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Western Sahara, Morocco, and the EU: Did the CJEU Get it Wrong? A Commentary of Advocate-General Wathelet's Opinion and the CJEU Decision in the Western Sahara Campaign UK Case

Abstract: The legal battle between Morocco's influence in Europe and the Front Polisario has persisted throughout most of the European Union's (EU) existence. At the battle's forefront lies the role of international law inside the EU's complex constitutional and institutional frameworks. In the latest legal proceedings, the Court of Justice of the European Union (CJEU) rendered its decision in the contested Western Sahara Campaign United Kingdom case. The decision did not assist in resolving the EU's legal position with respect to the Morocco-Western Sahara dispute. On one side, Advocate-General Wathelet's substantive opinion applied international law to the EU's role in the Western Sahara-Morocco conflict stricto sensu. On the other side, a rather short CJEU decision reaffirmed the status quo; that EU-Morocco treaties do not apply to the territory of Western Sahara. This commentary analyses and contrasts the CJEU decision and Advocate-General Wathelet's opinion against the EU's Völkerrechtsfreundlichkeit policy. Furthermore, this commentary suggests that the CJEU cannot be held responsible for implementing international law within the EU's external trade framework, as that responsibility – and any consequences from its failure – fall generally to EU institutions, which have thus far refused to follow Völkerrechtsfreundlichkeit as expected.