Washington DC - Moroccan diplomacy suffered two blows in the first two months of 2018. After the African Union adopted a communique that went contrary to Morocco’s expectations, the European Court of Justice dealt another blow.
Washington DC – Moroccan diplomacy suffered two blows in the first two months of 2018. After the African Union adopted a communique that went contrary to Morocco’s expectations, the European Court of Justice dealt another blow.
On February 27, it ruled that the Morocco-European Union fisheries agreement is valid “as long as it does not apply to the Western Sahara and its adjacent waters.”
The ruling unequivocally confirmed the advisory opinion of former Advisor General Melchior Wathelet, who said in early January that that the EU-Morocco fisheries agreement should be annulled since it involves “waters adjacent to Western Sahara.”
But to observers’ surprise, Moroccan officials had a different understanding of the ruling. Perhaps refusing to admit the shortcomings of their approach, they had no qualm in stating to the press that the ECJ’s ruling “confirmed” the validity of the Morocco-EU fisheries agreement.
Morocco’s Foreign Affairs Minister, Nasser Bourita, told Moroccan news outlet le360 that “nothing in the [ECJ’s] verdict challenges the political legitimacy of Morocco to conclude agreements regarding the Moroccan Sahara with the EU.” The same reassuring message was conveyed by Morocco’s Minister of Agriculture and Fisheries, Aziz Akkhanouch, and Morocco’s ambassador to Brussels, Ahmed Reda Chami, who said that the ECJ “has distanced itself from the political opinion of its advocate general Melchior Wathelet.”
These statements reveal a worrying pattern in the behavior of many Moroccan officials, who make unsubstantiated statements to the media to project the image that Morocco is winning all its diplomatic battles against the Algeria-backed Polisario and their supporters.
Rather than using this sinuous method, Moroccan officials would do a good service to their King, their country, and their fellow citizens by facing the reality as it is, telling the truth, and taking the necessary steps to fix what went wrong. It is their duty not only to tell the truth, but also to take the bull by the horn and convey to the EU that Morocco’s territorial integrity is not negotiable.
Lack of due diligence
When one reads the statements of some Moroccan officials, it appears unclear whether they have any institutional memory when dealing with their bilateral and multilateral partners. Yet the recent history of relations between Morocco and the European Union shows that the appeasing rhetoric that Moroccan officials used following the ruling of the ECJ is not the appropriate approach that will help Morocco defend its interests.
What Moroccans need to see and hear is not the same broken record that the EU is Morocco’s major partner and that the two parties share the desire to strengthen their partnership. What Moroccans expect from their officials is the adoption of a firm policy that would force the EU and its institution to respect its commitments with Morocco and stop interfering in the UN-led process regarding the Western Sahara.
Rather than insisting that the two parties enjoy excellent relations, Moroccans officials should have issued a strong-worded statement condemning the ECJ’s ruling and immediately suspending the fisheries agreement. Such a decision would have caused a shock-wave in many European countries, forcing them to take the necessary steps to prevent the ECJ and some NGOs supportive of the Polisario from interfering in the agreements binding the two parties, as well as from dictating the EU foreign policy and undermining Morocco’s territorial integrity.
Recent history shows that when Morocco showed it resolve to fiercely defend its strategic interests, EU institutions have been forced to rethink their positions.
In December 2011, the European parliament refused to extend the EU-Morocco fishing agreement for one year, because, among other reasons, the agreement lacked any proof that EU money benefitted the population of the Western Sahara. Immediately after, Moroccan authorities suspended the activities of European fishermen in Moroccan waters and announced the end of the agreement linking the two parties.
It took the two parties 18 months and six rounds of extensive negotiations to come to a new agreement, signing in July 2013 a four-year agreement, pending the approval of the EU parliament. Under the new agreement, the EU fishermen were allowed access to Morocco’s fishing resources in exchange of €40 million a year. The new agreement increased the annual compensation that the EU paid to Morocco by €4 million. By the signing of the agreement, Morocco succeeded not only in increasing its financial compensation, but also in obtaining recognition from the European Union that the fishing agreement was in line with international law.
“I can’t predict if the European Parliament would approve this agreement or not, but this one respects the international law and stipulates that Morocco respects the international law and human rights,” EU Fisheries Commissioner Maria Damanaki told reporters following the signing of the agreement.
