After the European Court of Justice (ECJ) rejected the Polisario’s appeal against the agricultural agreement signed between Morocco and the European Union in 2012, reactions varied in Morocco and Algeria and in the ranks of the Polisario leadership.


While Morocco took note of the ruling and many analysts said it is a “diplomatic victory” for Morocco, Algerian media and Polisario officials expressed their satisfaction with the “diplomatic breakthrough.”


The common denominator of these reactions is that they all drew their conclusions based on a hasty reading of the ruling. However, a careful analysis of ruling shows that the biggest winner is the European Union. The only concern of the European Union was probably to avoid any action that could lead to a diplomatic crisis with Morocco or appear as favoring Morocco over the Polisario. With this ruling, none of this happened.


ECJ maintains neutrality


Technically, the ruling can be considered positive for Morocco since it set aside the ruling made by the General Court in December 2015, which cancelled the agreement between Morocco and the European Union, on the claim that the agreement was “signed without the consultation of the Sahrawis.”


There are two readings of the resolution. Both parties (Morocco and the Polisario) can say that the Court judgment is a victory to their cause. Morocco can say that the non-annulment of the agreement is a diplomatic achievement to some extent, since the main goal Polisario was to cancel the agreement. The question presented to the Court was not whether or not the Sahara is under Morocco’s sovereignty, but rather if the Polisario had the legal standing to challenge the agreement.


If we read the ruling from this angle, we can say it constitutes a setback for the Polisario, which failed to obtain annulment or even introduce an amendment or a mechanism to monitor Moroccan exports.


However, taking into account that the ruling states that the agreement does not apply to the Western Sahara, and it does fall under Moroccan sovereignty from the point of view of the European Union, we can say that the ruling favors the position of the Polisario.


Yet, while the ruling states that the agreement does not apply to Western Sahara, the Court did not impose any control measures to ensure that Moroccan agricultural exports to the EU will not include products from the region. In the absence of any monitoring mechanism, products originating from the region will be labelled “Product of Morocco.” Thus, the buzz created by the Algerian and pro-Polisario media after the verdict was exaggerated and was meant rather to improve the moral of the Polisario, especially after their leader was prevented from travelling to Spain


If we read the verdict from another angle, it appears that it adopted diplomatic language that satisfies both parties. We must take into account that the European Union has never recognized Morocco’s sovereignty over the Western Sahara. Therefore, the language of the European Court brings nothing new nor cannot be a shock for the Moroccans or a source of rejoicing for the Polisario. Moroccan decision makers were already aware that the European Court would not use language that recognizes Morocco’s sovereignty over the Western Sahara, and that its position will mirror the position of the United Nations, which states that it is still a disputed territory.


On the other hand, it appears from the court’s ruling that the EU implicitly considers the Polisario the sole representative of the Sahrawi and the Sahrawis in the Tindouf camps are the only ones eligible to be consulted before the signing any agreement concerning the exploitation of natural resources of the Sahara. This move excludes all the Sahrawis who live in the territory, and benefit from the huge investment projects implemented by the Moroccan government over the past four decades.


The Court’s ruling turns a blind eye to the fact that Sahrawis living under Moroccan rule outnumber Sahrawis in the Tindouf camps. If the European Union looked at the list prepared by MINURSO on the Sahrawis authorized to participate in the referendum, they would realize that the number of Sahrawis who are in Sahara far exceeds the number in the Tindouf camps.


Moreover, the Court’s ruling ignores all the elections held in the region so far, which were characterized by a higher voter turnout in the region than in the rest of Morocco. It is incongruous for the European Court consider the Sahrawis in Tindouf to be the only eligible party to be consulted in any agreement, while it denies the same right to Sahrawis living under Morocco’s sovereignty. While the Sahrawis in the Sahara participated widely in local and national elections, which were hailed by international observers, the Polisario, which claims to represent the Sahrawis, holds elections in the absence of international observers or even observers from the African Union, of which the so-called SADR is a member.


The ruling of the ECJ overlooks the fact that the world is unaware of the real number of Sahrawis in the Tindouf camps. Algeria and the Polisario keep refusing to conduct a census of the population of the camps. How is it possible to legitimize an entity that prevents the presence of international observers in its elections, prohibits the multi-party system, oppresses opinions that oppose its official positions and refuses the conduct the census of the population in the camps?


Polisario is not the sole representative of the Sahrawis


The most important challenge Morocco will face in the coming years is to put pressure on the Polisario, and to convince the international community that it is not the sole representative of the Sahrawi people. In this regard, Morocco can use three cards:


Morocco should intensify efforts to publicize the efforts it has made over the past four decades to build the infrastructure of the region. It should also stress the consequential budgets it spent in the region, which undoubtedly outweigh the revenue Morocco earn through the exploitation of the natural resources of the region.


