EJIL Talk, 16 October 2025
by Andrea Maria Pelliconi and Sebastian von Massow
How not to trade with occupying powers: Western Sahara and the amendment to the EU-Moroccan association agreements
On October 3 2025, the EU and Morocco concluded an amendment (‘the amendment’) to the EU-Mediterranean Agreement (‘the association agreement’). With the approval of the Council it is already being applied provisionally pending entry into force. Its purpose is to enable the continued granting of tariff preferences to products originating in occupied Western Sahara. This non-self-governing territory has been under Moroccan occupation since 1975. Its people, the Saharawi, hold the right to self-determination (Western Sahara Advisory Opinion, para 70). The Moroccan invasion forced a large portion of the Saharawi to flee across the border to Algeria, where they have lived in refugee camps ever since.
Beginning in 2012, the Front Polisario, in its role as Saharawi national liberation movement and UN-recognised representative of the people, has sought to challenge the legality of EU-Moroccan trade agreements applied to the occupied territories (discussed on this blog here, here, here, here, here, and here). In 2024, the CJEU annulled a Council Decision extending existing trade agreements to Western Sahara and set out the conditions under which such an extension would be lawful (discussed in detail here and here).
This week’s latest renegotiation seeks to bring the current association agreement in line with the CJEU’s conditions. The rushed and surreptitous circumstances of its conclusion have already drawn strident criticism from the European Parliament’s Committee on International Trade, which was not informed of the Commission’s intention to request provisional application and raised doubts about the Commission’s stated timeline (see in particular comments of the Chair and the Rapporteur for the Maghreb Region, 19:55:52–19:59:29). The problems with the 2024 judgment have already been pointed out by commentators, who raise doubts over its conformity with well-established international law (here and here). We will turn instead to consider whether the Commission’s renegotiation meets the CJEU’s conditions on their own terms.
The conditions formulated by the CJEU
Under the CJEU’s current jurisprudence, a trade agreement applying to occupied Western Sahara will be lawful provided that it is concluded with the consent of the Saharawi people (C-104/16 P, para 106) and products originating from the occupied territory are labelled as such (C-399/22, para 89). The Council does not have discretion to waive the requirement of consent (joined cases C-779/21 P and C-799/21 P, para 135). But consent can be presumed if the agreement satisfies the following cumulative conditions:
- it does not give rise to an obligation for the Saharawi;
- and provides that the people of the territory receive a benefit from the exploitation of that territory’s natural resources which is
- a) specific, tangible, substantial and verifiable;
- b) proportional to the exploitation;
- c) accompanied by guarantees that exploitation will be in conformity with the principle of sustainable development;
- d) and provides for a regular control mechanism to verify whether the benefit is in fact received by the people. (C-779/21 P and C-799/21 P, para 153)
The CJEU also clarified that the ‘people’ that should receive the benefit (i.e. the Saharawi) are not to be equated with the ‘population’ on the territory (which includes Moroccans living in Western Sahara). In addition, the ‘people’ includes all Sahrawi regardless where they live: in occupied Western Sahara, the territories controlled by the Polisario, the refugee camps in Algeria, or the diaspora.
The amendment and the EU’s unilateral declaration
The amendment adds primarily two things. It requires products originating in occupied Western Sahara to bear labels stating their origin and introduces a joint assessment by the EU and Morocco, to be conducted at least once a year, in particular concerning sustainable development, advantages stemming from the agreement, and the exploitation of natural resources (specific arrangements to be determined at a later date). The origin labels foreseen are: ‘Dakhla Oued Ed-Dahab’ or ‘Laâyoune-Sakia El Hamra’.
In a separate unilateral declaration, the EU states that it will provide funding for the region, increase its humanitarian aid to the Algerian refugee camps, and support suitable programmes in sectors such as education. This is done expressly to provide benefits in line with the CJEU’s jurisprudence. The declaration envisions the establishment of a regular control mechanism, mirroring the CJEU’s language above concerning the verification of benefits.
