matters. Bouchra Essebbani, `La Cooperation Entre le Maroc et l'Union Europeenne: De l'Association au Partenariat' (PhD thesis, Universite Nancy 2 2008) 331.

It follows that this accent on security, which characterises the EU's broader policy to the Mediterranean region, should also govern the interpretation of any agreements between Morocco and the European Union insofar as they include security-related clauses. Even though these clauses take a general formulation, and despite the lack of a more organic agreement on security matters between the EU and Morocco, the reality of Euro-Mediterranean cooperation described above suggests that there is an unmissable focus on security in EU-Morocco relations, effectively vesting Morocco with the role of gatekeeper vis-a-vis terrorist threats, organised crime, and illegal cross-border migration.

These considerations suggest the centrality of bilateral security concerns at the heart of the EU-Morocco relationship. For this reason, it does not seem improbable that the removal of trade privileges on Western Sahara products might deteriorate the wider architecture of EU-Morocco relations and, particularly, warrant a suspension of all agreements between the parties, inclusive of their security clauses.

This suggestion would be a plausible application of the principle of indivisibility of international treaties, which equally applies to the agreements and protocols between Morocco and the European Union. Euro-Mediterranean Agreement establishing an association (n 64) 62.

The EMAA consists of five protocols that focus on, respectively, arrangements applying to imports into the Community of agricultural products originating in Morocco (Protocol 1); arrangements applying to imports into the Community of fishery products originating in Morocco (Protocol 2); arrangements applying to imports into Morocco of agricultural products originating in the Community (Protocol 3); the definition of originating products and methods of administrative cooperation (protocol 4); mutual assistance in customs matters between the administrative authorities (Protocol 5). It implies that suspending the applicability of Protocol No. 1 to Western Sahara products can negatively impact all agreements between the parties, for instance, by casting uncertainty over the legal status of the residual trade privileges that the EU wishes to grant to Morocco to the exclusion of Western Sahara.

In support of this view, it is necessary to remind oneself that the residents of Western Sahara still benefit from the remaining agreements entered into between Morocco and the European Union: a point that was not disputed--and in fact reaffirmed--by the European Commission in its report of December 22 2021. European Commission, `2021 Report on the Benefits for the People of Western Sahara on Extending Tariff Preferences to Products from Western Sahara' (European Commission, 22 December 2021) <https://ec.europa.eu/taxation_customs/2021-report-benefits-people-western-sahara-extending- tariff-preferences-products-western-sahara_fr> accessed 10 January 2024. This point lends decisive credit to the presumption that the European Court of Justice ruling wasn't adopted with a careful mapping of its possible ripple effects on the wider tapestry of EU-Morocco relations.

Security Risks Arising from the ECJ Ruling. The critical analysis developed thus far suggests that Morocco could hold a legitimate claim to sovereignty over Western Sahara on the grounds of “allegiance”--a category recognised by Islamic law and which applies to the region as part of dar al-islam. Secondly, the analysis has also shown how the ECJ's ruling that excludes Western Sahara products from the applicability of trade preferences under Protocol 1 of the EMAA fits poorly with the principle of indivisibility of international obligations and the wider repercussions on EU- Morocco relations. If the above is true, one might construe the ECJ's ruling on Western Sahara products as effectively an economic embargo on the disputed region.

This will likely have repercussions on the economic and social situation of local residents and may increase the region's vulnerability to security and terrorist threats that are commonplace in the Sahel Region. Such an outcome would ultimately frustrate the stated intentions of European and international bodies. Additionally, this inconsistency could also be construed as a relinquishment--on the part of EU member states--of the international duty known as `Responsibility to Protect' (RtoP). Ivan Simonovic, `The Responsibility to Protect' (2016) 8(4) UN Chronicle: Human Rights <https://www.un.org/en/chronicle/article/responsibility-protect> accessed 10 January 2024.

