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The Criminalization of Migration in Europe: The Way Ahead

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] T [/yt_dropcap]he contemporary world is fraught with trends directed at the criminalization of international migration (CoM). The modus operandi of migration management is replete with the flagrant violation of international refugee law (IRL) principles like non-refoulement that does not allow any person to be sent back to the territories inimical to his/her life, liberty and security.

CoM has pandered to many human catastrophes sans accomplishing the fundamental principles of IRL. It is, indeed, a well-established fact of international law that states are legitimate in controlling, securing and administrating their national borders while refusing the entry of people or individuals arriving from foreign lands. However, there are international instruments, agreements, and understandings where under rights of migrants, immigrants, refugees, asylum-seekers are protected on a binding basis. These international arrangements envisage non-discriminatory and rights-based procedures to seek asylum in another country. But, unfortunately, some migrants cannot claim refugee status even if they are involuntarily repatriated, deported or expelled to their homelands of persecution and economic calamities. On many occasions, a number of migrants live in the country of refuge for a long time and secretly earn their livelihood in the host countries. These migrants have their children in schools but they could not get themselves regularized in the host country and destined to live under clandestine conditions with the fear of being apprehended and deported by the law enforcement agencies.

In the present circumstances, far-right political trends and xenophobia have created a hostile atmosphere for the migrants in all countries. Therefore, migrants are being targeted and deported by the host governments under the quota system back to their turbulent countries. However, it must be noted here that irregular migrants do have human rights under international law. But there is no indication to criminalize the efforts to enter or stay in a country without any permission or visa documents. This retrogressive situation is exploited by the xenophobes and human trafficking syndicates. Consequently, such steps have put the right to seek asylum in jeopardy that would badly hit the refugees in the long run. Thus, the persons who were smuggled into a country of reception must not be perceived to have committed a crime. Under the international conventions, victims of human trafficking must be protected from any criminal liability. The protection of the rights of all migrant workers and members of their families who have been detained for violating the migration law must be separated from the convicted persons or persons with the pending trial. Migrant workers and members of their families are not criminals in these circumstances. Therefore, CoM is a measure disproportionate to the rights of a state to secure its national borders and territorial integrity otherwise criminalizing irregular migrants would tantamount to compare them with smugglers and human traffickers. Moreover, such a measure would cause ostracism, marginalization, and stigmatization of majority of the migrants.

Meanwhile, migrants have been making modest contributions in the development of the host countries in Asia, Canada, Europe, and North America, etc. but national governments treat immigration offenses as criminal acts instead of omissions of administrative nature. In many countries of Europe and member states of Council of Europe (CoE) and Pax-Americana, prisons are full of irregular migrants due to their being labeled as criminals. In these prisons, worst violations of human rights are rampant. Irregular migrants are subjected to live in degrading and inhumane conditions and picture is not very different in the detention centers. However, aliens are extremely vulnerable under the administrative confinement where they get highly abusive treatment. On the other hand, there is an emerging issue of demand of cheap labour that is primarily provided by the irregular migrants in the host countries of Southern Europe where in agricultural sector, a lot of migrants have been employed by the European landlords. In this backdrop, states should control irregular migration while taking into consideration the following aspects:

  1. That states must not contemplate new criminal offenses into municipal legal systems relating to entry, stay, and residence for migrants and must not overburden the existing judicial establishments.
  2. That the European judiciaries must not be subjected to confront the problems of the disproportionate duration of proceedings in violation of Article 6 of ECHR as European Court of Human Rights might flood with the greater amount of applications.
  3. That the host national governments must not overcrowd their jails and must not establish new detention facilities for irregular migrants as tagging them as criminals under national penal laws would require pre-trial and post-conviction detention facilities.
  4. That the detention of irregular migrants for eighteen months in EU member states under the Returns Directive that was adopted by the European Parliament must be harmonized in conformity with the European policies and values on the primacy of human rights, the rule of law and democracy.
  5. That Pax-Americana and European political establishment must realize the fact of human rights supremacy in administrative and governance affairs and nation-states must strive to conceive a long-term strategy for irregular migrants for their employment.
  6. That the migrants are a cheap labour in many parts of Europe and industrialized countries and they are in demand to perform all those jobs which are not preferred by the nationals of the host countries particularly agrarian jobs. But, unfortunately, working conditions in the agricultural field are not of European or global human rights standards; therefore, existing corrupt state of affairs needs a drastic improvement thereon.