Compliance with the CJEU’s conditions
As concerns labelling, while the amendment foresees origin labelling, it does so according to Morrocco’s administrative designations ‘Laâyoune-Sakia El Hamra’ and ‘Dakhla-Oued Eddahab’, rather than referring to ‘Western Sahara’. Nor does it include a clarification such as ‘Moroccan settlement’, as was deemed necessary in the case of goods from Israeli settlements in the Occupied Palestinian Territory (C-363/18, para 57). This is liable to mislead consumers as to the place of provenance, does not enable an informed ethical decision, and if anything, only reinforces the Moroccan position.
The Commission made no attempt to seek Saharawi consent. It sought rather to satisfy the requirements for presumed consent. It does not meet them.
First, the benefits from trade do not accrue to the Saharawi as a whole. They are felt only on the occupied territory where economic activities are conducted, and then predominantly by the majority-Moroccan population living there. Due to long-lasting government-sponsored settlement policies, the Sahrawi now constitute a minority in Western Sahara. UN bodies, special mandate holders, and rights groups have consistently denounced Morocco’s practices of systematic discrimination and marginalisation against the Sahrawi. Under these conditions it is highly doubtful that trade benefits will go to the Saharawi. And the amendment itself does not foresee a concrete control mechanism: the joint assessment refers vaguely to ‘advantages stemming’ from the agreement and makes no reference to verifying benefit to the Saharawi.
Second, the only benefit that verifiably accrues directly to the Saharawi is humanitarian aid to the camps, which does not arise out of the agreement. It arises out of the EU’s separate declaration. This declaration arguably does not form part of the agreement: only the exchange of letters—governing trade preferences, labelling, and joint assessment—concerns the EU and Morocco together (the declaration on humanitarian aid is given only by the EU). The exchange of letters and the declaration are approved by the Council Decision in separate articles; only Article 1 refers to the ‘conclusion of the Agreement’, whereas Article 2 concerns the declaration made ‘when signing the Agreement’. That the declaration is intended to be distinct from the agreement is also in keeping with the context of its conclusion. Morocco considers Western Sahara to form part of its sovereign territory, recognises neither the Saharawi people nor its right to self-determination, and has consistently intervened in CJEU proceedings to prevent the Saharawi from asserting their right to self-determination.
Third, regardless of its inclusion within the agreement, humanitarian aid is not a benefit within the CJEU’s meaning. The purpose of the benefit requirement, as the CJEU explains, is to ensure that any agreement
adequately preserves the right of the people in question to self-determination or the permanent sovereignty over natural resources which derives from that right. (para 156)
This is reflected in the formulation, ‘benefit from the exploitation of that territory’s natural resources’ (para 153). If benefits are to preserve the right to permanent sovereignty over natural resources (PSNR), they must accrue directly from the exploitation of those very natural resources. Humanitarian initiatives in favour of displaced refugees cannot be construed as a direct consequence of the exploitation of Western Sahara’s natural resources. An aid commitment made to a people ‘when signing’ a trade agreement with the occupying power exploiting that people’s resources is not the same as a benefit accruing directly to the people from the exploitation of their resources. One is the attempt to give expression to the right to PSNR. The other is at best scant compensation for its violation.
This point is important. The natural resources on a non-self-governing territory form a part of the people’s fledgling sovereignty. In the words of Judge Weeramantry in the East Timor Case, the ‘wisdom underlying’ PSNR is that for any people, sovereignty over their economic resources is ‘an important component of the totality of their sovereignty’ and that for ‘a fledgling nation, this is particularly so’ (pp 197-8). The exploitation of Western Saharan natural resources without Saharawi consent is the erosion of the Saharawis’ fledgling sovereignty.
