How the European Commission is undermining EU and international law: The case of Western Sahara - Opinion

When legality becomes optional

“What remains of the rule of law,” one might ask, “when the European Commission deliberately circumvents the rulings of its own Court of Justice?”

This is not a theoretical question — it is the current reality of the European Union’s policy toward Western Sahara.

In October 2025, the Commission signed a new trade agreement with Morocco that explicitly covers the territory of Western Sahara — despite four clear rulings by the Court of Justice of the European Union (CJEU) declaring such inclusion unlawful without the free, prior, and informed consent of the Sahrawi people through their legitimate representative, the Polisario Front.

By doing so, the EU’s executive arm has not only contradicted the Union’s legal order but has also undermined one of its most sacred principles: respect for the rule of law.

A legal framework ignored

Since 2016, the CJEU has been remarkably consistent:

Western Sahara and Morocco are “separate and distinct territories”, and Morocco exercises no recognised sovereignty over the territory.

Any EU–Morocco agreement that applies to Western Sahara is, therefore, null and void unless it receives the free, prior, and informed consent of the Sahrawi people through their legitimate representative, the Polisario Front — a principle firmly rooted in international law and in the EU’s own treaties.

Yet, instead of implementing these judgments, the European Commission has chosen to reinterpret them politically, inventing a misleading concept of “consultations” with selected local actors to simulate “consent.”

This manoeuvre is not a legal adaptation — it is institutional defiance of judicial authority.

The message is unmistakable: in the hierarchy of EU institutions, political expediency now overrides judicial independence.

The politics of selective legality

The Commission’s behaviour sets a dangerous precedent for the entire Union.

If the EU’s executive body can ignore binding court rulings in one case, what prevents others from doing the same in future disputes?

Europe cannot demand that its member states uphold judicial independence while it bends its own laws for political convenience.

Behind the diplomatic language lies a deeper truth:

Morocco has turned its relationship with the EU into a mechanism of international legitimisation,

transforming trade, fisheries, and renewable energy agreements into a political instrument to reinforce its administrative control over Western Sahara.

Each new deal signed in Brussels is presented in Rabat’s media as “recognition of sovereignty,”

even though international law and the Court of Justice clearly state otherwise.

By proceeding under these terms, the European Commission risks becoming an enabler of this narrative,

granting indirect legitimacy to a governance system that relies on security control, demographic engineering, and economic dependency to maintain dominance over the Sahrawi population.

From administration to control: Morocco’s strategy in Western Sahara

Within the territory under Morocco’s de facto control,

an intricate structure of security oversight and economic dependency has been established.

Military checkpoints, intelligence surveillance, and administrative restrictions regulate every aspect of Sahrawi civic life.

Dozens of Sahrawi activists remain detained under questionable charges and unfair trials, often facing intimidation and mistreatment.

At the same time, economic dependency is deliberately used as a tool of control:

Jobs, permits, and financial incentives are granted primarily to Moroccan settlers and businessmen,

and to a small number of Sahrawis who remain silent or cooperate in exchange for roles that serve Morocco’s narrative on the Sahrawi question.

Meanwhile, the vast majority of the Sahrawi population is excluded from meaningful economic participation and local decision-making.

Through this system, Morocco has turned the economy into an instrument of political and social domination,

where loyalty is rewarded and dissent is penalised.

What makes this reality even more alarming is that the European Commission has now become an active partner in this system.

By providing political and institutional support, it is helping Morocco evade the implementation of international legality and EU law,

thus enabling a governance model that systematically marginalises the Sahrawi people.

In doing so, the Commission is no longer a guardian of legality — it has become an actor in its erosion.

From law to morality

Europe’s institutions were built on the belief that legality and morality must coexist.

When the Commission chooses to bypass the Court’s decisions, it betrays not only the Sahrawi people but also the European citizens whose democratic legitimacy depends on trust in the rule of law.

The irony is stark: Europe promotes legality in Ukraine, in Palestine, and in Sudan,

yet tolerates a territorial exception in Western Sahara — the last unresolved decolonisation case in Africa.

How can the EU advocate for a “rules-based international order” while compromising its own legal integrity at home?

A crisis of credibility

By aligning with Morocco’s interpretation of “development,”

The European Commission has become an institutional partner in every violation occurring within the territory.

It is not merely ignoring the Court’s rulings — it is actively assisting Morocco in evading the implementation of international and European law,

thereby becoming complicit in the continued erosion of the Sahrawi people’s rights.

What makes this situation even more troubling is that Morocco has not only undermined legality in Western Sahara but has also managed to infiltrate parts of Europe’s own democratic system.

Through financial influence, lobbying, and the buying of political and media loyalty,

Rabat has built networks of influence within European institutions — a phenomenon exposed by scandals such as Qatargate and Moroccogate.

Despite this erosion of trust in European democracy, Morocco is today rewarded with a new, rushed, and opaque agreement,

as if the European Union were punishing its own judiciary while compensating those who defied it.

The moral and political imperative

Europe’s credibility begins — or ends — in Western Sahara.

The European Parliament, member states, and civil society must now decide whether the rule of law is a universal principle or a flexible political tool.

If the CJEU’s rulings continue to be ignored, then the very foundation of the European Union — legality, equality, and human rights — loses meaning.

The Sahrawi people have waited for five decades, believing in Europe’s conscience and its courts.

They have remained peaceful, disciplined, and faithful to the law.

If Europe chooses silence now, it will not only betray the Sahrawis — it will betray itself.

The opinions and thoughts expressed in this article reflect only the author's views.

Med Elbaikam is a human rights advocate and independent Sahrawi activist based in Europe.