There is an incremental, influential and proximal mobility in the contemporary world where irregular migration has been thriving beyond the simple understanding of deprivation, denial, and exclusion of migrants in the countries of origin. However, the migration is a pre-socio-political and perennial phenomenon of human peregrination that entails an infallible, indelible and multi-dimensional action by the nation-states. Though, there is a lack of transparent immigration mechanisms and procedures that cannot address the demands of different sectors where adequate labour is not available. It is interesting to note that in most European states immigration is still the most complex and intricate field of law owing to inter-alia the emergence of the far-right political nationalism.

Therefore, European countries should make efforts to streamline their immigration laws as per the guidelines followed by the UK government in its dealing with irregular migrants. Thus, it is incumbent upon the European member states to formulate clear and efficient immigration ways ahead out of irregular migration channels. All the members of Council of Europe must accede to the European Convention on the Legal Status of Migrant Workers that addresses the core aspects of the regular migration, migrant labour employment, working conditions, social support and medical benefits, etc. Now, it is, indeed, the most opportune time for CoE member states to ratify the International Convention on Migrant Workers (ICRMW) as the CoE countries have contributed in the drafting of this Convention that globally and comprehensively addresses the plight of regular and irregular migrants and establishes the fundamental human rights guarantees for them. It is imperative upon the CoE member states to ensure the full compliance with the ICRMW and its integration in their state policy, priority and practice on human rights.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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Europe

Revisiting the Bosnian War

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Genocide is not an alien concept to the world nowadays. However, while the reality (and the culprit) is not hard to profile today, history is ridden with massacres that were draped and concealed from the world beyond. Genocides that rivaled the great warfares and were so gruesome that the ring of brutality still pulsates in the historical narrative of humanity. We journey back to one such genocide that was named the most brutish mass slaughter after World War II. We revisit the Bosnian War (1992-95) which resulted in the deaths of an estimated 100,000 innocent Bosnian citizens and displaced millions. The savage nature of the war was such that the war crimes committed constituted a whole new definition to how we describe genocide.

The historical backdrop helps us gauge the complex relations and motivations which resulted in such chaotic warfare to follow suit. Post World War II, the then People’s Republic of Bosnia and Herzegovina joined the then Federal People’s Republic of Yugoslavia. Bosnia-Herzegovina became one of the constituent republics of Yugoslavia in 1946 along with other Balkan states including Croatia, Slovenia, Macedonia, Montenegro, and Serbia. As communism pervaded all over Yugoslavia, Bosnia-Herzegovina began losing its religion-cultural identity. Since Bosnia-Herzegovina mainly comprised of a Muslim population, later known as the Bosniaks, the spread of socialism resulted in the abolition of many Muslim institutions and traditions. And while the transition to the reformed Federal Republic of Yugoslavia in 1963 did ease the ethnic pressure, the underlying radical ideology and sentiments never fully subsided.

The Bosniaks started to emerge as the majority demographic of Bosnia and by 1971, the Bosniaks constituted as the single largest component of the entire Bosnia-Herzegovina population. However, the trend of emigration picked up later in the decades; the Serbs and the Croats adding up to their tally throughout most of the 70s and mid-80s. The Bosnian population was characterized as a tripartite society, that is, comprised of three core ethnicities: Bosniaks, Serbs, and Croats. Till  1991, the ethnic majority of the Bosniaks was heavily diluted down to just 44% while the Serbian emigrants concentrated the Serbian influence; making up 31% of the total Bosnian population.