Morocco should not wait for the world to be convinced of its good faith. Regardless of the huge amounts of money it has pumped in the region, the views of international public opinion will not change as long as Morocco does not provide irrefutable arguments that refute the allegations of the Polisario, Algeria and their propaganda machine.


In a speech delivered on the fortieth anniversary of the Green March on November 6, 2015, King Mohammed VI had stressed, that Morocco spends seven dirhams for every dirham earned from the Sahara. But the international opinion is unware of these facts. Hence, the need to publicize them and raise them in international fora.


The second card is the legal loophole that exists in one of the United Nations General Assembly resolutions that the Polisario has been using to claim being the sole legitimate representative of the Sahrawis. Since 1979, the Polisario has been using General Assembly resolutions 34/37 of November 21, 1979 and the resolution 35/19 of November 11, 1980. While the seventh paragraph of the first resolution states that the Polisario is “The representative of the people of Western Sahara,” the tenth paragraph of the second resolution refers to the Polisario as a “representative of the people of Western Sahara”.


Draft resolutions discussed at the United Nations are in some cases delayed for days or weeks because Member States don’t agree on a word or phrase. Every word has its own legal weight and the use of a word instead of another could have major legal implications. Therefore, the absence of the article “the” in Resolution No. 35/19 could be explained as an act not to deny to other Saharwis in the future the right to represent the Sahrawis and negotiate on their behalf.


The third card, which is complementary to the second, is the impossibility to keep relying on a resolution adopted taken nearly 40 years ago, without accepting amendments or leaving room for interpretation. Even if we assume that the Polisario is viewed as the legitimate representative of the majority of Sahrawis, over time, other voices have emerged from inside Tindouf camps and in the Sahara. These voices that express their opposition to the Polisario, deny its legitimacy to speak on behalf of all the Sahrawis, and claim that it serves Algeria’s agenda.


Among the most important movements that oppose Polisario is Khat Achahid. This movement holds positions that are inconsistent with the positions of the Polisario, and considers the Moroccan Autonomy Plan a serious proposal that is likely to put an end to the conflict. Another vocal opponent of the Polisario is  Mustapha Salma Ould Sidi Mouloud, former commander of the Polisario Police. As member of the tribe of Lbihat, the largest branch of the tribe Rguibat, one of the most important tribes in the Sahara, Oueld Si Mouloud was expelled from the camps as soon as he praised the Moroccan Autonomy Plan.


In addition to the case of these two, many founders of the Polisario from influential Saharan tribes have fled the camps and joined Morocco. Among them there are Ali Alaadmi, known as Omar Hadrami, Bashir al-Dakhil, Brahim El Khalil, and Hamidou Ould  Sweilem. Additionally, a large number of tribal leaders returned to Morocco immediately after the ceasefire and declared their allegiance to the monarchy. These figures, who were among the founders of the Polisario since its early years, have realized over time that the separatist movement has become a puppet in the hands of Algeria, used to weaken Morocco. Their return was based on the conviction that Sahrawis would be better off under Moroccan sovereignty.


Moreover, the most important point overlooked by the international community is that the sole representative of the Sahrawi since the days of Spanish colonialism are the tribal leaders. The Polisario would not have appeared to the world as the representative of the Sahrawis without having deceived the tribal elders, members of Jamaa (or parliament), established during Spanish colonial rule.


 Mustapha Salma Ould Sidi Mouloud told me in a conversation that the Polisario convinced, on November 28 1975, two weeks after Spain, Morocco and Mauritania signed the Madrid Agreement, all members of the community, consisting of 101 elders, to sign the Keltat Zemmour agreement. Under this document, 67 members of the Jamaa dissolved their entity and set in its place a temporarily national council which gave legitimacy to the Polisario in the first constitutional document it issued.


Mustapha Salma added that after the Polisario deceived the tribal leaders and convinced them to dissolve their Jamaa and turn it from a legislative body into a mock national advisory council. Since the Polisario had taken its legitimacy from tribal elders with deceptive means, the only legitimate representatives of the people are logically the tribal leaders, not the Polisario.


These elements are all overlooked by the international organizations in the debate over the future of conflict. With the inauguration of a new UN Secretary General who is more familiar with the topic of the Sahara and its geostrategic ramifications, Morocco should use these cards and put more pressure on the Polisario. Morocco must convince the international community that this separatist movement is no longer the sole representative of the Sahrawi and that other voices that have been marginalized to so far should be heard.


By Samir Bennis