On October 3 2025, the EU and Morocco concluded an modification (‘the modification’) to the EU-Mediterranean Settlement (‘the affiliation settlement’). With the approval of the Council it’s already being utilized provisionally pending entry into pressure. Its function is to allow the continued granting of tariff preferences to merchandise originating in occupied Western Sahara. This non-self-governing territory has been beneath Moroccan occupation since 1975. Its individuals, the Saharawi, maintain the appropriate to self-determination (Western Sahara Advisory Opinion, para 70). The Moroccan invasion pressured a big portion of the Saharawi to flee throughout the border to Algeria, the place they’ve lived in refugee camps ever since.
Starting in 2012, the Entrance Polisario, in its position as Saharawi nationwide liberation motion and UN-recognised consultant of the individuals, has sought to problem the legality of EU-Moroccan commerce agreements utilized to the occupied territories (mentioned on this weblog right here, right here, right here, right here, right here, and right here). In 2024, the CJEU annulled a Council Resolution extending current commerce agreements to Western Sahara and set out the situations beneath which such an extension can be lawful (mentioned intimately right here and right here).
This week’s newest renegotiation seeks to convey the present affiliation settlement in step with the CJEU’s situations. The rushed and surreptitous circumstances of its conclusion have already drawn strident criticism from the European Parliament’s Committee on Worldwide Commerce, which was not knowledgeable of the Fee’s intention to request provisional software and raised doubts in regards to the Fee’s said timeline (see specifically feedback of the Chair and the Rapporteur for the Maghreb Area, 19:55:52–19:59:29). The issues with the 2024 judgment have already been identified by commentators, who elevate doubts over its conformity with well-established worldwide legislation (right here and right here). We are going to flip as a substitute to contemplate whether or not the Fee’s renegotiation meets the CJEU’s situations on their very own phrases.
The situations formulated by the CJEU
Below the CJEU’s present jurisprudence, a commerce settlement making use of to occupied Western Sahara shall be lawful offered that it’s concluded with the consent of the Saharawi individuals (C-104/16 P, para 106) and merchandise originating from the occupied territory are labelled as such (C-399/22, para 89). The Council doesn’t have discretion to waive the requirement of consent (joined circumstances C-779/21 P and C-799/21 P, para 135). However consent will be presumed if the settlement satisfies the next cumulative situations:
1) it doesn’t give rise to an obligation for the Saharawi;
2) and supplies that the individuals of the territory obtain a profit from the exploitation of that territory’s pure assets which is
a) particular, tangible, substantial and verifiable;
b) proportional to the exploitation;
c) accompanied by ensures that exploitation shall be in conformity with the precept of sustainable growth;
d) and supplies for an everyday management mechanism to confirm whether or not the profit is actually acquired by the individuals. (C-779/21 P and C-799/21 P, para 153)
The CJEU additionally clarified that the ‘individuals’ that ought to obtain the profit (i.e. the Saharawi) are to not be equated with the ‘inhabitants’ on the territory (which incorporates Moroccans residing in Western Sahara). As well as, the ‘individuals’ contains all Sahrawi regardless the place they reside: in occupied Western Sahara, the territories managed by the Polisario, the refugee camps in Algeria, or the diaspora.
The modification and the EU’s unilateral declaration
The modification provides primarily two issues. It requires merchandise originating in occupied Western Sahara to bear labels stating their origin and introduces a joint evaluation by the EU and Morocco, to be carried out no less than every year, specifically regarding sustainable growth, benefits stemming from the settlement, and the exploitation of pure assets (particular preparations to be decided at a later date). The origin labels foreseen are: ‘Dakhla Oued Ed-Dahab’ or ‘Laâyoune-Sakia El Hamra’.
In a separate unilateral declaration, the EU states that it’s going to present funding for the area, enhance its humanitarian help to the Algerian refugee camps, and assist appropriate programmes in sectors reminiscent of training. That is finished expressly to supply advantages in step with the CJEU’s jurisprudence. The declaration envisions the institution of an everyday management mechanism, mirroring the CJEU’s language above regarding the verification of advantages.