This statement was a slap in the face of the Polisario and its supporters, who had spent months lobbying the EU to reject the agreement on the grounds that the population of the Western Sahara would not benefit from it and that Morocco had allegedly violated the human rights of the population living in the territory.
A Strong Hand of Unused Cards
Moroccan diplomacy should wage a legal and political battle in light of the repeated rulings of the ECJ. Morocco has numerous tools in its playbook to force the EU to reign in its institutions in a way that respects its strategic interests. At the legal level, there is no doubt that the ECJ will continuously issue the same ruling as the one that it issued in late February as long as the United Nations views the Western Sahara as a disputed territory whose final status is yet to be decided. This is a battle for which Morocco needs careful preparation and the presence of competent legal advisers able to defend its position and rebuke all the arguments used by Polisario supporters.
At the political level, Morocco should put pressure on the EU and use its leverage in cross-continental security matters to elicit a statement similar to the one issued by the EU Fisheries Commissioner in 2011. The success of the EU security policy in fighting illegal immigration and terrorism depends largely on Morocco, which gives it plenty of room to maneuver to pressure the EU.
Over the past decade, Morocco has made enormous efforts to help its European partners to effectively address the scourge of undocumented immigration. Part of Rabat’s effort to halt illegal immigration into the Spanish enclaves of Ceuta and Melilla in northern Morocco was the decision to build a wire wall along its border with Melilla. This decision, along with Morocco’s close collaboration with its European counterparts, has resulted in a dramatic decrease in the number of undocumented sub-Saharan immigrants arriving in European soil.
The role that Morocco plays in stopping illegal immigration to Europe is of such paramount importance that any decision by Rabat to shift its position in the matter would have a disastrous impact on the EU. According to a report in the Spanish daily El Mundo in August 2014, a decision by Moroccan authorities to turn a blind eye to undocumented immigrants attempting to reach Spanish soil caused an unprecedented surge in makeshift boats arriving at the Spanish coasts. Between August 11 and 12 of the same year, several makeshift boats carrying over 1,000 would-be immigrants reached Spanish coasts. The incident caused the alarm of the Spanish government, especially since the number of illegal immigrants who entered Spain throughout 2013 amounted to just 2,500.
The same can be said about the fight against terrorism. The success of European countries in fighting this scourge and foiling several terrorist attacks depends largely on their cooperation with Moroccan intelligence services. The key role Morocco plays in helping its European counterparts thwart terrorist attacks was on display following the Paris attacks in November 2015, after which Morocco intelligence services helped their French counterparts locate the whereabouts of Abdul Hamid Abaaoud, the mastermind of the attacks. A year later, Moroccan authorities helped their French counterparts arrest a seven-person cell in Strasburg and Marseille, which was preparing to carry out another terrorist attack in France.
In addition, the close cooperation between Morocco and its European partners has helped Spain foil a significant number of terrorist attacks and dismantle as many terrorist cells in Spanish territory. European leaders are fully aware of that, hence the need for Moroccan diplomats to show more firmness in their response to the blackmail and provocations of European institutions.
Building a relation on win-win basis
Despite the fact that ECJ judges are independent, there is still room for Morocco to put pressure on the EU and prevent it from issuing rulings about the Western Sahara. ECJ judges are appointed by individual member states of the EU for a period of six years. If faced with questions of national security – such as those of illegal immigration and terrorism – EU members may be forced to deter the ECJ from interfering in the UN-led political process.
This would not be the first time a European country would intervene in the judicial process to end an investigation that puts national security in jeopardy. For instance, in 2006, former British Prime Minister Tony Blair intervened in a criminal investigation into allegations that UK’s arms company BAE had paid bribes to Saudi princes to win contracts. Pressured by the Saudi government, which threatened to cut diplomatic ties, Blair forced the Attorney General to end the investigation. Despite the independence of justice in the United Kingdom, Blair intervened to end the legal proceedings, because he feared they could result in “real and immediate risk of a collapse in UK/Saudi security, intelligence and diplomatic co-operation.”
