30 November 2018, the Court of Justice of the European Union, declared for the fourth time that Morocco has no sovereignty over Western Sahara - this time in a ruling over the new EU-Morocco Aviation Agreement that entered into force earlier this year.
The judgment specifies that the territory of Morocco must be understood as "referring to the geographical area over which the Kingdom of Morocco exercises the full range of powers recognized to sovereign entities by international law, to the exclusion of any other territory such as that of Western Sahara". The Court adds that including Western Sahara infringes on the rules of international law that apply to the relations between the EU and Morocco, "notably the principle of self-determination referred to in Article 1 of the United Nations Charter and the principle of the relative effect of the treaties" (art. 27). "The European Union cannot validly share an intention of the Kingdom of Morocco to include the territory in question in the area of application of the Agreement" (art. 33).
The Court recognizes that Polisario could lodge the complaint, as it is individually concerned “only if the Agreement on airline services is applicable to the territory of Western Sahara” (art 25-26).
Remarkably, the EU Council has stated to the Court, as noted in paragraph 18, “that the air service agreement does not apply to the territory of Western Sahara” – thereby dropping the EU Commission as the only EU institution defending including Western Sahara, which it had done publicly to the European Parliament in October 2017.
The agreement has been important to challenge for the Saharawis, as Morocco is normalizing its illegal presence in the territory through business ties and tourism. Morocco has particularly tried to brand the town of Dakhla as a haven for kite surfing, setting up international flight connections. Flights from Dakhla are also used to transport frozen fish from the occupied territory into Spain.
“Airlines such as Transavia, Binter or Royal Air Maroc no longer have any legal support to carry out flights between El Aaiun or Dakhla and the European Union”, says Polisario’s representative to the UN Mission for Western Sahara, Mr Mhamed Khadad, adding that the judgment “has a much broader scope”. “No international agreement is applicable to the airspace of Western Sahara, and no authority can make decisions to give legal security to the planes who would like to transit in the territory”.
Spanish Member of the European Parliament Florent Marcellesi (Greens/EFA) reacted to the news this morning. "I welcome yet another major victory for the Saharawi people at the EU court and another shameful dressing down of the Commission by the highest EU jurisdiction. As had been repeatedly denounced by the Greens group in the European Parliament, the application of the EU Morocco aviation agreement to occupied Western Sahara was illegal. This has immediate consequences for EU carriers and EU passengers, notably from the Canary Islands who are without legal basis for flying to, from and over Western Sahara. This reckless behavior from Commission has put EU lives at risk. Greens will immediately seize the Commission for clarification of the consequences of this ruling. We also hope that this will finally wake up the Commission to the illegality of its proposed fisheries and agriculture agreements that it is trying to force though in parliament but will also face the same fate in Court, if adopted. How many more defeats in Court for the EU to finally understand that law matters, also in the conduct of external relations?"
On 24 April this year, Polisario initiated a case to halt the application of the agreement in Western Sahara, arguing that the concluding parties, Morocco and the EU, are not competent to conclude such an agreement covering the territory.
On 16 May 2018, the Commission stated in the European Parliament that it is "currently examining if recent jurisprudence of the European Court of Justice has any implications for the Euro Mediterranean Aviation Agreement".
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Morocco occupies the major part of its neighbouring country, Western Sahara. Entering into business deals with Moroccan companies or authorities in the occupied territories gives an impression of political legitimacy to the occupation. It also gives job opportunities to Moroccan settlers and income to the Moroccan government. Western Sahara Resource Watch demands foreign companies leave Western Sahara until a solution to the conflict is found.
It's not easy keeping up with all the different legal proceedings relating to Western Sahara. For the sake of clarity, here's an overview of the five different cases at the Court of Justice of the European Union.