magnify
Home Posts tagged "Morocco"

The Commission’s Proposals to Correct EU-Morocco Relations and the EU’s Obligation Not to Recognise as Lawful the ‘Illegal Situation’ in Western Sahara

Published on July 13, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 11 June 2018, the EU Commission adopted two proposals (here and here) for Council Decisions to amend the EU-Morocco Association Agreement so that “[p]roducts originating in Western Sahara subject to controls by the Moroccan customs authorities shall benefit from the same trade preferences” as products from Morocco (Annex of the Proposals, para 1). The proposals come on the back of the judicial proceedings before the Court of Justice of the European Union (CJEU) that challenged the de facto extension of EU-Morocco agreements to Western Sahara over the last few years (covered here and here). Yet, they concern the trade liberalisation agreement and not the EU’s fishing rights, which is a matter to be addressed separately. Their purpose is to provide cover for the extension of the agreements on three grounds: consultation with “interested parties”; positive indirect impact on human rights; and, a contribution to Western Sahara’s economic development.

Whereas the Commission’s proposals do not engage with any relevant questions of international law, in this post, we consider whether the Commission’s recent proposals accord with international law, with particular reference to the obligation not to recognise as lawful a situation created by a serious breach of a peremptory norm (Article 42(2) DARIO and Article 41(2) ARSIWA). We argue that the proposals violate the EU and its Member States’ obligation of non-recognition of Morocco’s jus cogens breaches: the right to self-determination of people, the prohibition on aggression (acquisition of territory by force), and some of the intransgressible rules’ of international humanitarian law (IHL); insofar as the latter are a part of jus cogens (Wall AO, para. 157; Nuclear Weapons AO, para. 79). We further consider whether wrongfulness can be precluded by the consultation or consent of the Sahrawi people as a third party to the agreement, and whether the benefit provided under the agreements justifies an exception to third parties’ obligation of non-recognition. We conclude that neither of the exceptions apply and that the EU is precluded from extending the agreements to Western Sahara as a matter of international law. Read the rest of this entry…

 
Tags: ,