Legal framing and litigation in EU foreign policy: Comparing the case of Israel/Palestine and Morocco/Western Sahara

This paper investigates the impact legal mobilization, in the forms of legal framing and litigation, by non-state actors on EU foreign policy towards Israel/Palestine and Morocco/Western Sahara. In both cases, non-state actors (NSAs) (NGOs, business actors, and liberation movements) have mobilized in the EU with a view to changing EU foreign policy towards Israel and Morocco, which is viewed as not complying with the duty of non-recognition by third states of violations of international law and favouring the ongoing occupation through de-facto recognizing Israeli and Moroccan practices in the West Bank/East Jerusalem/Golan Heights and Western Sahara respectively. This paper shows that NSAs have adopted two different forms of legal mobilization to influence EU foreign policy. In the case of Israel/Palestine they have relied on legal framing, while they have used litigation in the case of Morocco/Western Sahara. Yet, legal framing has been more impactful than litigation in changing EU foreign policy. On the one hand, legal framing has led to a long-term change in the understanding and subsequent implementation of EU foreign policy towards Israel, which has reframed its bilateral relation with Israel as excluding the occupied territories from EU-Israel agreements. On the other hand, litigation has only managed to stop EU policy temporarily (i.e., by making EU-Moroccan agreements not applicable to Western Sahara), but it has not led to a new approach in EU foreign policy towards Morocco. In the long term, there is the risk that member states might decide to recognize Morocco’s sovereignty (and its Autonomy Plan) to get out of the impasse created by the CJEU rulings.