效忠盲目、域外繁荣和安全矛盾:对欧洲法院关于源自西撒哈拉的产品的裁决的批判性分析

Mohammed El Hadi El Maknouzi
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摘要

背景:欧洲法院最近宣布第 2019/217 号理事会决定(欧盟)无效,该决定授权欧洲联盟与摩洛哥王国以换文形式缔结一项协定。该协议最初将双方之间的优惠贸易待遇范围扩大到原产于西撒哈拉并受摩洛哥海关当局管制的产品。欧洲法院的裁决取消了这些贸易优惠,并对该地区实施了事实上的欧盟禁运。本文从法律和政策两方面对欧洲法院的裁决进行了批判性讨论。从法律角度看,欧洲法院的裁决放弃了对根据伊斯兰法适用于西撒哈拉的主权概念的考虑,而这种考虑本会导致承认西撒哈拉对摩洛哥的持久 "效忠"。此外,同一裁决相当于在域外适用欧盟法律,违反了协议不可分割的原则。从政策角度看,欧洲法院的裁决承认了非国家武装军事存在的地位,在萨赫勒地区极度不稳定的背景下,为恐怖组织和反叛民兵提供了一种针对地区政府的讹诈策略。方法:本评论采用描述性方法概述、分析、解释和批评欧洲法院 2021 年的裁决,该裁决拒绝为来自西撒哈拉地区的产品提供优惠贸易待遇,即使这些产品是在摩洛哥海关当局的控制之下,而摩洛哥的产品则继续享受这种待遇。结果与结论:欧洲法院部分使用了国际法的概念,因为它没有考虑到伊斯兰世界中与部落、效忠和忠诚相关的主权概念。此外,将欧洲法律的适用范围扩大到一个与欧盟有若干协议的第三国,必须避免任何受地区冲突和国际平衡影响的政治层面。执行上述裁决等同于对西撒哈拉地区实施经济封锁,这将不可避免地影响该地区 的安全局势,从而使其更接近恐怖组织的影响。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
ALLEGIANCE BLINDNESS, EXTRA-TERRITORIAL EXUBERANCE, AND SECURITY AMBIVALENCE: A CRITICAL ANALYSIS OF THE RULING OF THE EUROPEAN COURT OF JUSTICE ON PRODUCTS ORIGINATING FROM WESTERN SAHARA
Background: The European Court of Justice recently annulled Council Decision (EU) No. 2019/217, which had authorised the conclusion of an agreement—in the form of an exchange of letters—between the European Union and the Kingdom of Morocco. This agreement initially extended coverage of preferential trade treatment between the two parties to products originating in Western Sahara and subject to the control of Moroccan customs authorities. The ECJ’s ruling has removed those trade preferences and imposed a de facto EU embargo on the region. This article critically discusses the ECJ’s ruling on both legal and policy grounds. From a legal standpoint, the ECJ’s decision foregoes consideration of notions of sovereignty applicable to Western Sahara in virtue of Islamic law, which would have led to recognition of its enduring ‘allegiance’ to Morocco. Moreover, the same decision amounts to an instance of extra-territorial application of EU law and infringes the principle of indivisibility of agreements. From a policy standpoint, by acknowledging standing in virtue of mere non-State armed military presence, the ECJ’s ruling has offered to terrorist groups and rebel militias— in a context of profound instability in the Sahel region—a blackmail strategy vis-à-vis regional governments. Methods: This critical review uses the descriptive approach to outline, analyse, interpret, and criticise the 2021 ECJ ruling, which denies preferential trade treatment to products from the Western Sahara region, even when under the control of Moroccan customs authorities, while Moroccan products continue to receive such treatment. Results and Conclusions: The European Court of Justice partially used the concepts of international law as it paid no regard to the concept of sovereignty in the Islamic world, which is connected to tribe, allegiance and loyalty. Further, extending the application of the European Law to a third state, which has several agreements with the European Union, must be devoid of any political dimension affected by regional conflicts and international balances. The enforcement of the referred ruling is tantamount to the economic embargo on the Western Sahara Region, which will inevitably affect the security situation thereof and thus bring it closer to the influence of terrorist groups.
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