Silencing the Saharawi: Legal Fiction and Real Plunder in Africa's Last Colony

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FOCUS | INDIGENOUS PEOPLES & UNIONS 13 25/4 | International Union Rights | Since 2013, the EU Commission has been pushing to consolidate its trading arrangements with the Morocco into a ‘Deep and Comprehensive Free Trade Area’ (DCFTA). For over a decade, the existing agreements with Morocco have in practice been knowingly applied to Western Sahara and its waters – a non-self governing territory over which Morocco has claimed sovereignty since Spanish withdrawal from the former colony in the 1970s. Already in 1966, following the Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514), the UN General Assembly adopted a Resolution (2229) calling for ‘the administering Power to determine at the earliest possible date, in conformity with the aspirations of the indigenous people of Spanish Sahara and in consultation with the Governments of Mauritania and Morocco and any other interested Party, the procedures for the holding of a referendum under United Nations auspices with a view to enabling the indigenous population of the Territory to exercise freely its right to self-determination’. That referendum is yet to happen, despite a 25-year UN mission designed to bring it about. As Morocco’s largest trading partner, the EU itself acknowledges that the four-decade long dispute over the occupation of Western Sahara has had devastating consequences, including creating 174,000 Sahrawi refugees – for whom the EU committed € 5 million to ‘supply basic food products’ and € 1.15 million to ‘ensure clean water’ in 20171. Lest one mistake such contributions to this humanitarian crisis as a heartfelt gesture, it is worth recalling that the EU also provides € 14 million (and growing) in annual support to the Moroccan fishing industry under its bilateral fisheries agreement – much of which is put into infrastructure in Western Sahara, where the unlawful plunder of resources continues unabated2. Following landmark rulings from the Court of Justice of the European Union (CJEU), the EU’s practice of applying its agreements with Morocco to the territory of the Saharawi is now clearly unlawful, but the EU appears determined to push on. Earlier this year, over one hundred organisations, including the Saharawi trade union, UGTSARIO (Unión General de Trabajadores de Saguia el Hamra y Río de Oro), were named by the EU Commission as having been ‘consulted’ on the matter of such application. In fact, the vast majority had expressly refused to participate in what they deemed to be a complete sham. EU Talks Trade, But Won’t Listen The Polisario Front proclaimed the Sahrawi Arab Democratic Republic (SADR) in February 1976. In 1979, the UN recognised Polisario as the representative of the Saharawi people (General Assembly Resolution 34/37) and in 1984 the SADR became a member of the African Union (prompting Morocco to leave the organisation; since its own readmission in 2017, Morocco has been campaigning to reverse SADR membership). Polisario has launched multiple challenges before the EU’s courts against the application to Western Sahara of both planned and existing EU-Moroccan agreements - on liberalisation, fisheries, agriculture and aviation - arguing that no agreement with Morocco can be applied to the territory without the consent of the Saharawi people3. The CJEU has – to an extent – validated Polisario’s complaint, albeit in a manner which has allowed it to take comfort in legal fiction, rather than address a concrete reality. As a matter of textual interpretation, the Court rejected the view that these agreements apply to the territory of Western Sahara; nor can they so apply without the consent of the people of Western Sahara, as this would constitute a clear breach of international law. In finding that the agreements do not apply to Western Sahara, the Court however ruled that the Polisario Front therefore doesn’t have any standing before the Court in respect of the agreements, on the basis that Western Sahara is not legally affected by such agreements. That legal fiction is unravelling quickly. The EU is satisfied that its gaining access to the resources and markets of Western Sahara is without qualification beneficial to the economic development of the territory. It has committed to making the practice lawful, rather than ending the unlawful practice, and is undertaking to make the necessary amendments to...