The EU has in recent weeks provisionally approved a contentious agreement with
Morocco that extends EU-Moroccan fisheries treaties into the territory of
Moroccan-occupied Western Sahara. The deal both applies beyond Morocco’s
recognized sovereign territory into occupied territory, and further, actually
pays Morocco for access to the Western Saharan fishery.
On all these
points, the agreement directly contradicts what the EU has called fundamental
principles of international law in its dealings with Israel. Indeed, the EU has
been negotiating this agreement with Morocco even as it imposes on Israel
unprecedented funding guidelines that say the exact opposite.
Morocco invaded Western Sahara in 1975 and has occupied it since claiming it as
its own territory.
No nation in the world recognizes this claim, and the
United Nations Security Council has demanded that Morocco completely
Morocco has engaged in an aggressive settlement policy, as a
result of which settlers may now be the majority in the territory.
also does not recognize Western Sahara as part of Morocco, but this has not
stopped it from extending its agreements with Morocco to cover Israel. The
Fronte Polisario is the generally recognized representative of the indigenous
people (Sawahari), and Western Sahara has been recognized as a nation by 40
This is not the first such agreement with Morocco to apply to
its occupied territory. However, the arrangement was criticized by several EU
members, and there was some chance that it would not be implemented in the
Differences with Israeli agreements
Scope. The fisheries agreement applies not just to the “territory” of Morocco,
but to all areas under its “jurisdiction,” which is understood to include
Western Sahara. In agreements with Israel, however, the EU has only applied it
to the “territory” of Israel, which is understood to exclude the West Bank, as
well as Jerusalem.
The new Funding Guidelines go further and exclude
entities with operations in the territories.
The guidelines claim that
their approach is required by “international law” to avoid recognizing Israel
sovereignty over the territories. The Moroccan case proves this concern false
2) Funding. The EU says that its “tax dollars” cannot be
spent in occupied territory. Yet it pays Morocco specifically to exploit the
scarce resources of occupied territory, against the wishes of its political
representatives. This is much more severe than awarding science grants or prizes
for, say, archaeological research in the Golan.
THE EU Parliament’s
formal legal opinion contradicts position on Israel The agreement was adopted
despite massive opposition from the political representatives of the Western
Saharan people, as well as some European nations. As a result of the
controversy, the European Parliament obtained an opinion from its legal
The official opinion, in brief, says international law does not
prevent Morocco from exploiting the natural resources of the occupied territory,
let alone merely doing business there. Despite the complete opposition of the
Sawahari leadership, the incidental economic benefits of “development” (which
the Sawahari deny exists) can be considered sufficient to satisfy Morocco’s
obligation to them. Moreover, the opinion says it is legal for the EU to pay
Morocco to exploit the resources of occupied territory.
Of course, the
inconsistency between the treatment of Morocco and Israel does not in itself
demonstrate which is correct. However, the position regarding Western Sahara is
consistent with all prior international law, including a 2002 opinion by the
Security Council’s legal adviser, and a ruling of the French Court of Appeals
this summer in the Alstom case, as well as the practice of all other nations,
and the EU’s own practice in other occupied territories. The EU is right about
Western Sahara – which means it is wrong about Israel.
positions adopted by the EU in its negotiations with Israel over grants and
product labeling are inconsistent with those it has taken at the same time in
its dealings with Morocco. While the EU does not recognize Israel’s control over
the territories, and opposes it, the same is true of its policy toward Morocco
in Western Sahara. Yet this policy does not require, nor does international law,
the punitive measures adopted toward Israel.
In particular, the EU has
used entirely fabricated international law claims in its dealing with Israel,
claims contradicted by its own practice and official legal advice.
would better advance its policies regarding the West Bank by treating Israel
consistently with international law. Perversely, the EU’s treatment of Morocco
only encourages Israel to conduct more economic activity in the territories. The
EU has been under strong pressure to sign the deal with Morocco because of
Spanish and French interests in the fish in the occupied territory. They simply
did not want to lose an economic opportunity.
The message this sends to
Israel is that it may have not enough business in the territories, rather than
too much, and that it should locate more crucial projects in the defense and
technology sector in the territories.
The author is a professor at
Northwestern University School of Law, Lady Davis Visiting Professor at the
Hebrew University, a Senior Fellow at the Kohelet Policy Forum and a Fellow of
the Legal Forum for Israel.