While on one side of the coin, Bosnia-Herzegovina was being flooded with Serbs inching a way to gain dominance, the Yugoslavian economy was consistently perishing on the other side. While the signs of instability were apparent in the early 80s, the decade was not enough for the economy to revive. In the late 80s, therefore, political dissatisfaction started to take over and multiple nationalist parties began setting camps. The sentiments diffused throughout the expanse of Yugoslavia and nationalists sensed an imminent partition. Bosnia-Herzegovina, like Croatia, followed through with an election in 1990 which resulted in an expected tripartite poll roughly similar to the demographic of Bosnia. The representatives resorted to form a coalition government comprising of Bosniak-Serb-Craot regime sharing turns at the premiership. While the ethnic majority Bosniaks enjoyed the first go at the office, the tensions soon erupted around Bosnia-Herzegovina as Serbs turned increasingly hostile.

The lava erupted in 1991 as the coalition government of Bosnia withered and the Serbian Democratic Party established its separate assembly in Bosnia known as ‘Serbian National Assembly’.  The move was in line with a growing sentiment of independence that was paving the dismantling of Yugoslavia. The Serbian Democratic Party long envisioned a dominant Serbian state in the Balkans and was not ready to participate in a rotational government when fighting was erupting in the neighboring states. When Croatia started witnessing violence and the rise of rebels in 1992, the separatist vision of the Serbs was further nourished as the Serbian Democratic Party, under the leadership of Serb Leader Radovan Karadžić, established an autonomous government in the Serb Majority areas of Bosnia-Herzegovina.

The vision and the actions remained docile until the ring of independence was echoed throughout the region. When the European Commission (EC), now known as the European Union (EU), and the United States recognized the independence of both Croatia and Slovenia, Bosnia-Herzegovina found itself in a precarious position. While a safe bet would have been to undergo talks and diplomatic routes to engage the Serbian Democratic Party, the Bosnian President Alija Izetbegović failed to realize the early warnings of an uprising. Instead of forging negotiations with the Bosnian Serbs, the Bosniak President resorted to mirror Croatia by organizing a referendum of independence bolstered by both the EC and the US. Even as the referendum was blocked in the Serb autonomous regions of Bosnia, Izetbegović chose to pass through and announced the results. As soon as the Bosnian Independence from Yugoslavia was announced and recognized, fighting erupted throughout Bosnia and Herzegovina.

The Bosnian Serbs feared that their long-envisioned plan of establishing the ‘Great Serbia’ in the Balkans was interred which resulted in chaos overtaking most of Bosnia. The blame of the decision, however, was placed largely on the Bosniak president and, by extension, the entire ethnic majority of the Bosniaks. The Bosnian Serbs started to launch attacks in the east of Bosnia; majorly targeting the Bosniak-dominated towns like Foča, Višegrad, and Zvornik. Soon the Bosnian Serb forces were joined by the local paramilitary rebels as well as the Yugoslavian army as the attacks ravaged the towns with large Bosniak populations; swathing the land in the process. The towns were pillaged and pressed into control whilst the local Bosniaks and their Croat counterparts were either displaced, incarcerated, or massacred.

While the frail Bosnian government managed to join hands with the Croatian forces across the border, the resulting offense was not nearly enough as the combination of Serb forces, rebel groups, and the Yugoslavian army took control of almost two-thirds of the Bosnian territory. The Karadžić regime refused to hand over the captured land in the rounds of negotiations. And while the war stagnated, the Bosniak locals left behind in small pockets of war-ravaged areas faced the brunt in the name of revenge and ethnic cleansing.

As Bosniaks and Croats formed a joint federation as the last resort, the Serbian Democratic Party established the Republic Srpska in the captured East, and the military units were given under the command of the Bosnian-Serb General, Ratko Mladic. The notorious general, known as the ‘Butcher of Bosnia’, committed horrifying war crimes including slaughtering the Bosniak locals captured in violence, raping the Bosniak women, and violating the minors in the name of ethnic cleansing exercises. While the United Nations refused to intervene in the war, the plea of the helpless Bosniaks forced the UN to at least deliver humanitarian aid to the oppressed. The most gruesome of all incidents were marked in July 1995, when an UN-declared safe zone, known as Srebrenica, was penetrated by the forces led by Mladic whilst some innocent Bosniaks took refuge. The forces brutally slaughtered the men while raped the women and children. An estimated 7000-8000 Bosniak men were slaughtered in the most grotesque campaign of ethnic cleansing intended to wipe off any trace of Bosniaks from the Serb-controlled territory.

