Trade agreements with occupying powers : A case study of the EU external action in Western Sahara from a social justice perspective

Abstract: For the past 20 years, the European Union has extended its political cooperation and bilateral trade agreements with Morocco, while not taking a clear stance against the occupation of Western Sahara. Bound by EU law as well as principles of human rights and international law, the institutions of the EU are obligated to respect human rights in the EU external action. This includes the right to self-determination, a customary principle of international law. In two rulings, the Court of Justice of the European Union has concluded that agreements between the EU and Morocco do not apply to Western Sahara. But since then, two new agreements have been concluded whose respective scope include the territory and the waters of Western Sahara. Yet, the people of Western Sahara are not party to any of the agreements which authorises the exploitation of its natural resources. Drawing upon this context, this thesis examines the human rights aspect of the EU’s international agreements using a set of different research methods. The research question, if and how the EU’s external action affecting Western Sahara complies with EU law, is answered through a doctrinal analysis of the human rights clause of three separate agreements between the EU and Morocco, and the relevant case law of the Court. The conclusions are discussed in a following extrajudicial assessment based on Nancy Fraser’s critical theory of social justice.  The thesis finds that the EU external action as manifested in the three agreements with Morocco, by including the territory of Western Sahara, does not comply with EU law. Further, the analysis discovers that the lack of coherence between the institutions creates a fragmented external policy, whose legal basis and objectives in regard to respect for human rights is not reflected in its implementation. The discussion discovers that the EU fails to recognise the people in Western Sahara as equal subjects of social justice by upholding an unjust political frame. This framing maintains the status quo and obstructs the people’s claims for redistribution, recognition and political representation. The thesis therefore concludes that the EU should change its policy regarding Western Sahara, and align with the guiding principles for the external action stated in the treaties (Article 21 TEU). The thesis suggests that the EU adopts a comprehensive critical democratic and inclusive approach, in order to improve its institutional framework for how international agreements are negotiated, implemented and monitored in occupied territories.