Thursday, February 22, 2018

The ECJ isn’t the right actor to make political choices related to trade deals

Published on Euractiv and Belgian newssite Express 

Trade deals should focus on opening up trade and should not be overloaded with all kinds of other purposes. And when politics does sneak into trade deals, it should be left to the elected politicians and not to judges, writes Pieter Cleppe.
Free trade deals are being more and more politicised. That’s not only due to the opposition against free trade. It’s also because these treaties are more and more overburdened with all kinds of issues that, strictly speaking, have little or nothing to do with scrapping protectionist trade barriers.
Then we’re not just talking about the European Commission’s plan to only sign trade deals with countries that ratify the Paris climate change accord or about the all kinds of clauses in trade deals that impose specific standards and regulations, for example on how extensive intellectual property protection must be.
This did lead to a lot of protest in the case of the proposed trade deal between the EU and the United States, TTIP, as well as with the EU-Canada trade deal CETA. There, many have expressed concerns about differences in food protection standards, obviously accompanied with a lot of exaggeration and hysteria.
We wouldn’t have this problem if trade deals would contain no standards but would simply scrap national protectionism, without aiming to align legislation and with trying to declare as much of each other’s regulation as equivalent.
All EU trade deals now include a clause stipulating that human rights are central to relations with the EU. The intentions here are obviously good, but who will be the judge of this and how strict can and should one be while judging whether or not there have been violations?
The opening of world trade in the past fifty years has lifted a couple of billion people out of extreme poverty, which has also improved the level of human rights protection. Imagine if this had not happened, because the West had refused to trade with countries where there are violations of human rights?
Yet a step further now is the EU’s top court in Luxembourg investigating whether existing treaties between EU and non-EU countries comply with international law provisions on the self-determination of peoples or the respect for human rights. This is often tricky political territory for judges.
In January, the advocate-general of the European Court of Justice, Melchior Wathelet, produced a non-binding advice on the so-called EU–Morocco Fisheries Partnership Agreement, which will have to be renewed this year or will otherwise expire in July.
Wathelet is a former Belgian politician, who’s controversial for having released a convicted child rapist early from prison in the early 1990s, which led to a major political crisis in Belgium afterwards. Perhaps his background as a politician makes him less reluctant to wade into politics as advocate-general.
In his advice, he says to consider the deal between the EU and Morocco to be invalid in so far as it applies to Western Sahara and its adjacent waters. This is because he thinks the EU violates international law, more precisely “the right of the people of Western Sahara to self-determination” and because it “recognize[s] an illegal situation” resulting from the Moroccan control of the area.
A core reason, according to the ECJ’s advocate-general, is that the deal prevents the exploitation of the natural resources of Western Sahara to benefit the inhabitants of the area.
Wathelet claims this support isn’t sufficiently generous, stating that “only 35% is destined for the Western Sahara, whereby there is no proof whatsoever that these funds effectively benefit the population of  Western Sahara”.
On the basis of this, he concludes that the “self-determination of the population of the Western Sahara” isn’t respected and that therefore fishery activities enabled by the trade deal shouldn’t be possible in the adjacent waters.
This despite the fact that a report prepared for the European Commission mentions that this partnership agreement does effectively provide several regions in Western Sahara with financial support whereby at least two-thirds of the funds go to the Western Sahara regions Dakhla-Oued Eddahab and Laâyoune-Sakia El Hamra.
Whether Wathelet has his facts wrong or not, ultimately the question is whether it’s desirable to let a Court make decisions here that are ultimately political.
It must be said that here we’re only talking about advice from the man whose job it is to represent the “general interest” in the court case and that the ECJ judges themselves still need to rule, something that is scheduled for 27 February.
Behind the scenes, Algeria has been involved in the Western Sahara dispute, so we’re talking about a sensitive geo-strategical issue, where Morocco has been convinced to at least propose a degree of autonomy.
The interests are considerable. If this Treaty with Morocco were to be legally torpedoed, we’d witness quite a bit of economic damage, as 90% of Moroccan fishing happens in Western Saharan waters and half a million jobs depend on it indirectly.
The EU accounts for two-thirds of Moroccan exports, so disturbing this relationship may destabilise a country that isn’t all too stable to begin with. Also, for EU countries this is important: about 120 ships from 11 EU member states are active in the area.
Apart from that, Morocco is also an important partner in stopping irregular migration flows and combatting terrorism, which happens to be an issue in Western Sahara itself.
Naturally, the importance of good EU-relations with Morocco is one of the reasons why the European Commission simply wants to renew the partnership and that’s also what most EU member states seem to prefer, unless the European Court of Justice throws up obstacles.
As a result of the tendency to increasingly politicise trade deals, difficult political trade-offs need to be made, for example with regards to the question to what extent trade deals with authoritarian countries are a good idea and what to do in case a territory is disputed.
The politicisation itself is already a problem, but to shift such sensitive decisions onto courts that don’t possess the legitimacy to make political decisions can endanger important trade deals. Resulting in a whole range of geo-strategical consequences.
Therefore: let trade deals focus on opening up trade and do not overload them with all kinds of other, perhaps even valuable purposes. Trade has proven to lift people from poverty and promote good neighbourship. And when politics does sneak into trade deals after all, leave it to elected politicians and not to judges.

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