COMMENT: Western Sahara –  the European Commission Ignores the Decision of an EU Court, But We Don’t Have To




The Saharawi people who are indigenous to Western Sahara – a territory that is occupied by Morocco – may freely dispose of their “natural wealth and resources” and may “in no case” be deprived of their “own means of subsistence” under the common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Under international humanitarian law too, the exploitation of natural resources can only be used to offset the costs of occupation, under the principle of usufruct.


This was the theory. In reality, Morocco has been accused of plundering the wealth and resources of the Saharawi people. For example, some Saharawis started a hunger strike to highlight alleged discriminatory hiring practices by the largest Moroccan state-owned company that exports phosphates from Western Sahara (hiring only Moroccan settlers).


In January 2023, the European Commission alleged that tariff preferences under trade agreements between the EU and Morocco (that cover Western Sahara without Saharawi consent) could bring plenty of “benefits” to the population of Western Sahara. While it is certainly true that trade agreements are beneficial to Moroccan settlers who undertake business in Western Sahara, there is no evidence that they bring such benefits to most of the Saharawi people. Scholars and civil society organizations largely agree on this matter. 


In September 2021, the General Court of the European Union ruled (here and here) that it is not even relevant whether trade agreements bring any benefits to anyone living in Western Sahara. The yardstick should be whether the people of Western Sahara have granted their “free and genuine consent” to a trade agreement with the European Union. Deciding in their place has a strong neocolonial flavour. Pretending to have received consent from civil society organizations defending the rights of Saharawi people – as the European Commission has allegedly done to save face after previous court decisions – is not sufficient. Under the common Article 1 that has been mentioned above, Morocco “shall promote the realization of the right of self-determination, and shall respect that right”. Under humanitarian law too, people under military occupation can in no circumstances renounce in part or in entirety their rights. By extending the territorial scope of trade agreements to the Western Sahara, the EU could furthermore violate its international law duty not to render aid or assistance in the commission of an unlawful act.


While the EU has adopted a number of regulations to protect human rights from corporate abuse over the last decade, the European Commission thinks that it does not have to stand with the Saharawi people, and ignores the decisions of its own courts. Is it out of fear? Perhaps. If the EU stops fish, tomatoes, and melons originating from Western Sahara at the border, Morocco might stop controlling security threats and migration flows to the EU, and start a territorial dispute with Spain. The EU is not alone. Various other countries think that they “need” Western Sahara phosphate fertilizers due to supply chain shortages and concentration in Western Sahara.


What can we – the readers of the Institutions for Conflict Resolution Comments – do? It will not be sufficient, but we can stop buying food products originating from Western Sahara and start naming and shaming supermarket chains that sell them. In Switzerland, the imports of agricultural goods from Western Sahara have already been reduced virtually to zero thanks to consumer boycotts. 


On 1 March 2023, Aleydis Nissen (research fellow at FWO, F.R.S.-FNRS) presented a previous version of this comment during a side event of the 52nd session United Nations Human Rights Council in the Palace of Nations in Geneva. The event was organized by the Geneva Support Group for the Western Sahara.