Chidi Odinkalu: Understanding Morocco’s application to join ECOWAS

Three weeks after the African Union decided on 30 January 2017 to readmit it following a 33-year absence, Morocco, which until then enjoyed the status of a sovereign Observer, announced on 24 February that it had applied to join the 15-member Economic Community of West African States (ECOWAS). In Monrovia, Liberia, on 5 June, the Summit meeting of the 51st Ordinary Session of the Assembly of Heads of State and Government of ECOWAS decided “in principle” to grant Morocco’s application.

This decision has attracted considerable comment and controversy, from across West Africa. Many object instinctively or reflexively to Morocco’s application and the Monrovia decision to grant it. Some of the objections have hewed to rational arguments, with varying degrees of factual and legal accuracy. The issues are serious and need to be clarified.

An uneasy tension between treaty and history

Founded in 1975, ECOWAS last admitted a new member in 1976, when Cape Verde joined. With Morocco’s application, it confronts new territory and epic dilemmas having far-reaching implications for Africa’s largest regional bloc. The requirement in the founding treaty limiting membership to “such other West African States as may accede to it” was removed when the ECOWAS Treaty was revised in 1992. As such, no question of regional contiguity necessarily arises at this time.

Nevertheless, the decision to consider Morocco’s application favourably pits West Africa’s rich historical affinity with Morocco against clear legal stipulations governing regional integration in ECOWAS treaties. How the Community resolves this tension will have significant implications for the future peace, security and stability of ECOWAS as a regional institution and of its member countries as they confront the shared challenge of stemming radicalization in the Sahel.

Resolving this tension will not be easy. Recognizing this reality, the Summit requested the Commission of ECOWAS – as the Secretariat of the organization is called – to “examine the implications” of Morocco’s accession in accordance with the provisions of the Revised ECOWAS Treaty of 1992 and report to the 52nd Ordinary Session of the Summit, at the end of the year. In doing so, the Commission will have to find ways to navigate the contradictions between history, geo-strategy and regional integration law.

A claim of geo-strategic benefit

Morocco’s application to join ECOWAS is in keeping with a history of diplomatic audacity under the ruling Alaouite Dynasty, which has controlled the affairs of the country since the mid-17th century. It was, for instance, the first country to recognize the United States as an independent country in 1777 and the Moroccan-American Friendship Treaty concluded nine years later in 1886 remains the oldest of such treaties binding on the USA. Around the same time, the Moroccan city of Fez, which had long been well established as a site of high learning in Islam, became host to Sheikh Ahmad al-Tijani, the Algerian-born religious teacher who founded the Tijaniyya order. From here, the Tijaniyya fanned out through the West Coast of Africa bearing both faith and trade in its spread across the region to Chad, Gambia, Ghana, Guinea, Mauritania, Niger, Nigeria, Senegal and Sudan.

All these countries except Chad, Mauritania and Sudan belong to ECOWAS. Mauritania, which shares common borders with Morocco, exited ECOWAS in 2000 in favour of the Arab Maghreb Union, better known by its French acronym, UMA, the regional organization in North Africa whose take-off has been bogged down by implacable rivalries between Morocco and Algeria. The ethnic Haratine and Gnawa of Morocco also have their origins in West Africa. This complex and rich history of faith, trade and demography easily inspires sentimental support for Morocco’s desire to join ECOWAS.

Even more importantly, the Tijaniya are in the Sahel, an arid stretch of brutal desert covering the Atlantic coast of West Africa to the west and the Gulf of Aden to the east. With northern frontiers located in Algeria, Libya and Morocco and its southern borders in the countries of the Lake Chad Basin, including Nigeria and Cameroon, the Sahel is home to some of the most deadly sources of extremist violence in the world, including Al-Quaeda in the Islamic Maghreb (AQIM), the Al-Shabaab, Boko Haram, and a regional franchise of the Islamic State (IS) led by Habib Yusuf (Abu Musab Al-Barnawi), whose father, Mohammed Yusuf, founded Boko Haram.

By its application to join ECOWAS, Morocco dangles a geo-strategic benefit to the region in the fight against these extremist organizations through the shared expertise of its own security and faith-based networks. With Morocco’s accession, ECOWAS will potentially claim a contiguous stretch of territory to the Maghreb, giving it access to counter-terror capabilities that were hitherto not necessarily within its reach. Seen as a net contributor to regional security and counter-radicalization capabilities, the likelihood is that Morocco’s application could receive diplomatic backing from the current US administration.

Counting the cost

The real question, however, is what price ECOWAS is willing to pay to acquire this capability. For a long time, the biggest problem in regional relations with Morocco has been its claim over the Western Sahara, the former Spanish territory annexed by the late King Hassan II in 1975. Nigeria, a leading advocate for Western Sahara’s self-determination, is also the undisputed leader in ECOWAS. It is significant that Nigeria was absent from the Monrovia Summit. Like the AU when it decided to readmit Morocco, ECOWAS will have to find a formula around this.

Also known in Arabic as al-Maghrib al-Aqá or “the Farthest (Kingdom) West”, Morocco is the only African country that sits astride the Atlantic Ocean, the Mediterranean Sea and the Sahara Desert. Separated by a mere eight kilometres from Europe at the Straits of Gibraltar, Morocco is a magnet to irregular migrants from West Africa seeking entry into the European Union. As a result it is also a major focus of Europe’s perimeter policing efforts aimed at discouraging such migration.

However, the cornerstone of regional integration obligations in ECOWAS is free factor mobility, including free movement of goods and of persons. By signing up to ECOWAS, Morocco will be under a duty to accept the ECOWAS Protocol on Free Movement of Persons, offering a regime of visa-free travel and, potentially, a right of establishment to citizens of all 15 ECOWAS countries. This would almost invariably put the Euro-Mediterranean migration system under pressure and is bound to meet with opposition from the European Union (EU) at a time that it faces serious crisis traceable largely to concerns over migration.

A menu of five options

The conflicting interests of the EU and the US in Morocco’s ECOWAS application raises the stakes and gives ECOWAS serious decisions to make. Five options are open. First, it could insist that Morocco accepts all ECOWAS treaties, protocols and directives as a package. The likelihood is that the Protocol on Free Movement of Persons will present insurmountable problems for Morocco.

In response to this, a second option could be to offer Morocco an exemption from the Protocol. This will have the effect of creating a two-track ECOWAS, giving other member countries the possibility to re-open existing ECOWAS obligations. This result will almost certainly unravel the understandings that have underpinned Africa’s oldest regional bloc for over 40 years. If it is offered to Morocco, for instance, Cape Verde will almost surely exercise a right to denounce the Protocol on Free Movement of Persons. This option will spell the end of ECOWAS and is unlikely to be on the table.

A third option could be to have a period of negotiation and initiation, during which the scope of Morocco’s membership obligations and benefits could be progressively enhanced based on trial, monitoring and error.

Option four will be for ECOWAS to reverse the Monrovia decision. Morocco will then revert to its existing observer arrangements with ECOWAS.

There is a fifth option, which is for Morocco to negotiate a bilateral arrangement with ECOWAS as a bloc.

Morocco’s application could enlarge ECOWAS in geo-strategic terms but diminish it institutionally. It could also persuade Mauritania to re-join the bloc but will simultaneously weaken even further the UMA. Separately, the governance of factor mobility in ECOWAS will come under serious pressure from both within and beyond the region. The future of ECOWAS will depend on how the region navigates these contradictory pressures and options.

Odinkalu is a lawyer from Nigeria and specialises in the laws and institutions of regional integration in Africa.