Its a treaty about fish, but its largest implications regard the land.
The draft text of a fishing agreement between the EU and Morocco being negotiated this week in Rabat includes a controversial provision that would extend the deal to waters adjacent to Western Sahara, a contested territory south of the North African country.
Western Sahara is claimed both by Morocco and a pro-independence movement led by the Polisario Front. No other country recognizes Rabats sovereignty over the region, and the European Court of Justice ruled in February that a fishing agreement between the EU and Morocco would be invalid if applied to the waters off the territorys coast.
“Including Western Sahara in the agreement would lend legitimacy to Rabats claims to the territory,” said Pål Wrange, a law professor at Stockholm University. “What is driving Morocco is 98 percent political. The EU is perhaps not recognizing Moroccan sovereignty [over the region] but it is a de facto recognition of Moroccan control over Western Sahara.”
“However, we wont sign any agreement with any country — EU or not — that doesnt include Western Sahara” — Ahmed Réda Chami, Moroccos ambassador to the EU
An EU foreign affairs official acknowledged that the wording of the agreement “could be seen as implied recognition” but added that “the Commission is looking for the best possible outcome for everyone.”
The Commission argues that another decision by the European Court of Justice, from 2016, allows it to extend the deal south of Moroccos recognized borders. “The EUs position is that it is possible to extend this agreement to Western Sahara under certain conditions,” said a Commission spokesperson.
That ruling held that an association agreement between the EU and Morocco regarding trade in agriculture could be extended to goods produced in Western Sahara if the indigenous Sahrawi people consented to the deal and benefited from it.
Moroccos position is that the agreement is fully compliant with European law. In cooperation with Rabat, the European Commission invited Sahrawi civil society groups to a meeting in Rabat in February in an effort to establish consent, as required under the 2016 ruling. Representatives from Polisario Front say the group was not invited to the meeting.
This weeks round of negotiations started Wednesday and is expected to continue until Sunday.
Legal experts and EU officials point out that Morocco has considerable leverage in the negotiations to renew and amend the current accord, which expires on July 14.
Rabat has close security relations with several EU countries, which have included joint counterterrorism operations. Morocco has offered to help Europe stem religious extremism by training imams preaching in European mosques about moderate Moroccan doctrines, which are based on the Maliki school of Islam.
Three EU diplomats confirmed that Spain and France are spearheading the push to renew the fisheries protocol. While Paris rallies behind Rabat as the former colonial power, it is Madrid that stands to lose the most if a deal falls through.
Of the 126 European boats with licenses to fish under the existing agreement, 90 are Spanish. The Spanish enclaves of Ceuta and Melilla are geographically surrounded by Morocco, and large groups of migrants have made repeated attempts to enter Spanish territory and claim asylum.
“Spain is particularly concerned about migration,” Ahmed Réda Chami, Moroccos ambassador to the EU, told journalists at a Brussels press conference in February. “If we dont see big headlines in newspapers about the problem of migration on the EU-Morocco border, it is because Morocco does the work with the Spanish.”
Moroccan fishermen unloading their catch. An EU fisheries official said that Moroccos threats to stop cooperating with the bloc on immigration and security matters is “political posturing” | Abdelhak Senna/AFP via Getty Images
Morocco refers to Western Sahara as “the Southern Provinces” and considers the region an integral part of its territory and national identity, he added.
“Morocco has always been there and a reliable partner [for the EU]. Its that spirit that prevails so there isnt any blackmail,” Chami said. “However, we wont sign any agreement with any country — EU or not — that doesnt include Western Sahara.”
Back to court
Some legal experts have warned that a deal with Morocco that includes Western Sahara could set a precedent for how the EU treats other contested regions, such as Crimea or Palestine.
“Geopolitically this isnt an easy situation but if [the EU] accepts it here, can you justify continued sanctions against Russia for Crimea or occupying eastern Donetsk?” said Markus Gehring, an EU external affairs lecturer at Cambridge University. “I can see how the Commission is in a bind but you ignore [European] Court of Justice judgments at your own peril.”
Fishermen off the southern coast of Spain | Cristina Quicler/AFP via Getty Images
The Polisario Front, which has challenged both the EUs existing fisheries and agriculture agreements with Morocco in the European Court of Justice, said it is prepared to sue the European Commission once again if it incorporats Western Sahara into the negotiations.
“The European Court of Justice has been very clear that this agreement is valid so far as it does not include Western Sahara, and to include Western Sahara means to play the card of illegality and to challenge the rule of law and the EU courts,” said Emhamed Khadad, Polisario Fronts coordinator for a self-determination referendum at the United Nations.
Since 1991, the U.N. has been working with Morocco and the Polisario Front to hold a referendum in Western Sahara about whether it should join Morocco or become independent.
“This is a coup against the peace process engaged by the U.N.,” said Khadad.
The EU remains Moroccos largest trading partner — 55.7 percent of Moroccos trade in 2015 was with the bloc.
An EU fisheries official said that Moroccos threats to stop cooperating with the bloc on immigration and security matters is “nothing more than political posturing,” since the North African country also benefits from its agreements with Europe.
The EU remains Moroccos largest trading partner — 55.7 percent of Moroccos trade in 2015 was with the bloc. The duo have a free-trade area as part of their association agreement, which means that Moroccan products are sold in the single market tariff-free and vice versa. According to the European Commission, trade between the two amounted to €34.6 billion in 2016.
A Commission spokesperson stressed that the “EUs general position on Western Sahara remains unchanged” and that it supports the peace process at the U.N.