In fact, the trade agreement itself risks entrenching and legitimising an unlawful occupation that is inherently incompatible with the Sahrawi people’s right to self-determination. Since 2003, Morocco has halted plans for a referendum in Western Sahara and denied any meaningful prospects for Sahrawi governance over their land and natural resources. It is difficult to imagine that limited humanitarian aid or marginal socio-economic benefits for a small segment of the labour force can proportionally outweigh the five-decade-long denial of the Sahrawi people’s access to and control over their own resources.
Finally, it is debatable whether the agreement itself provides for a regular control mechanism. According to the CJEU, the purpose of the control mechanism is to verify ‘whether the benefit granted to the people in question under that agreement is in fact received by that people’ (para 153). The mechanism provided for under the agreement (the annual joint assessment) is directed to sustainable development, advantages, and resource exploitation—not to whether the Saharawi receive benefits.
Even if the mechanism were intended to verify the distribution of benefits, it is doubtful that it would prove effective. Since 2015, Morocco has consistently denied access to Western Sahara for UN bodies and independent monitoring mechanisms, including the Office of the UN High Commissioner for Human Rights and the UN Mission for the Referendum in Western Sahara (MINURSO). It would already be difficult for an EU-led mechanism to gain free and independent access to the region without the risk of being co-opted by Moroccan authorities. A mechanism that envisions Morocco’s direct involvement in both implementation and reporting is inherently prone to producing biased and unreliable results.
Outlook
The Front Polisario is certain to seek the annullment of the Council Decision concluding the amendment. This litigation is likely to turn on the following key questions.
First, concerning the presumption of consent, the CJEU will have to address the question of whether humanitarian aid constitutes a proportional benefit accruing to the Saharawi people as a whole from the exploitation of their natural resources—and whether the benefits that accrue to the majority-Moroccon population on the occupied territories through trade nevertheless constitute a significant and verifiabe benefit to the Saharawi people. As we argue above, neither does.
Second, assuming the Council and the Commission succeed in establishing the presumption of consent, a central question will then be whether the Front Polisario is a ‘legitimate representative’ of the Saharawi people for the purposes of calling in question the existence of presumed consent (as distinct from the question of representation for the purposes of legal standing). The CJEU will likely try to move in the spaces between ‘UN-recognised representative’ (A/RES/34/37 para 7), ‘the legitimate representative’, ‘a legitimate representative’ and ‘privileged interlocutor’ (C-779/21 P para 89). As argued elsewhere, these distinctions are specious and the CJEU should treat the Front Polisario as the representative of the Saharawi in conformity with established international institutional practice and scholarship.
Third, if the Polisario succeed on this point, the key challenge will be establishing that the benefits do not satisfy the court’s conditions. In this regard, the CJEU’s 2024 judgment reversed the burden of proof. This creates substantial evidentiary problems for the Polisario’s lawyers: materials concerning the application and effects of the treaties on the occupied territory will be in the hands of the Moroccan authorities that apply the trade agreements and have no incentive to cooperate.
And the occupation continues
The upshot of the EU’s policy in practice is to provide economic sustenance and symbolic legitimacy to a situation that is widely regarded as unlawful under international law: Morocco’s occupation of Western Sahara. Tucked away in the EU’s unilateral declaration is the promise of desalination facilities—an investment that will enable the further expansion of Moroccan agriculture in Western Sahara and further entrench the occupation. A recent expert opinion on the ICJ’s Advisory Opinion on Policies and Practices of Israel in the Occupied Palestinian Territory urged the EU institutions to conduct a full-scale reassessment of its policies towards Israel to bring them in conformity with its obligations not to recognise, aid or assist the maintenance of Israel’s unlawful occupation. If the EU takes seriously its duty in Article 3(5) TEU to promote the strict observance and development of international law, it would do well to do the same concerning its dealings with Morrocco. The amendment has yet to receive the European Parliament’s approval—if the Committee on International Trade is anything to go by, the amendment’s passage may yet be a bumpy one.
