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The author is a professor at Northwestern University School of Law, Lady Davis Visiting Professor at the Hebrew University, a Senior Fellow at the Kohelet Policy Forum and a Fellow of the Legal Forum for Israel.

The EU has in recent weeks provisionally approved a contentious agreement with Morocco that extends EU-Moroccan fisheries treaties into the territory of Moroccan-occupied Western Sahara. The deal both applies beyond Morocco’s recognized sovereign territory into occupied territory, and further, actually pays Morocco for access to the Western Saharan fishery.On all these points, the agreement directly contradicts what the EU has called fundamental principles of international law in its dealings with Israel. Indeed, the EU has been negotiating this agreement with Morocco even as it imposes on Israel unprecedented funding guidelines that say the exact opposite.BackgroundMorocco invaded Western Sahara in 1975 and has occupied it since claiming it as its own territory.No nation in the world recognizes this claim, and the United Nations Security Council has demanded that Morocco completely withdraw.Morocco has engaged in an aggressive settlement policy, as a result of which settlers may now be the majority in the territory.The EU also does not recognize Western Sahara as part of Morocco, but this has not stopped it from extending its agreements with Morocco to cover Israel. The Fronte Polisario is the generally recognized representative of the indigenous people (Sawahari), and Western Sahara has been recognized as a nation by 40 countries.This is not the first such agreement with Morocco to apply to its occupied territory. However, the arrangement was criticized by several EU members, and there was some chance that it would not be implemented in the fisheries protocol.Differences with Israeli agreements1) Territorial Scope. The fisheries agreement applies not just to the “territory” of Morocco, but to all areas under its “jurisdiction,” which is understood to include Western Sahara. In agreements with Israel, however, the EU has only applied it to the “territory” of Israel, which is understood to exclude the West Bank, as well as Jerusalem.The new Funding Guidelines go further and exclude entities with operations in the territories.The guidelines claim that their approach is required by “international law” to avoid recognizing Israel sovereignty over the territories. The Moroccan case proves this concern false and pretextual.2) Funding. The EU says that its “tax dollars” cannot be spent in occupied territory. Yet it pays Morocco specifically to exploit the scarce resources of occupied territory, against the wishes of its political representatives. This is much more severe than awarding science grants or prizes for, say, archaeological research in the Golan.THE EU Parliament’s formal legal opinion contradicts position on Israel The agreement was adopted despite massive opposition from the political representatives of the Western Saharan people, as well as some European nations. As a result of the controversy, the European Parliament obtained an opinion from its legal adviser.The official opinion, in brief, says international law does not prevent Morocco from exploiting the natural resources of the occupied territory, let alone merely doing business there. Despite the complete opposition of the Sawahari leadership, the incidental economic benefits of “development” (which the Sawahari deny exists) can be considered sufficient to satisfy Morocco’s obligation to them. Moreover, the opinion says it is legal for the EU to pay Morocco to exploit the resources of occupied territory.Of course, the inconsistency between the treatment of Morocco and Israel does not in itself demonstrate which is correct. However, the position regarding Western Sahara is consistent with all prior international law, including a 2002 opinion by the Security Council’s legal adviser, and a ruling of the French Court of Appeals this summer in the Alstom case, as well as the practice of all other nations, and the EU’s own practice in other occupied territories. The EU is right about Western Sahara – which means it is wrong about Israel.ConclusionsThe positions adopted by the EU in its negotiations with Israel over grants and product labeling are inconsistent with those it has taken at the same time in its dealings with Morocco. While the EU does not recognize Israel’s control over the territories, and opposes it, the same is true of its policy toward Morocco in Western Sahara. Yet this policy does not require, nor does international law, the punitive measures adopted toward Israel.In particular, the EU has used entirely fabricated international law claims in its dealing with Israel, claims contradicted by its own practice and official legal advice.Europe would better advance its policies regarding the West Bank by treating Israel consistently with international law. Perversely, the EU’s treatment of Morocco only encourages Israel to conduct more economic activity in the territories. The EU has been under strong pressure to sign the deal with Morocco because of Spanish and French interests in the fish in the occupied territory. They simply did not want to lose an economic opportunity.The message this sends to Israel is that it may have not enough business in the territories, rather than too much, and that it should locate more crucial projects in the defense and technology sector in the territories.