Rabat’s persistence on using traditional diplomatic avenues to address a judicial conundrum led to its recent stumble in Brussels. The European Court of Justice (ECJ) Ruling against Morocco excluding waters off the coast of “Western Sahara” from fisheries agreements between Morocco and the EU should not come as a surprise.
Since the International Court of Justice issued an unfavorable advisory opinion against the Kingdom in 1975 and the United Nations does not recognize the territory as Moroccan, the chance of any court ruling in favoring Morocco is slim to none.
In fact, Morocco is in need of a framework to challenge past adverse legal opinions and channel its momentum toward finding a synergy that would bond its diplomacy to a legal doctrine that would amplify the Moroccan positions in Western Sahara.
Despite Algeria and its proxy the Polisario Front’s claims that this court decision is a victory for their position in this conflict, the ruling has no impact on the diplomatic and political standings of the United Nations and its mission to the Western Sahara. However, this upset is yet another wakeup call for the Moroccan government to spend energy and resources to explain the legal aspects of the Sahara conflict.
By focusing on the diplomatic channels to respond to a court ruling, Moroccan diplomats are wasting time and resource again. This the second time the ECJ ruled against Morocco and thus it is obvious that Rabat’s approach to the problem is a flaw. It is also worth understanding that no amount of money or diplomatic weight would make the European Court rule for Morocco.
The issue is legal and not political. Most European governments favor economic agreements with Morocco that include the so-called “Western Sahara” even if it means an EU de facto recognition of the territory as Moroccan.
Nonetheless, in nations of the rule of law, courts have the power to overrule policies and politics. Hence, Morocco should go back to court to defend its rights and entitlement to its historic land.
Political and diplomatic pressures on European governments will produce scant results in this case. Morocco can either go back to the international court to re-open the case since it was non-binding rulings or peruse new judiciary venues to give its presence in the Western Sahara a legitimate shell and consequently provide friendly European governments with a legal cover to plead its case.
Moroccan foreign affairs officials cannot keep trying the same failed approach and hope for different results. The fight is in the ICJ and the United Nations and not Paris, Madrid or Stockholm. European Courts will continue their anti-Moroccan ruling as long as there is no change to the UN position on the Western Sahara. Therefore, Morocco should accept this reality in Brussels and adopt new economic and trade postures at the EU.
The nullification of the Fisheries Agreement between the two sides is a financial loss to some European nations, especially Spain, but not to Morocco that can easily invite more Japanese, Russian or Chinese boats to fish off its costs including the Sahara.
This ECJ ruling is neither a diplomatic breakthrough nor a police event. It is simply a restatement of a 43 years old edict that has been thus far ignored by most governments and never adopted by international organizations.
By Hassan Masiky.