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The General Court of the European Union’s ruling published on September 28, 2021,[1] whereby it annuls the Council decisions regarding the agreement between the European Union and Morocco amending the tariff preferences granted by the European Union to products of Moroccan origin and, second, the Sustainable Fisheries Partnership Agreement, is shocking in how it hardly hides its political nature, although it painstakingly uses legalese jargon to make its point.
Full of contradictions and unwarranted assumptions, the ruling came out more as a political statement than a legal opinion, thereby giving the Court a role it does not have and should not have. Instead of talking about fish and vegetables, their origins, and whether the local populations benefit from these resources, the Court judges overstepped their role, and, strangely enough, issued a political statement on sovereignty and “peopleness” in Western Sahara.
The result has been a travesty and a usurpation of the UN mandate, and the Security Council’s and the Secretary General’s efforts to find a solution to the conflict since 1991.
In the absence of a real understanding of the history and the sociology of the territory, which the Judges seem to lack, they can only advance vacuous political statements, coated in legalese jargon.
How can you bestow the notion of “people” on nomadic tribes that roamed spaces without any consideration for colonial and post-colonial borders? What is the basis of “peopleness”? Even the notion of a “nation” would be an aberration in the absence of founding myths, unifying folklore that praises the deeds of heroes and foundational moments! The nation is a construction![2] Saharan tribes were not interested in this exercise because they belonged to this loose entity called the Sahrifian kingdom to which they pay allegiance, sometimes taxes, and sometimes aspired to conquering it when they became strong, or took refuge therein fleeing Siba wars,[3] or traded camels in its cities, or have their learned sons serve as judges or local lords for its different dynasties.
The closest they came to a national aspiration was as subjects of the sultan, which may happen to be from amongst them, as was the case with the Almoravids.[4]
It is therefore safe to say that the sociological nature of Saharan tribal structure makes the territory only accessory to the pastoral needs of the population. The territory changes from Draa, to Noun, to Adrar, and other vast Saharan spaces depending on the availability of grazing pastures, water and safety of passage. Western Sahara was a colonial construct, reinforced by proto-nationalist desires, fueled by cold war designs and geostrategic considerations. As such, it reflects neither the cultural ecology of the Saharans nor their complex history as one of the groups that indelibly marked the demographic and cultural and political fabric of Greater Morocco.
The will of the population is not always transferable to the status of the territory: the population may choose to stay under Moroccan sovereignty or choose another form of governance but the territory has another legal status which depends on who ruled over it before Spanish colonialism (by virtue of the accords signed with maritime powers in 18th and 19th centuries), [5] and on who initiated the process of decolonization starting with Terfaya in 1958, the resistance to the French-Spanish Ecouvillon Operation against the Liberation Army in 1958, the registration of the Moroccan demand with the UN Fourth Commission in 1964,[6] the retrocession of Sidi Ifni in 1969, the Green March in 1975 and the Madrid Accords in 1975.
These acts of post-coloniality are ignored by some militants (credulously followed by the Court judges) because they are adamant on setting up another post-coloniality narrative based on an imaginary construct of an “oppressed people and a colonized nation.”
In the absence of sociological evidence to warrant “peopleness” and historical evidence to warrant “nationhood”, the promoters of this post-post-coloniality never explained how they would reconcile the sociology of nomadism and its malleable ecological spaces with the historical jurisdiction over the Western Sahara (and parts of the Eastern Sahara) territory. The result has been a nationalist rhetoric, sometimes advancing the post-colonial argument, sometimes the human rights agenda and, a third time, the natural wealth of the territory, and sometimes mixing them all, without any attempt to build a historico-sociological narrative that withstands critique, especially from the standpoint of historiography. Unaware, of this complexity, it was easy for the EU Court judges to fall into the romantically attractive trap of “peopleness” and “nationhood”.
Sovereignty over Western Sahara cannot be decided by judges and the General Court of the EU is no qualified to do so. Historically, the nomadic Saharan tribes did not live on the territory in a sedentary fashion in such a way as to own it; moreover, owning a piece of land or pasture individually or collectively does not amount to a sovereignty over the territory; sovereignty over a territory is a supra-tribal concept that supersedes the concerns of pasture, water, and nomadic communal life;[7] sovereignty over a land is not always based on property rights; if that were true, then Russia would have been right in claiming Crimea back (given that the majority of its inhabitants speak Russian or are of Russian origins).
And France would have no right to sell Louisiana to the US in mid-nineteenth century because of its dominant French culture and demography. Culture and demography could inform legal decisions regarding sovereignty (national property) but it’s not a standard rule, especially in some non-western contexts.
The last point is the question of representation. The foundation of the Polisario Front in Rabat in the early seventies was aimed at liberating Western Sahara from Spain and integrating it into Morocco [8].