Compliance with the CJEU’s situations
As issues labelling, whereas the modification foresees origin labelling, it does so in accordance with Morrocco’s administrative designations ‘Laâyoune-Sakia El Hamra’ and ‘Dakhla-Oued Eddahab’, somewhat than referring to ‘Western Sahara’. Nor does it embrace a clarification reminiscent of ‘Moroccan settlement’, as was deemed mandatory within the case of products from Israeli settlements within the Occupied Palestinian Territory (C-363/18, para 57). That is liable to mislead customers as to the place of provenance, doesn’t allow an knowledgeable moral resolution, and if something, solely reinforces the Moroccan place.
The Fee made no try to hunt Saharawi consent. It sought somewhat to fulfill the necessities for presumed consent. It doesn’t meet them.
First, the advantages from commerce don’t accrue to the Saharawi as an entire. They’re felt solely on the occupied territory the place financial actions are carried out, after which predominantly by the majority-Moroccan inhabitants residing there. On account of long-lasting government-sponsored settlement insurance policies, the Sahrawi now represent a minority in Western Sahara. UN our bodies, particular mandate holders, and rights teams have constantly denounced Morocco’s practices of systematic discrimination and marginalisation towards the Sahrawi. Below these situations it’s extremely uncertain that commerce advantages will go to the Saharawi. And the modification itself doesn’t foresee a concrete management mechanism: the joint evaluation refers vaguely to ‘benefits stemming’ from the settlement and makes no reference to verifying profit to the Saharawi.
Second, the one profit that verifiably accrues on to the Saharawi is humanitarian help to the camps, which doesn’t come up out of the settlement. It arises out of the EU’s separate declaration. This declaration arguably doesn’t type a part of the settlement: solely the trade of letters—governing commerce preferences, labelling, and joint evaluation—issues the EU and Morocco collectively (the declaration on humanitarian help is given solely by the EU). The trade of letters and the declaration are authorised by the Council Resolution in separate articles; solely Article 1 refers back to the ‘conclusion of the Settlement’, whereas Article 2 issues the declaration made ‘when signing the Settlement’. That the declaration is meant to be distinct from the settlement can be consistent with the context of its conclusion. Morocco considers Western Sahara to type a part of its sovereign territory, recognises neither the Saharawi individuals nor its proper to self-determination, and has constantly intervened in CJEU proceedings to stop the Saharawi from asserting their proper to self-determination.
Third, no matter its inclusion throughout the settlement, humanitarian help isn’t a profit throughout the CJEU’s which means. The aim of the profit requirement, because the CJEU explains, is to make sure that any settlement
adequately preserves the appropriate of the individuals in query to self-determination or the everlasting sovereignty over pure assets which derives from that proper. (para 156)
That is mirrored within the formulation, ‘profit from the exploitation of that territory’s pure assets’ (para 153). If advantages are to protect the appropriate to everlasting sovereignty over pure assets (PSNR), they need to accrue straight from the exploitation of these very pure assets. Humanitarian initiatives in favour of displaced refugees can’t be construed as a direct consequence of the exploitation of Western Sahara’s pure assets. An help dedication made to a individuals ‘when signing’ a commerce settlement with the occupying energy exploiting that individuals’s assets isn’t the identical as a profit accruing on to the individuals from the exploitation of their assets. One is the try to present expression to the appropriate to PSNR. The opposite is at finest scant compensation for its violation.
This level is vital. The pure assets on a non-self-governing territory type part of the individuals’s fledgling sovereignty. Within the phrases of Decide Weeramantry within the East Timor Case, the ‘knowledge underlying’ PSNR is that for any individuals, sovereignty over their financial assets is ‘an vital element of the totality of their sovereignty’ and that for ‘a fledgling nation, that is notably so’ (pp 197-8). The exploitation of Western Saharan pure assets with out Saharawi consent is the erosion of the Saharawis’ fledgling sovereignty.
