The Front Polisario Verdict and the Gap Between the EU’s Trade Treatment of Western Sahara and Its Treatment of the Occupied Palestinian Territories

Abstract

Morocco’s control over Western Sahara and Israel’s control of the West Bank bear similar features in terms of public international law. Yet, when it comes to the application of its Common Commercial Policy, the EU has been treating the two cases differently. With respect to Israel, the EU determined that the 1995 EU-Israel Association Agreement is not applicable to the West Bank and Gaza Strip, thereby denying Israel any trade benefits with respect to the Territories, whereas for many years it insisted that its 1996 Association Agreement with Morocco is applicable to occupied Western Sahara, thereby enabling Morocco and Moroccan corporations to enjoy trade benefits with respect to Western Sahara. The willingness of the EU to pursue its CCP vis-à-vis Morocco and Western Sahara (de facto application with no de jure recognition) in a manner inconsistent with, if not contradictory to its practice towards Israel and the West Bank and Gaza Strip (no application and no recognition), raised much criticism. In December 2016 the European Court of Justice adopted a verdict that rejects the applicability of the EU-Morocco Association Agreement to Western Sahara (The Front Polisario Verdict). This article aims to (1) analyse the gap between the EU’s trade policy and practice in these two cases and the legal and other implications thereof, and (2) address the question whether the verdict in Front Polisario eliminates this gap. Within this context, the article analyses the interface between the CCP and international law. In tackling these themes, the article will contribute, more broadly, to scholarship dealing with the interface between public international law (including issues of statehood, occupation and self-determination) and international trade, with specific reference to the applicability of international trade agreements to disputed and occupied territories.