Let us consider, as an example, the 2021 European Parliament report on the `New EU Strategic Priorities for the Sahel'. Eric Pichon and Mathilde Betant-Rasmussen, `New EU Strategic Priorities for the Sahel: Addressing Regional Challenges Through Better Governance' (European Parliament, Think Tank, 7 July 2021) 1 <https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2021)696161> accessed 10 January 2024. The report recognises that recent events in the Sahel Region prove the extent of its political instability, offering troubling indications of weak democratic governance in the region.

The activities of extremist groups and internal conflicts have weakened the region's democratic transition. This environment of political fragility and lack of government legitimacy has increased the difficulty of addressing security and humanitarian issues in the Sahel. Moreover, the persistent likelihood of rentierism posed by non-elected armed groups and an increasing pattern of violence against regions and resources have contributed to growing internal and cross-border displacements in the Sahel states. At the same time, the lack of adequate governance mechanisms to manage this displacement--further exacerbated by environmental degradation, resource scarcity, and population growth--has eventually led to an acute humanitarian crisis.

The same report observes that, since 2011, the European Union Strategy for the African Sahel has focused on both security and development in the hope of beginning to address such interconnected challenges. This notwithstanding, EU efforts have predominantly focused on a military approach to combat the increased terrorist activity.

This has secured tangible results but ultimately failed to provide long-term regional stability. In response to this, the European Union has also developed a new integrated strategy in the Sahel that explicitly targets the political dimension, with a focus on governance mechanisms, human rights, and cooperation with civil society and local authorities to safeguard the long-term integrity of security cooperation with the countries in the region.

Laying side-by-side the tone of this European Parliament report and the effect of the ECJ's ruling on Western Sahara products, it is difficult not to pick up profound contradictions.

On the one hand, the EU recognises the instability of the African Sahel region (of which Western Sahara is an extension) and appears well aware of the risks to security and political stability and of conditions conducive to the rapid increase of terrorist activity. On the other hand, the ECJ ruling “embargoes” Western Sahara products, thereby reducing economic opportunities for inhabitants of the area.

The European Parliament's interest in the African Sahel Region has not been accidental; rather, it is borne of the awareness that this region is a source of migration flows and security threats for EU countries. Studies carried out by the North Atlantic Treaty Organization (NATO)have also underscored how the security architecture of the region-- at least from a military point of view--invites action from the Arab side, with additional support necessary from North Africa, Europe and the international community, prioritising the need for dialogue with countries in the region. Rabah Aynaou, NATO and the Security Challenges of the Sahel-Sahara Region Within the New Geopolitical Order (Research Paper 110, NATO Defense College 2015) 12 <https://www.ndc.nato.int/ news/news.php?icode=774> accessed 10 January 2024.

The NATO report suggests that NATO must adopt a cohesive approach towards the African Sahel. This entails being transparent about the priority of security concerns in the area and the seriousness of the threat they pose to NATO strategic interests and, second, having a shared notion of the action that needs to be taken. NATO, Strategic Foresight Analysis Regional Perspectives Report on North Africa and the Sahel (HQ SACT Strategic Plans and Policy 2023). In this respect, it is difficult to see how the ECJ ruling would contribute to either of those goals.

Taking a humanitarian approach, the United Nations High Commissioner for Refugees issued a report in 2021, arguing that the deteriorating situation in the Sahel Region forces people to flee from homes and deprives vulnerable communities of basic services. This is a consequence of the fact that non-State armed groups directly target schools, health centres, and other key infrastructure. In turn, this leaves the civilian population exposed to extortion, targeted killings, cattle rustling, looting of shops, and threats of eviction from their villages. UNHCR, `Sahel Situation (Tillberi and Tahoua Regions)' (UNHCR Operational Update, April 2021) 1 <https://reporting.unhcr.org/sites/default/files/Niger%20Sahel%20fact%20sheet-April2021.pdf> accessed 10 January 2024.

