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The EU manages the economic integration with its eastern and southern neighbors through what is called the European Neighborhood Policy. According to the EU, this policy builds on “common interests and on values — democracy, the rule of law, respect for human rights, and social cohesion.”
The legal basis for the relations between the EU and Israel and Morocco, respectively, are further stipulated in what’s called association agreements, which entered into force with both countries in 2000. Using slightly differing formulations article 2 of both documents underline that respect for democratic principles and human rights constitute an essential part of the agreements. In signing other bilateral treaties, such as the fisheries agreement between the EU and Morocco (giving European fishing vessels access to Moroccan waters) the EU Commission again underlined the importance of the respect for human rights and international law. “A human rights clause is included in the Protocol and, as with all of the EU's agreements, an in-built suspension mechanism ensures that the EU can unilaterally suspend the protocol in case of human rights violations.”
To pick one recent example, in its report Occupation, Inc. (published in January) Human Rights Watch argues that “the context of human rights abuse to which [Israeli] settlement business activity contributes is so pervasive and severe that businesses should cease carrying out activities inside or for the benefit of settlements, such as building housing units or infrastructure, or providing waste removal and landfill services. They should also stop financing, administering, trading with or otherwise supporting settlements or settlement-related activities and infrastructure.”
Both Morocco and Israel are occupying powers that have systematically violated the fundamental human rights of those under their occupation. This includes the right of self-determination, which the international community as a whole has a responsible to uphold. Looking at the human rights records of Morocco and Israel, one begins to wonder whether the EU has any intention of enforcing its “human rights clause”?
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Besides the provisions of the bilateral agreements, there are overriding principles of international law that relate directly to EU’s relations with Morocco and Israel because of the severity of the crimes involved. In cases of serious breaches of international law, all states have a legal obligation not to recognize or render aid or assistance in maintaining the illegal situation.
After the Russian annexation of Crimea, the EU recognized this and prohibited “the import of goods originating in Crimea or Sevastopol into the European Union.” Describing the reasons for its decision, the Council noted that it “is part of the EU's non-recognition policy regarding the illegal annexation of Crimea following the European Council of 20/21 March, which condemned the illegal annexation of Crimea and Sevastopol and stated that it will not recognise it.”
The EU, however, does conduct trade with illegal Israeli settlements. Paying attention to this trade is far from an exercise in pedantry, since it contributes to sustaining Israel’s settlement enterprise. The EU has taken some steps to implement its responsibilities by, for instance, issuing guidelines on the labelling of settlement products and excluding the occupied Palestinian territories (oPt) from its bilateral treaties with Israel. But as noted in a recent letter by prominent legal authorities, such as John Dugard and Richard Falk, directed to EU policy makers, these steps are “wholly inadequate”. They argue instead that “The only legally correct measure is to rectify the error in international trade relations by withholding from trading with settlements. Trading with settlements constitutes implicit recognition and is a violation of international law.” Indeed, as the EU recognized in the case of the annexation of Crimea. “We ask no more than consistency in the application of the European Union’s non-recognition policy”, the letter concludes.
While the cases of Morocco and Israel are similar, in at least one respect, the EU’s policy towards occupied Western Sahara is much worse. The EU has expressed its “commitment to ensure that - in line with international law - all agreements between the State of Israel and the EU must unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967.” But there is no similar recognition concerning territory occupied by Morocco in 1975. This was vividly demonstrated last December when the European Court of Justice (ECJ) decided to annul a free trade agreement with Morocco precisely because it failed to exclude the territory of occupied Western Sahara. Instead of taking the opportunity to uphold the fundamental human rights of an occupied people and implement the court’s landmark ruling, the EU foreign ministers decided to appeal the decision.
There are two more court cases currently pending before the ECJ. One concerns the EU-Morocco fisheries agreement and the other the labelling of goods originating in occupied Western Sahara. The EU will likely face stronger and stronger pressure to abide by its legal obligations and rectify its trade relations with both Israel and Morocco.
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