This strategy has proved successful in pushing a number of European countries to reconsider their hostile positions to Morocco with regards to the Western Sahara. We all remember how the firm position Morocco adopted in the last quarter of 2015 pushed Sweden to go from announcing its intention to recognize the self-styled Saharawi Arab Democratic Republic to desisting the idea and stressing its respect for the UN-led political process. In a matter of four months, the firmness shown by the Moroccan government – boycotting Swedish products, freezing the opening of an IKEA store in Casablanca, and summoning the Swedish Ambassador to Rabat – pushed the Swedish government to state that “the criteria required by the international law to recognize Western Sahara are not fulfilled”.
Morocco’s resolve to ward off attempts by EU institutions to infringe in the UN-led political process has pushed another country known for its sympathy for the Polisario to rethink its positions. In a statement he made before the Danish Parliament on July 17, 2017, the Danish Minister of Foreign Affairs, Anders Samuelsen, defended the legality of imports of Moroccan products originating from the Western Sahara, arguing that they “benefit” the population of the territory.
Additionally, in a note it sent to the parliament on January 11, 2018, the Danish government called for support of the European Commission’s plans to start the negotiations of a new fisheries agreement with Morocco to replace the current agreement, which will expire next July. What makes the position of the Danish government significant is that Copenhagen had voted against two fisheries agreements between Rabat and Brussels in 2011 and in 2013.
The position that Moroccan diplomacy adopted following the ruling of the ECJ is very puzzling and pushes many Moroccans to wonder what has prevented Rabat from reacting as vigorously as it did in early 2016, following the ruling of ECJ on the Morocco-EU agriculture agreement. We remember how, immediately after the ruling, the Moroccan government issued a strongly-worded communique hinting at the possibility of rethinking its overall partnership with the EU in the advent that the latter did not strive to override the ruling. The communique was followed two months later by the decision to suspend all contacts with EU institutions.
Morocco showed the same resolve following another ruling by the ECJ in December 2016 that the 2012 agriculture agreement did not apply to the Western Sahara, and that this territory does not fall under Morocco’s sovereignty. Morocco reacted immediately through the Minister of Agriculture and Fisheries, Aziz Akhannouch, who threatened to terminate the agriculture agreement and hinted that Morocco did not rule out freezing its efforts to stop the flow of undocumented immigrants attempting to reach Europe.
Questions Waiting to Be Asked
The way in which Moroccan diplomacy handled the question of the fisheries agreement raises many questions. Why did Moroccan diplomats show no readiness to question the grounds on which the ECJ based its politicized ruling?
For example, the ECJ claims the people of the Sahara were not consulted prior to the agreement, but who are the Saharawis? Isn’t the main cause for why the referendum hasn’t been held is because there was no agreement on who is Sahawari and, therefore, eligible to vote? Who are the Saharawis that should be consulted prior to the signing of an agreement involving Western Sahara and its adjacent waters? Should we consult the Saharawis living in the territory or those living in Tindouf whose number and composition are a mystery?
Has Morocco not been calling for years for the holding of a census in Tindouf to determine who are living there and their relation to the Sahara? How can we talk about the Saharawis when there have been no steps to determine who they are, especially since the Polisario and Algeria have been refusing to let it happen? How can the Polisario claim that it should be consulted prior to any agreement when a report conducted by the EU showed that the Polisario and Algerian officials have embezzled, for four decades, the humanitarian aid destined to the Tindouf camps? Does the Polisario have any moral authority to represent the interests of the Saharawis?
All these questions could be used by Morocco to challenge the ECJ’s ruling and the bias of its judges. In addition, there is even a loophole in a UN resolution in 1980 that Morocco can use where it says that the Polisario is “a representative of the Saharawi people” and not “the” representative.
King Mohammed VI has tirelessly worked in recent years to rekindle Morocco’s diplomacy, bring the country back to its African fold, and enable it to become a major player at the regional level. Nevertheless, all this work could be undone and put in jeopardy if our diplomacy does not show the necessary due diligence, clear-sightedness and resolve to build on the gains achieved since King Mohammed took it upon himself to lead the Moroccan diplomacy by accelerating the cadence of his tours in Africa and elsewhere.
Samir Bennis is the co-founder of and editor-in-chief of Morocco World News. You can follow him @Samir Bennis