Legality of the EU-Morocco fisheries agreement questioned

Essaouria, Morocco. October, 2008. [Henrik Anderson/Flickr]

A respected international lawyer has published an article, claiming that the fisheries agreement between the EU and Morocco is illegal, as it doesn’t contain a specific reference to the fishing zone off the coast of Western Sahara, and that the UN Security Council (UNSC) should examine the issue.

Hans Corell, Former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, writes in the International Judicial Monitor that UNSC should examine the legality of the EU-Morocco fisheries agreement.

Corell, who, at the request of the UNSC delivered in 2002 a legal opinion relating to the Western Sahara, says that in the meantime, he has followed developments from a distance.

“A very serious question in this context is the fisheries agreement between the EU and Morocco which does not contain one word – apart from the cryptic “sovereignty or jurisdiction” in Article 2 (a) – about the fact that Morocco’s ‘jurisdiction’ in the waters of Western Sahara is limited by the international rules on self-determination. Instead, the agreement and its protocols are replete with references to the “Moroccan fishing zones”, Corell writes.

He further argues that to be legal, an agreement of this nature would have to contain an explicit reference to the fishing zone off the coast of Western Sahara, defined by coordinates.

Corell stresses that the regime for issuing fishing licences within this zone would have to be completely separate from the regime that applies in the Moroccan fishing zone, and that revenues generated by the licences in the zone of the Western Sahara would have to be delivered not to Morocco’s public treasury or equivalent, but to a separate account that can be audited independently by representatives of the people of the Western Sahara.

Against this background, Corell writes that the UNSC should examine the legality of the EU-Morocco fisheries agreement.

“The appropriate way to receive an authoritative answer to this question is for the Council to request the International Court of Justice to give an advisory opinion on the question in accordance with article 96 of the UN Charter. In case the Council is unable to unite behind such action, the General Assembly could take the initiative”, the international lawyer writes.

Corell also writes that companies developing natural resources in the Cap Boujdour area off the coast of Western Sahara, such as Glencore and Kosmos, are also in breach of international law.

Commission spokesperson for environment, maritime affairs and fisheries Enrico Brivio told EURACTIV that the Fisheries Partnership Agreement protocol is in full compliance with international law.

“Western Sahara is a Non-Self-Governing Territory under Moroccan administration. All of the EU's agreements apply to the Western Sahara region”, he said.

Detailed reporting obligations on Morocco on use of Commission sectoral support ensure that the protocol serves the interests of all local population, including that of Western Sahara, Brivio alos said. He added that the protocol's clear reporting mechanism represents an additional tool to monitor compliance with international law.

The Western Sahara is a disputed territory in the Maghreb region of North Africa, bordered by Morocco to the north, Algeria to the extreme northeast, Mauritania to the east and south, and the Atlantic Ocean to the west. Its surface area amounts to 266,000 square kilometres.

It is one of the most sparsely populated territories in the world, mainly consisting of desert flatlands. The population is estimated at just over 500,000.

Occupied by Spain in the late 19th century, the Western Sahara has been on the United Nations list of non-self-governing territories since 1963 after a Moroccan demand.

In 1965, the UN General Assembly adopted its first resolution on Western Sahara, asking Spain to decolonise the territory. One year later, a new resolution was passed by the General Assembly requesting that a referendum be held by Spain on self-determination.

In 1975, Spain relinquished the administrative control of the territory to a joint administration by Morocco (which had formally claimed the territory since 1957) and Mauritania. A war erupted between those countries and the Sahrawi national liberation movement, the Polisario Front, which proclaimed the Sahrawi Arab Democratic Republic (SADR) with a government-in-exile in Algeria. Mauritania withdrew in 1979, and Morocco eventually secured effective control of most of the territory, including all the major cities and natural resources.

Since a UN-sponsored ceasefire agreement in 1991, two thirds of the territory of Western Sahara has been controlled by Morocco and the remainder by the SADR, strongly backed by Algeria. Internationally, countries such as the United States and Russia have taken a generally ambiguous and neutral position on each side's claims, and have pressed both parties to agree on a peaceful resolution. Both Morocco and Polisario have sought to boost their claims by accumulating formal recognition, essentially from African, Asian, and Latin American states in the developing world.

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