The European Parliament's resolution: Spain both judge and party

The resolution adopted by the European Parliament on 10 June 2021 will undoubtedly be a milestone in the contemporary history of Moroccan-Spanish relations and, by extension, relations with the European Union. It risks, through its political and diplomatic consequences, having a long-term negative impact on Moroccan-Spanish relations and limiting the ambitions of both sides of the Mediterranean to strengthen the partnership between the two shores of the Western Mediterranean.

The outcome of the vote and the positions adopted by the various groups will undoubtedly be carefully assessed by the Moroccan authorities, who will not fail to draw the conclusions that best serve the interests of the Kingdom.

First let's look at the facts. It all began with the decision of the Iberian authorities to admit, on 21 April 2021, under a false name and with an Algerian diplomatic passport, Polisario leader Brahim Ghali for COVID-19 treatment. Given the quality of relations between the two countries linked since 1991 by a Treaty of Friendship and Good Neighbourliness and the close cooperation forged over decades, Morocco considered that it had the right to be informed in full transparency by the Spanish partner.

The arrival on 17 May of several young Moroccan men in the occupied enclave of Sebta was interpreted by the Spanish authorities as "a means of pressure" used by Morocco to put Brahim Ghali on trial in Spanish courts for human rights violations and to incite the Spanish to change their position on the regional conflict over the Moroccan Sahara. With the correlation thus established, Spain set out to mobilise the European authorities and pass a resolution to consolidate its position and attempt to break Morocco's relations with the EU.

This resolution, in which Spain is both judge and party, is not directed against a distant country outside the Union's sphere of interest but against the country closest to Europe, the one most committed to managing common challenges and the most ambitious in its quest to intensify its relations with the whole of Europe.

A quick review of the main provisions of this text shows that even if the European legislative body tried to soften the language of the initial draft by removing outrageous and offensive expressions that sought to "condemn in the strongest terms Morocco's blackmail" and by welcoming -not without having tried to put it into perspective at the level of the Preamble- the King's initiative to repatriate duly identified unaccompanied minors in an irregular situation in Europe, the resolution adopted represents, beyond arithmetical logic, a hostile act aimed at provoking Morocco, fuelling controversy and complicating any possibility of ending the crisis.

The text raises many questions and observations about its timing, orientation, formulation and implications. As for the title, first of all, instead of situating its action in the context and positive dynamics of partnership relations between Morocco and Europe, the resolution adopted the provocative wording "Violation of the UN Convention on the Rights of the Child and the instrumentalisation of minors by the Moroccan authorities in the migration crisis in Ceuta (Sebta)". The approach is clear, that of the internationalisation of a purely bilateral diplomatic crisis and the tone is marked, that of an attempt to incriminate, blame and stigmatise ("Naming and Shaming") Morocco on a sensitive issue that easily mobilises within the European Parliament, the issue of Human Rights.

Spain has built its argument before the European Parliament on Morocco's alleged failure to comply with its obligations under the Convention of 20 November 1989 on the Rights of the Child and International Law. It is well known that this type of convention gives rise to a periodic evaluation of each state's performance, during which independent United Nations experts take note of the progress made and identify the areas in which the state should make progress.

From Morocco's most recent meeting with the UN on the Convention on the Rights of the Child, the European resolution only took note of what it called "shortcomings". If we follow this selective logic, we could dwell on the following passage from the debate between Spain and the Committee on the Rights of the Child when it examined, in 2018, the fifth and sixth reports of this country concerning the children of Sebta and Melilla. It notes in particular that "the Committee is very concerned about the large number of complaints filed by these children under the Third Optional Protocol to the Convention and more particularly about acts of violence committed against minors in the Spanish enclaves of Ceuta and Melilla and the automatic return to Morocco in violation of the 1951 Refugee Convention. The Committee also deplored the reception conditions in the centres for migrants in these two enclaves, where detained minors are exposed to risks to their health and even their physical integrity”.