In the aftermath of the barbaric war crimes, NATO undertook airstrikes to target the Bosnian-Serb targets while the Bosniak-Croat offense was launched from the ground. In late 1995, the Bosnian-Serb forces conceded defeat and accepted US-brokered talks. The accords, also known as the ‘Dayton Accords’, resulted in a conclusion to the Bosnian War as international forces were established in the region to enforce compliance. The newly negotiated federalized Bosnia and Herzegovina constituted 51% of the Croat-Bosniak Federation and 49% of the Serb Republic.

The accord, however, was not the end of the unfortunate tale as the trials and international action were soon followed to investigate the crimes against humanity committed during the three-year warfare. While many Serb leaders either died in imprisonment or committed suicide, the malefactor of the Srebrenica Massacre, Ratko Mladic, went into hiding in 2001. However, Mladic was arrested after a decade in 2011 by the Serbian authorities and was tried in the UN-established International Criminal Tribunal for Yugoslavia (ICTY). The investigation revisited the malicious actions of the former general and in 2017, the ICTY found Ratko Mladic guilty of genocide and war crimes and sentenced him to life in prison. While Mladic appealed for acquittal on the inane grounds of innocence since not he but his subordinates committed the crimes, the UN court recently upheld the decision in finality; closing doors on any further appeals. After 26-years, the world saw despair in the eyes of the 78-year-old Mladic as he joined the fate of his bedfellows while the progeny of the victims gained some closure as the last Bosnian trail was cased on a note of justice.

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Greece And Yugoslavia: A Brief History Of Lasting Partitions

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Prior to the 1992-1995 Balkan war, the European Community delegated the British and Portugese diplomats, Lord Carrington and Jose Cutileiro, to design a suitable scheme for ethno-religious partition of Bosnia-Herzegovina, and in February 1992 they launched the Lisbon Conference, with the aim of separating Bosnian ethno-religious communities and isolating them into distinct territories. This was the initiation of the process of partition, adopted in all subsequent plans to end the war in Bosnia. However, such a concept was stipulated by Carrington and Cutileiro as the only available when there was no war to end, indeed, no war in sight; and, curiously, it has remained the only concept that the European Community, and then the European Union, has ever tried to apply to Bosnia.

Contrary to the foundations of political theory, sovereignty of the Bosnian state was thus divided, and its parts were transferred to the three ethno-religious communities. The Carrington-Cutileiro maps were tailored to determine the territorial reach of each of these communities. What remained to be done afterwards was their actual physical separation, and that could only be performed by ethnic cleansing, that is, by war and genocide. For, ethno-religiously homogenous territories, as envisaged by Carrington and Cutileiro, could only be created by a mass slaughter and mass expulsion of those who did not fit the prescribed model of ethno-religious homogeneity. The European Community thus created a recipe for the war in Bosnia and for the perpetual post-war instability in the Balkans. Yet, ever since the war broke out, the European diplomatic circles have never ceased claiming that this ‘chaos’ was created by ‘the wild Balkan tribes’, who ‘had always slaughtered each other’. There was also an alternative narrative, disseminated from the same sources, that Russia promoted the programme of ‘Greater Serbia’, which eventually produced the bloodshed in Bosnia and Kosovo.

Facts on the ground, however, do not support either of these narratives. All these ‘tribes’ had peacefully lived for centuries under the Ottoman and Habsburg empires, until nationalist ideas were imported into Serbia and Greece at the beginning of the 19th century. On the other hand, Russia’s influence in the Balkans could never compete with the influence of the Anglo-French axis. The latter’s influence was originally implemented through the channels of Serbian and Greek nationalisms, constructed on the anti-Ottoman/anti-Islamic and anti-Habsburg/anti-Catholic grounds, in accordance with strategic interests of the two West European powers to dismantle the declining empires and transform them into a number of puppet nation-states. In these geopolitical shifts, nationalist ideologies in the Balkans utilized religious identities as the most efficient tool for mobilization of the targeted populations and creation of mutually exclusive and implacable national identities.

