Morrocco has no official claim to the waters off Western Sahara, so why, Linnéa Engström asks, should the EU pay Rabat for the right to fish there?
Linnéa Engström is a Swedish Green MEP and first vice-chair of the European Parliament’s Committee on Fisheries.
In December 2016, the European Court of Justice (ECJ), through strict interpretation of international law, ruled that the Western Sahara was not part of Morocco and that no EU-Morocco trade deals should apply to any part of the Western Saharan territory. The ruling presents the first time the European court has taken a stance on Morocco’s claims over the territory.
Inherently, this ruling also means that fishing rights sold by Morocco cannot by any means apply to the territory off the coast of Western Sahara. The ECJ explicitly declared that the Council had disregarded its obligation to ensure that International Law was respected before the FPA, and its protocols, were signed. The ruling also states that Front Polisario should give their consent on behalf of the Sahrawi people to any activity regarding their natural resources.
It is now clear that the EU must do its utmost to make sure that any agreement that entails the exploitation of resources in Western Sahara protects the right to self- determination of the Sahrawi people, as well as their right to benefit from the natural resources of their territory. This will be crucial for the EU to uphold the credibility of its commitments towards sustainability and ensuring compliance with EU fishing laws and principles (including human rights) embedded in its Sustainable Fisheries Partnership Agreements.
Under the UN Law of the Sea (UNCLOS), states may declare exclusive economic zones (EEZs) of up to 200 nautical miles off their coast. Morocco did that in 1981 along the Atlantic coast. However, the southernmost point onshore from which the EEZ is derived is 27o 42’ N, whereas the border between Morocco and the Western Sahara is 27o 40’ N, slightly to the south. A search on the site of Oceans and Law of the Sea, the repository of states’ legislation on, among other things, their EEZs, shows nothing whereby Morocco has claimed sovereignty or jurisdiction over the waters off the coast of Western Sahara.
On the other hand, in 2009, the Sahara Arab Democratic Republic (SADR) declared its maritime zones, including an EEZ of 200 nautical miles, beginning at 27o 40’ N as the northern extremity.
The agreement of 2006 defines the Moroccan fishing zone as “the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco” which essentially leaves the geographical scope unclear. But if Morocco has not declared any sovereignty over the waters off Western Sahara, it is difficult to see why a) Morocco has the right to sell fishing rights there, and b) why the EU needs to pay Morocco for fishing in waters not under its jurisdiction.
Polisario must now develop its general policy on the management of the maritime resources it seeks to control. If UNCLOS gives a state the right to the resources in its waters, it also obliges them to accept the responsibilities of management that go along with it, rights and responsibilities are two sides of the same coin. Now is the time for Polisario to develop at least a general policy, committed to sustainability and food security. This is especially relevant as many of the resources are shared stocks, imposing a special responsibility under international law. International law clearly recognises the rights to natural resources as part of the right to self-determination.
After these crucial steps have been taken, Front Polisario should have the right, as the official representatives of the Sahrawi people, as recognized by the UN, to negoiate a sustainable fisheries partnership agreement with EU.