A 2001 American report issued by the United States Commission on International Religious Freedom, titled `Islamists in the Central Sahel Region', Madeline Vellturo, `Islamists in Central Sahel: Violent Islamist Groups in the Central Sahel' (USCIRF, May 2021) 4 <https://www.uscirf.gov/publication/factsheet-islamists-central-sahel> accessed 10 January 2024. complements the picture drawn by the previous two reports. It takes stock of the fact that violent Islamist groups have moved into parts of Mali, Burkina Faso, and Niger, threatened religious freedom there, imposed aberrant interpretations of Islamic law, restricted religious practice, and executed individuals for their beliefs. These events have resulted in the growth of religious tensions and religious persecution across West Africa. The report deemed similar developments extremely worrying in light of US regional policy and its efforts to promote religious freedom.

This picture also applies to Western Sahara, which is on the fringes of the Sahel region and not immune from its criticalities. Hence, the ECJ ruling appears difficult to comprehend-- even on policy grounds--when placed in this degrading security situation. This precariousness is most evident in Libya, which bears the scars of terrorism and the security threats characteristic of the Sahel region as a whole. Mohamed Eljarh, Les Defis et Enjeux Securitaires Dans L'espace Sahelo-Saharien: la Perspective de la Libye (Dialogues securitaires dans l'espace Sahalo-Saharien, Friedrich-Ebert-Stiftung, 2016) 5.

Conclusion

This article has undertaken a critical review of the 2021 ECJ ruling that excludes preferential trade treatment accorded to Moroccan products only those products originating in the Western Sahara region, even when they are subject to the control of Moroccan customs authorities. In legal terms, the ECJ's ruling is questionable on the grounds of taking for granted a picture of sovereignty that--if commonplace on the European continent--is narrower than what other legal systems allow.

For instance, concepts such as “allegiance” significantly broaden the scope of sovereignty under Islamic law, such that Morocco's sovereignty over the region is not brought into question by the presence of a non-elected armed group and that the latter group does qualify for standing in international disputes.

Instead, the ECJ seems to have made a political choice, as evidenced by its selective reading of international law, by casting to one side alternative possible notions of sovereignty under a non-Westphalian system like that of Islamic law--where categories like “tribe,” “allegiance,” and “loyalty” do make a difference. In doing so, the ECJ overlooked the international legal regime that applies to tribal and indigenous rights, which the European Union has endorsed, as well as the post-1990s practice within the UN for dealing with the uncertain representation of Western Saharas' people.

Moreover, even on an understanding of sovereignty modelled after that of states, it begs the question of whether the mere nonstate paramilitary presence in a region should suffice to clear the threshold for international standing, as opposed to more encompassing notions of order and authority that transcend a narrow militaristic reading.

A second critique inheres in the extra-territorial application of EU law, which in the case at hand involves the invalidation of an international agreement by a court that has been set up under the EU legal architecture and whose remit is circumscribed to policing the legality of this order insofar as it applies to member states--but not to third parties like Morocco. Related to this is the critique of excessive judicial discretion in the ECJ's ruling, which seems more grounded in political considerations than in basic tenets of procedural justice. Indeed, these would have suggested a preliminary step of gathering--in a spirit of equanimity--the norms vying for application in the case, including those of a religiously established order like Shari'ah law. This aspect was, unfortunately, overlooked by the ECJ in its ruling.

Another strand of the argument involves the court's incomplete scrutiny of the practical consequences of its ruling. For example, in the context of alarming international reports suggesting deteriorating security conditions in the Sahel Region, a judgment that effectively imposes an embargo on Western Sahara products exacerbates vulnerability to terrorist groups and is difficult to square with a goal of enhanced stability in the Sahel region.

Last but not least, the ECJ's decision seems to fall foul of the principle of indivisibility of agreements by selectively misapplying only one part of its agreement with Morocco. This would be sufficient reason for Morocco to deem the remainder of the agreements and protocols between the parties as no longer binding--extending to political, economic, social, and cultural affairs, as well as to the security clauses that would be of particular interest to EU member states.

Given the foregoing, it is difficult to see a silver lining to the ECJ's ruling, which encourages non-elected armed groups in other regions of the world to follow suit and thereby enables them to use their position to threaten the economic interests of the state governments with whom they are in dispute over sovereignty. In the long run, this type of attitude could have material adverse effects on the relationship of the European Union with countries placed in the same position as Morocco.

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