The Madrid Accords of 14 November 1975 ended the Spanish colonization of Western Sahara, sparkling a long conflict which, since then, opposes the Kingdom of Morocco to the Popular Front for the Liberation of Saguia el Hamra and Rio de Oro (Polisario Front). 42 years later, Western Sahara remains, according to the international law, a non-self-governing territory whose de jure administering power is still Spain. De facto, around 80% of the territory has been annexed by Morocco, whereas the remaining 20% is under the control of the Polisario Front. Much has been written on the conflict of Western Sahara, but the literature tends to overlook the role of the European Union (EU), an actor with high stakes in the conflict and considerable leverage on the conflicting parties.
The EU's foreign policy vis-à-vis the conflict in Western Sahara
Brussels’s role in Western Sahara has been traditionally extremely limited, with the EU refraining from taking an active role in the facilitation of the conflict resolution. However, this political disengagement cannot be associated to a low level of EU’s ‘presence’ in Western Sahara. In fact, the Union boasts a high degree of leverage on both the conflicting parties, notably Morocco, in light of Rabat’s heavy economic dependence on Brussels and its ambition to pursue a close integration with the EU, and the Polisario Front, considering that the EU is the largest humanitarian donor to the Tindouf refugee camps. Rather, the EU suffers from ‘capability’ problems, stemming mostly from the profound divergences existing among the member states and institutions, which tightly constrain its ability to capitalize on its presence in Western Sahara. Undeniably, the conflict in Western Sahara represents a divisive issue for the EU member states, with France and, to some extent, Spain adopting a rather pro-Moroccan position within the Council of the EU (Council) and, on the other side, a group of countries, mostly Northern Europeans, being more sensitive to the Sahrawi claims.
This cleavage paralyses the Council, which cannot resort to the instruments of the Common Foreign and Security Policy (CFSP) available to it according to the Treaties. In fact, the intergovernmental nature of the CFSP and its decision-making based on unanimity implies that, in presence of factional divisions within the Council, the only option is resorting to the ‘minimum common denominator’ among the different positions of the member states. In the case of Western Sahara, this denominator consists of a mere declaratory reiteration of the EU’s support to the UN-led process, which thus becomes the only viable option for the Council. Apart from this, the Council remains silent on the issue of Western Sahara and, contrary to the cases of other conflicts in the EU neighborhood, does not take decisions nor does it issue conclusions (Council Conclusions). Moreover, the European External Action Service (EEAS) seldom issues statements on the situation in Western Sahara nor she has appointed a Special Representative for Western Sahara.
The only significant role played by the EU in Western Sahara is limited to humanitarian action. The Commission addresses the humanitarian dimension of the conflict through the action of DG ECHO, which provides humanitarian aid to the Sahrawi refugees living in the camps of Tindouf. Since 1993, the Commission has allocated a total of € 222 million, with an annual funding which amounts to € 9-10 million, focusing mainly on food and water aid. While the activity of DG ECHO in Tindouf could be certainly seen in light of the normative dimension of the EU external action, the EU’s involvement in this field could also be viewed as a way to amend for the lack of political engagement in the conflict resolution process. From this perspective, the humanitarian policy of the EU in Tindouf does not encourage any significant alteration of the status quo in Western Sahara, since it deals with a side-effect of the conflict, namely the refugee crisis, without addressing the root causes of the conflict itself.
The cost of “non-Maghreb” for the EU
The conflict in Western Sahara has clearly handicapped every attempt of achieving regional integration in the Maghreb, including the effort of creating an Arab Maghreb Union (AMU), launched in 1989. In fact, the strained relations between Morocco and Algeria, the latter being the main supporter of the Polisario Front, have paralysed the AMU and still represent the main obstacle to a real process of integration in the Maghreb region. In this context, the cost of non-Maghreb is very high not only for the Maghreb region itself, but also for the EU. As stated by EU institutions, “The benefits of closer integration in the Maghreb would be enjoyed not only by the citizens of the five countries concerned. They would also be shared with their neighbours including the European Union”.
The lack of regional integration in the Maghreb has negative implications on one of the backbones of the EU’s foreign policy, namely the stabilization of its southern neighbourhood. Indirectly, it affects the EU insofar it has a negative impact on the south-south integration, which in turn hampers one of the main long-term strategic objectives of the EU’s external action since the Barcelona Declaration of 1995 – the creation of a stable, prosperous and peaceful Euro-Mediterranean area. More directly, the cost of “non-Maghreb” represents a stumbling block to intra-Maghreb security coordination, affecting negatively the European fight against criminality and terrorism in North Africa. Finally, the lack of integration in the Maghreb does not allow the region to fulfil its economic potential, boosting the illegal migration towards Europe. Nevertheless, very little is done by the EU in this direction, although it would be in the clear interest of the Union to facilitate the Western Sahara conflict resolution, as a pre-condition for the unlocking of the inter-Maghreb cooperation.
A 'legal storm' in the EU
Since December 2015, the Western Sahara issue has been at the centre of a “legal storm” within the EU. The contested subject-matter is the Council Decision 2012/497/EU of 8 March 2012, on the conclusion of an agreement between the EU and Morocco concerning reciprocal liberalization measures on agricultural and fishery products, as well as the replacement of protocols and amendments to the EU-Morocco Association Agreement of 2000. While the judgment of the General Court of 10 November 2015 annulled the 2012 Council Decision, the judgment of the ECJ of 21 December 2016 stated that the Decision in question, as well as the Association Agreement of 2000, are valid but do not apply to Western Sahara. The two judgments triggered Morocco’s strong reaction vis-à-vis the EU. Since December 2015, Rabat has stopped the political dialogue with the EU in ‘retaliation’ for the judgment of the Court: no meetings of the sub-committees in the framework of the European Neighbourhood Policy (ENP) have taken place, nor have discussions over a new ENP Action Plan been held.
The judgments pushed Brussels into a difficult situation, which risks further compromising the already strained EU-Morocco relations. Evidently, the choice of the Union to refrain from playing a more active role in the facilitation of the Western Sahara conflict resolution did not pay off in the long run, as the EU is currently faced with serious legal and political challenges. In this context, while the ECJ judgment is binding, it is up to the Union to find a way to comply with it. Currently, the Commission, the EEAS (European External Action Service) and the Council are exploring possible ways to overcome the legal impasse, and high level contacts on the issue are ongoing with the Moroccan counterparts. Nonetheless, the room for manoeuvre seems to be very narrow: either the EU suspends all imports from and exports to Western Sahara, or it finds a way to seek the consent of the Sahrawi population, which is the necessary condition to apply an EU-Morocco agreement to Western Sahara. The second option, however, is extremely risky and is politically sensitive, as it is not clear how the consent of the Sahrawis could be sought circumventing the Polisario Front. What is certain is that, willing or not, the EU can no longer ignore the consequences of the stalemate in Western Sahara. In this regard, the legal storm the EU currently faces is a further demonstration that the Union has a strategic interest in the resolution of the Western Sahara conflict, and that, consequently, it should take a more active role in its facilitation.
Luca Venchiarutti, College of Europe
Image: Sahrawi Fighters with the Polisario Front, Western Sahara 1980
 European Commission, High Representative of the European Union for Foreign Affairs and Security Policy, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions “Supporting closer cooperation and regional integration in the Maghreb: Algeria, Libya, Mauritania, Morocco and Tunisia”, JOIN (2012) 36 final, Brussels, 17.12.2012