How a post-Brexit trade deal with Morocco could undermine international law

Morocco desert

After a 29-year ceasefire agreement, war has once again broken out between Morocco and Western Sahara. On November 13, the pro-liberation Polisario Front declared ‘a return to the armed struggle’ after the Moroccan army entered Guerguerat, a demilitarised UN buffer zone at the southern border. Sahrawis have been protesting the formalisation of a Moroccan-built tarmac road that crosses the occupied territory to transport commercial agricultural and fishery products into neighbouring Mauritania and elsewhere in sub-Saharan Africa. 

As a non self-governing territory entitled to self-determination, the people of Western Sahara have a right to access and control their natural resources, according to international and human rights law. But EU-Morocco trade agreements have violated that right, and a post-Brexit continuity agreement threatens to further exploit Western Sahara’s resources and prolong the conflict. 

‘Africa’s Last Colony’ 

Western Sahara is a swath of desert that lies south of Morocco, north of Mauritania and west of Algeria. Its long coastline stretches along the Atlantic Ocean and its indigenous population are known as the Sahrawis. The former Spanish colony is rich in phosphate reserves and off-shore fisheries. When Morocco annexed the territory in 1975, it became the site of brutal conflict with the Sahrawis, who are led by the Polisario Front and backed by Algeria. Morocco claims de facto sovereignty over Western Sahara, which is often referred to as ‘Africa’s Last Colony.’ 

In 1991, the UN established the Mission for the Referendum in Western Sahara (MINURSO) tasked with establishing and maintaining the ceasefire agreement and carrying out a vote to self-determination. However, MINURSO does not incorporate human rights monitoring into its mandate. The referendum has been repeatedly postponed and as a result of the UN’s gross mismanagement of Western Sahara, a number of humanitarian and legal issues have arisen, of which the UK and the EU are deeply implicated. 

Europe’s corporate plunder

In establishing trade relations, there have been two different agreements signed between the EU and the Kingdom of Morocco, namely: the 2000 Association Agreement and the 2007 Partnership Agreement that cover agricultural products and fishery products respectively. The deals allow for a tariff-free two-way trade of industrial products, and a selective liberalisation of trade in agricultural, agro-food and fisheries products “originating from Morocco”, as well as a right to establish businesses and provide services in the other territory. 

But critics have described a “looting” of Western Sahara’s natural resources. In a recent article, scholar Joanna Allen lists several British companies that have drilled for oil on and off-shore, and built on the occupied land. Moreover, supermarket chains including Asda, Aldi, Lidl and Sainsbury may sell tomatoes labelled as ‘Produce of Morocco’ when they are in fact sourced from the Dhakla region in Western Sahara.  The Western Sahara Campaign UK (WSCUK) has raised this issue with the Trading Standards Authority but says they are unwilling to pursue the matter. 

Different and distinct territories

The inclusion of Western Sahara in the geographical scope of the aforementioned trade and partnership agreements has been legally challenged in the Court of Justice of the European Union (CJEU) in 2016 and 2018 on the basis that Morocco was importing products into the EU markets that had originated in Western Sahara. In both cases, the CJEU conceded that Morocco and Western Sahara are two different and distinct territories, and in order for agreements to apply to the former, consent of the Sahrawi people must be obtained and the Polisario Front must be regarded as a third party to the agreement. But in 2019, the European Parliament approved amendments to renew the EU-Morocco association and fisheries agreements to incorporate Western Sahara into its geographical scope. 

Meriem Naili, a PhD candidate at Exeter University, is researching human rights violations in Western Sahara and the rights of its peoples to access and manage natural resources. She argues that the CJEU has ‘tip-toed’ around international and human rights law to favour the political status-quo in the region, which essentially allows the EU to benefit from tax breaks. She believes that the UK government’s post-Brexit continuity agreement, which essentially replicates the current EU-Morocco trade deal, is a violation of international law.

“As it stands, [the terms] do not comply with international law … because Western Sahara and Morocco are two different and distinct territories. You can’t deal with one assuming you can deal with the other,” she said in a phone interview. 

In a recently published paper, Neili discusses the social and legal implications of these two decisions on the wider political and peace process. She argues that the international legal system has failed to adequately respond to the conflict and that the plunder of natural resources in Western Sahara contributes directly to its prolongation. 

Towards a fairer future

It remains unclear whether the Boris Johnson administration will re-evaluate its position on trade with Morocco after Brexit. But activists in the UK are hoping the government will follow in the footsteps of Sweden and Norway, which have already halted all imports and stopped the sale of tomatoes labelled as produce of Morocco and sourced from Western Sahara. The WSCUK has launched an action campaign asking consumers to demand that supermarket chains indicate whether their produce is sourced from Morocco or from Western Sahara.

Neili says that a fairer trade deal would be one that acknowledges Western Sahara’s right to administer its own resources and is established in direct consultation with the Polisario Front to benefit Sahrawi people and facilitate development. But until then, as the region descends into a bloody conflict once more, the Sahrawi people on the front lines will be the ones paying the price.

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