The pivotal among these nationalist ideologies has been the Serb one,  built on the grounds of Orthodox Christianity, with its permanent anti-Islamic and anti-Catholic agenda. The existence and expansion of Serbia was always explicitly backed by London and Paris – from a semi-autonomous principality within the Ottoman territory in the 1830s and the creation of the Kingdom of Serbia in 1882, through the 1912-13 Balkan wars and World War I, to its expansion into other South Slavic territories in the form of the Kingdom of Serbs, Croats and Slovenes (later, the Kingdom of Yugoslavia), promoted at the Versailles Peace Conference in 1919.

Eventually, the Serbian elites – supported by the Anglo-French axis, again – used the dissolution of the communist Yugoslavia as an opportunity for implementation of the 19th-century ‘Greater Serbia’ programme, that is, Serbia’s expansion in all the Yugoslav territories populated by the Orthodox Christians. However, this time ‘Greater Serbia’ was used as a catalyst in a bigger geopolicial reshuffling advocated by the UK and France – the simultaneous implementation of four ethnnically homogenous greater-state projects, including ‘Greater Serbia’ (transferring the Orthodox-populated parts of Bosnia, plus Montenegro and the northern part of Kosovo, to Serbia), ‘Greater Croatia’ (transferring the Catholic-populated parts of Bosnia to Croatia), ‘Greater Albania’ (transferring the Albanian-populated parts of Kosovo and Macedonia to Albania) and ‘Greater Bulgaria’ (transferring the Slavic parts of Macedonia to Bulgaria).

Since 1990s, ethno-religious nationalisms in the Balkans have served only  this geopolitical purpose – creation of ethno-religiously homogenous ‘greater’ states, including the disappearance of Bosnia and Macedonia, whose multi-religious and multi-ethnic structure has been labelled by the British foreign policy elites as “the last remnant of the Ottoman Empire“ that needs to be eliminated for good. The only major foreign power that has opposed these geopolitical redesigns is the US, which has advocated the policy of inviolability of the former Yugoslav republics’ borders. Yet, the US has never adopted a consistent policy of nation-building for Bosnia and Macedonia, which would be the only one that could efficiently counter the doctrine of ethno-religious homogeneity promoted by the UK and France and supported by most EU countries.   

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Failed Diplomacy: A hot tension between Spain and Morocco

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An unexpected diplomatic wrong move on the part of the Spanish government through its interference in the Moroccan territorial sovereignty caused diplomatic tension, which may reach a high degree of suspending all diplomatic and strategic partnerships between the two neighboring countries. This diplomatic strain came after Span refused to give any facts to the Moroccan government regarding the reception of the Ibrahim Ghali Leader of separatist of Polisario Front in Spain’s soil under the so-called humanitarian and health reasons. Unfortunately, Irrational justifications from the Spanish Ministry of Foreign Affairs didn’t react to true cooperation with Morocco to make a peaceful resolution with their Northern border.

Ghali’s illegal entry to Spain has questioned Madrid’s about the principle of good neighboring agreement, and more importantly the credibility and independence of the Spanish judiciary, and the extent of its actual involvement in promoting the principle of non-impunity, the Spanish government found itself in an awkward position in front of domestic and international public opinion. Thus, Concerning this issue puts the Spanish status of “democracy” and “human rights” to a real test.

In diplomacy, “consensus” signifies the accepted context in which the adjustment of conflicts through negotiation is only the rightful way. The Moroccan-Spanish tension was created by the Algerian government to disrupt Moroccan foreign policy in the North African arena. This crisis is a clear sign that shows the diplomatic contradiction between the Spanish foreign affairs decisions and statements in the name of strengthening relations with a strategic partner “ Morocco ” with which he brings together a set of common interests and priorities, whether it is linked to migration issues, preventing terrorism or pledging unmannerly actions and policies that contradict the requirements of strategic partnership and good friendship.