Beyond the content of this resolution, the fundamental question that arises is whether the European Parliament is competent to judge Morocco's actions in relation to compliance with the aforementioned convention. The answer is clearly no. Indeed, if we look at conventional practice, particularly in the field of human rights, we see that States parties to an instrument of this nature are accountable either to the conventional mechanisms to which they are obliged to submit periodic reports provided for by these treaties, or to the Human Rights Council through the Universal Periodic Review. No other body is empowered to pronounce on the monitoring and implementation of these international instruments.

If we exclude regular human rights discussions between Morocco and the EU as part of their strategic dialogue, we do not see how the European Parliament could replace the international treaty mechanisms and decide whether or not Morocco has violated its obligations under the Convention. Moreover, since Morocco is not a member of the European Union, the resolution does not concern it and cannot be enforceable against it, in application of the general principle of the relativity of treaties.

In its presentation of the facts, the European Parliament openly sides with Spain, without any reservations, nor any effort to understand the root causes of the crisis or to assess its consequences for the whole region. The entire resolution was drafted in such a way as to conceal the real reason for the crisis by diverting attention to Morocco's alleged violation of an international convention. If the European Parliament's concern was the protection of human rights, it should have denounced the complicity of the Spanish authorities in admitting Brahim Ghali into the Schengen area while he was accused of human rights violations against Moroccan and Spanish citizens.

To avoid this, the European Parliament is content to state that "whatever the reasons for the emergence of the current situation in Ceuta, it is unjustifiable". Then, moving from conclusion to accusation, the resolution argues that "the Moroccan police have temporarily relaxed border controls, opened barriers and neglected to take measures to stop illegal entries". And, giving Spain pride of place, the same Parliament concludes 'that the humanitarian intervention of the Spanish armed and security forces, NGOs and the citizens of Ceuta has prevented a real tragedy from occurring'. Spain is not only exonerated of all responsibility but is presented as the saviour and benefactor of the Moroccan minors.

As for the reference to the Moroccan Sahara, it reflects a position that now seems outdated by new political and diplomatic developments that urge Morocco's partners, starting with the European Union, to finally come out of their ambivalence and take a clear decision on the political, democratic and compromise solution proposed by Morocco.

Returning to the ups and downs of this crisis, one cannot help but be astonished at the haste with which the European Parliament was forced to endorse, in the space of a few days, an "emergency resolution" (Fast Track) that has serious consequences for relations between the two shores of the Mediterranean. It can easily be explained by Spain's desire to deprive Morocco of sufficient time to defend its position before the members of the European Parliament and thus thwart Spain's manoeuvre.

We would have expected, on the part of the European institution, a minimum of impartiality, weighting and moderation that would have allowed it to play a role of mediation and conciliation between one of its members and a partner with an "advanced status". Undoubtedly, in order to avoid this possibility, Spain took the emergency procedure to approve this resolution, the adoption of which reduces the possibilities of such mediation and risks prolonging the tension in relations between the two neighbouring countries.

A crisis such as the one currently affecting Spanish Moroccan relations cannot be resolved by declarations and press releases. Its resolution and its non-recurrence require a frank and direct explanation between the two Kingdoms, within the framework of a calm and responsible dialogue that addresses all the disputes between the two neighbours and leads to a relaunching of bilateral cooperation on the basis of a healthy and equitable relationship, with the mutual respect that should always prevail between two sovereign and equal States. This requires, above all on the part of Spain and Europe, a change of mentality and perception that can contribute to the establishment of new relations based on recognition and respect for the Moroccan partner's history, identity and vital interests.

It is to be hoped that the European executive will be able, in the coming days, to undertake initiatives that can help renew dialogue, re-establish trust between Morocco and Spain and avoid any action or stance that could poison the atmosphere or further complicate the bilateral dispute.

Short biography of M. Loulichki:

Mohammed Loulichki has a long and rich diplomatic career spanning more than 40 years; he was the Kingdom's former Ambassador to the United Nations and President of the Security Council. In addition to having served as Morocco's ambassador to several countries, Mr. Loulichki chaired the Security Council's Working Group on Peacekeeping Operations (2012) and that of the Security Council's Counter-Terrorism Committee (2013). He was also vice-chair of the Human Rights Council (2006-2007) and chair of the National Nuclear Monitoring Committee (2003-2006).

This article was previously published in Quid.