Independence became an option when the Moroccan authorities and political parties failed to listen to the young Polisario leadership and even suppressed a peaceful demonstration in TanTan in 1972, which was organized to ask for the reintegration of a decolonized Western Sahara into Morocco.[9] Gaddafi adopted the group in 1973 and convinced it to turn into a revolutionary movement and fight for independence, as a way of creating nuisances (and ultimately toppling) the then allegedly “reactionary” regime of Hassan II.
What is important here is that the Polisario founders were aware at the beginning that Western Sahara could be at odds with history, culture and ecology if it were to renege on its historical role as a source of renewal in Moroccan dynastic politics. Unfortunately, that glimmer of hope was lost due to Moroccan government short-sightedness and the emergent adventurism and primitive nationalism of Gaddafi-sponsored Polisario.
The Court judges are not alone in ignoring these historical facts but what is odd is that they brush off the decisions coming out of the consultations with democratically elected Sahrawi bodies (local elected councils in Western Sahara with whom EU consultations were carried out) in favor of a guerrilla group, aided by the Algeria military, that refuses to identify or set free the warehoused “refugees” in Tindouf Camps despite regular calls from the UN Security Council and UNHCR, that engages in terrorist acts along the protection wall in Western Sahara and in the Sahel region, and that has a bleak human rights record, consisting of documented acts of torture, killings, disappearances against Sahrawis and POWs.
Polisario said that the consultation was not carried out properly and the court obliged. The Court judges favored the opinion of a Stalinist pseudo-terrorist group “representing” less than 15 % of the Sahrawis over elected officials democratically elected by 85 % of the Sahrawis.
These aberrations are at the heart of the contradictions and the imagined assumptions of the Court’s hardly disguised political agenda. The lack of coherence comes from the romantic celebration of an unrealistic nationalism, that is not grounded in history or in sociology. As such the ruling came as a mere political statement lacking legal and juridical rigor and begging questions to profound issues that have to do with “peopleness”, sovereignty and representation, issues that the court is not mandated to tackle and deliberate on.
[1] General Court of the European Union, Press Release no 166/21, Luxembourg, 29 September 2021 Judgments in Case T-279/19 and in Joined Cases T-344/19 and T-356/19 Front Polisario v Council
[2] Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso, 1991) & Homi Bhabha, Nation and Narration (Routledge: 1990).
[3] Bled-Siba : Land of dissidence or the area of the Kingdom of Morocco whose tribes or inhabitants refused to pay taxes or accept government-appointed caids (local chiefs). Nonetheless, these tribes rarely rejected the authority of the Sultan
[4] The Almoravids were born out of the Saharan nomadic tribes in the Mauritanian Adrar and roamed the Saharan West between Morocco and Senegal around 1040s under the spiritual leadership of the Malekite Abduallah Ibn Yassine before conquering Awdaghost, Awlil and Sijilmasa and setting capital in Aghmat in the High Atlas[4]. Here is a Saharan dynasty, of nomadic Lemtouni origins, to whom both Saharan and non-Saharan tribes paid allegiance, and which unified northern parts of Mauritania, south-western parts of Algeria, and all of Morocco and Andalusia under one flag in the Eleventh and Twelfth Centuries. [4] See Vincent Lagardère, Les Almoravides jusqu’au règne de Yusuf b. Tasfin (1039-1106), (Peyronnet Georges : 1993).
[5] Erik Jensen, Western Sahara: Anatomy of a Stalemate ( Boulder: Lynne Rienner Publishers, 2005).
[6] In 1964, at the request of Morocco, the Western Sahara issue was included in the Agenda of the Special Committee of Decolonization of the United Nations. In 1965, the UN General Assembly adopted resolution 2072, urging Spain to take immediate action and negotiate with Morocco the retrocession of the occupied territories of Sidi Ifni and the Sahara.
[7] James A. Caporaso, “Changes in the Westphalian Order: Territory, Public Authority, and Sovereignty,” International Studies Review Vol. 2, No. 2, Co Order (Summer, 2000), pp. 1-28.
[8] The POLISARIO Front, a liberation group founded in Morocco, on May 10, 1973 by Mustapha Sayed El Ouali, aimed to “opt for revolutionary violence and armed struggle as the means by which the Saharawi population can recover its total liberty and foil the maneuvers of Spanish colonialism’’ (15); however, the movement completely changed its course of action, delivering an ambiguous statement in favor of full independence of the Western Sahara, during its Second Congress in August 1974. The Congress proclaimed also the creation of the Saharawi Arab Democratic Republic (SADR) as a government-in-exile to be based in Algeria. The POLISARIO received support first from Libya and then has up till now enjoyed political, military and diplomatic backing from Algeria. See Mohammed El Yazghi, Assahra Hawiyatouna, book-interview with Youssef Al Jalili, (2018.)
[9] Tony Hodges, Historical Dictionary of Western Sahara. (The Scarecrow Press, INC.: 1982) pp. 113-117.