In effect, this is what the crisis has flamed the diplomatic difficult stages that the relations between the two countries have gone through in recent years. It also brings to mind the Leila Island crisis, which flared up in 2002. When The Kingdom of Morocco determined to delineate its maritime borders, the Socialist Party, which leads the Spanish government, showed its rejection of this move, and in the aftermath of it. Former US President Donald Trump issued a republican decree recognizing the Moroccan Sahara, and Spain openly stated its annoyance with the issue, and its Secretary of State confirmed its rejection of what she labeled as “unilateral trends in international relations”, but she admitted that her country had contacts with the current US president. Joe Biden to push him to change this decision, which caused a great shock in Moroccan public opinion.

Accordingly, many of the Spanish trends in recent decades have raised concerns about any Moroccan military development, and also the breakthrough in the Moroccan Sahara dispute that supports Morocco’s regional and international position, which adds a degree of uncertainty to the relations between the two states, and brings to the international understanding the case future of the occupied cities of Ceuta and Melilla and several other islands particularly the Canary.  

In line with these circumstances, Morocco has retained that the Spanish authorities are responsible for worsening diplomatic relations by accepting an adverse person. The humanitarian reasons that justified the reception of the Polisario Front leader Ibrahim Ghali put Spain in a position of a discrepancy, given its denial of the human suffering of many of its victims, and its preference for the security approach in dealing with migration cases. Meanwhile leaving behind a legacy of the human crimes committed by the colonial army in northern Morocco, especially those related to the use of toxic substances, and the resulting destruction in the framework of the  Spanish colonial campaign that targeted Morocco in the last of twenties century, it is related to human genocide that falls within the war crimes. Many studies and reports carried out by researchers and non-governmental organizations have shown the prevalence of lung cancer among the population of the region, far exceeding the national rates recorded in this regard, which demands Spain to acknowledge these crimes that do not have a statute of limitations and bear the responsibility for their remnants and consequences.

Certainly, nothing is easy in the field of world politics as the realists argue what Morocco and Spain need from each other are their mutual geopolitical and geo-economical interests? This type of approach is reasonable and also skeptical. Indeed, historically the Kingdom of Morocco and Spain had been on good terms for a few centuries, and during the French colonial era, Spain acted as a natural buffer state between Morocco and colonial France.

Strategically speaking, the Kingdom of Morocco wants to sustain its border areas peaceful and stable in light of its “Strategy on Borders Demarcation” that means while Morocco tries to combine its entente partnership with Spain on the North and pacifying its East coast, it necessarily aims to maintain the convention on border demarcation plans to the West and the maritime route to the South. This is the key of the  “SBD” plan initiated by the Moroccan Kingdom since his Majesty Mohmed VI took power. Consider Spain’s strategic setting and political stability, Morocco is sure to endorse the bilateral relations as the two previous Mediterranean partners were signed in Rabat including to reconstruct Morocco—Spain The good neighborliness principle agreements. It will help northern frontiers areas get an alternative transit route and also ease the local economics, as much an important part of the SB as the economic corridor between Morocco and Spain.

Given the Spanish domestic opinion, there is still a positive attitude about long-term cooperation on a strategic partnership among the kingdom of Morocco and Spain, even considering some temporary problems between the two in irregular migration. For instance, at the first Morocco-Spain Immigration and Security meeting on November 20, Spain’s Interior Minister Fernando Grande-Marlaska remarked that despite the disputes at the moment, Madrid has a long-standing relationship with Rabat and the current politics would not harm that, because it’s a political situation. 

To conclude, diplomacy is a key process based on negotiation, persuasion, and compromise. On the one side, a static and steady Morocco-Spain Strategic relationship is decisive for both and the globe as a whole. To that end, the Kingdom of Morocco has shown its motivation to share with Spain its development experiences, practices, and inclusive security governance approaches. In doing so, geopolitical features should never be the hindrances to Rabat-Madrid strategic cooperation. Rather, Spain could serve as a dynamic bridge between Morocco and EU countries, and Morocco and North Africa.

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