Actually, the commerce settlement itself dangers entrenching and legitimising an illegal occupation that’s inherently incompatible with the Sahrawi individuals’s proper to self-determination. Since 2003, Morocco has halted plans for a referendum in Western Sahara and denied any significant prospects for Sahrawi governance over their land and pure assets. It’s troublesome to think about that restricted humanitarian help or marginal socio-economic advantages for a small phase of the labour pressure can proportionally outweigh the five-decade-long denial of the Sahrawi individuals’s entry to and management over their very own assets.
Lastly, it’s debatable whether or not the settlement itself supplies for an everyday management mechanism. Based on the CJEU, the aim of the management mechanism is to confirm ‘whether or not the profit granted to the individuals in query beneath that settlement is actually acquired by that individuals’ (para 153). The mechanism offered for beneath the settlement (the annual joint evaluation) is directed to sustainable growth, benefits, and useful resource exploitation—to not whether or not the Saharawi obtain advantages.
Even when the mechanism had been supposed to confirm the distribution of advantages, it’s uncertain that it could show efficient. Since 2015, Morocco has constantly denied entry to Western Sahara for UN our bodies and impartial monitoring mechanisms, together with the Workplace of the UN Excessive Commissioner for Human Rights and the UN Mission for the Referendum in Western Sahara (MINURSO). It might already be troublesome for an EU-led mechanism to achieve free and impartial entry to the area with out the chance of being co-opted by Moroccan authorities. A mechanism that envisions Morocco’s direct involvement in each implementation and reporting is inherently vulnerable to producing biased and unreliable outcomes.
Outlook
The Entrance Polisario is definite to hunt the annullment of the Council Resolution concluding the modification. This litigation is prone to activate the next key questions.
First, regarding the presumption of consent, the CJEU must tackle the query of whether or not humanitarian help constitutes a proportional profit accruing to the Saharawi individuals as an entire from the exploitation of their pure assets—and whether or not the advantages that accrue to the majority-Moroccon inhabitants on the occupied territories by commerce however represent a big and verifiabe profit to the Saharawi individuals. As we argue above, neither does.
Second, assuming the Council and the Fee achieve establishing the presumption of consent, a central query will then be whether or not the Entrance Polisario is a ‘respectable consultant’ of the Saharawi individuals for the needs of calling in query the existence of presumed consent (as distinct from the query of illustration for the needs of authorized standing). The CJEU will probably attempt to transfer within the areas between ‘UN-recognised consultant’ (A/RES/34/37 para 7), ‘the respectable consultant’, ‘a respectable consultant’ and ‘privileged interlocutor’ (C-779/21 P para 89). As argued elsewhere, these distinctions are specious and the CJEU ought to deal with the Entrance Polisario because the consultant of the Saharawi in conformity with established worldwide institutional follow and scholarship.
Third, if the Polisario succeed on this level, the important thing problem shall be establishing that the advantages don’t fulfill the court docket’s situations. On this regard, the CJEU’s 2024 judgment reversed the burden of proof. This creates substantial evidentiary issues for the Polisario’s legal professionals: supplies regarding the software and results of the treaties on the occupied territory shall be within the fingers of the Moroccan authorities that apply the commerce agreements and haven’t any incentive to cooperate.
And the occupation continues
The upshot of the EU’s coverage in follow is to supply financial sustenance and symbolic legitimacy to a state of affairs that’s extensively considered illegal beneath worldwide legislation: Morocco’s occupation of Western Sahara. Tucked away within the EU’s unilateral declaration is the promise of desalination amenities—an funding that can allow the additional enlargement of Moroccan agriculture in Western Sahara and additional entrench the occupation. A current knowledgeable opinion on the ICJ’s Advisory Opinion on Insurance policies and Practices of Israel within the Occupied Palestinian Territory urged the EU establishments to conduct a full-scale reassessment of its insurance policies in the direction of Israel to convey them in conformity with its obligations to not recognise, help or help the upkeep of Israel’s illegal occupation. If the EU takes severely its responsibility in Article 3(5) TEU to advertise the strict observance and growth of worldwide legislation, it could do nicely to do the identical regarding its dealings with Morrocco. The modification has but to obtain the European Parliament’s approval—if the Committee on Worldwide Commerce is something to go by, the modification’s passage might but be a bumpy one.
