Western Sahara, the European Commission and the Politics of International Legal Argument

Abstract

On 10 July 2018, the Council of the European Union decided to approve an amendment to its Association Agreement with Morocco in order to enable import of fishery and agriculture products from Western Sahara. The decision had to be in conformity with an earlier judgment by the Court of Justice of the European Union (CJEU) which had concluded that the agreement did not cover Western Sahara -- a territory largely controlled by Morocco since 1975. CJEU had reached its judgment based on reasoning under international law, in particular the law of treaties and the law of self-determination, and had found that Western Sahara was a separate territory which could be covered only with the consent of its people. After the jdugment, the Council instructed the European Commission (COM) to negotiate an amendment which would enable continued trade, and in which ‘the people concerned by the agreement have been adequately involved’. COM subsequently conducted consultations with ‘stakeholders’ in Brussels and Rabat. In the ensuing decision to adopt the amendment agreement, the Council noted that ‘[t]he Commission … has taken all reasonable and feasible steps in the current context to adequately involve the people concerned in order to ascertain their consent to the agreement.’ Many international lawyers felt that the deal was still in violation of international law and the Court’s judgment, but the Council was persuaded by COMs account. How did that happen?