On the 1^st of June 2006 a Fisheries Partnership Agreement (FPA) between the European Community (EC) and Morocco was signed in Brussels.[1] The agreement had been originally initialled on 28 July 2005 by the European Commission and the Kingdom of Morocco and represented the result of a long period of difficult negotiations which had followed the termination of the previous bilateral fisheries agreement between the EC and Morocco in 1999.[2]

The agreement will last for a period of four years and it allows access for Community vessels to Morocco’s Atlantic fisheries. It provides for the granting of 119 fishing licenses for Community vessels (mostly Spanish vessels, but also including vessels from a variety of other EC countries, such as Portugal, France, Italy) and a maximum of 60000 tonnes of pelagic fish shared according to an allocation key between Germany, Latvia, Lithuania, Netherlands, United Kingdom, Poland, Ireland, Spain, France and Portugal.[3] In exchange, the Protocol included in the agreement provides for a financial contribution paid by the Community over the four years set at EUR 144.4 millions plus the fees to be paid by shipowners – around EUR 13.6 millions.[4]

What appears to be a rather uncontroversial and standard technical agreement – which is very similar in all its major aspects to the many bilateral agreements entered into by the EC with non-Member States in the exercise of its competence in the field of fisheries – has sparked at Community level strong criticism, especially by MEPs and the civil society, because of the alleged extension of the geographical scope of the FPA to the waters off the coast of Western Sahara. If the agreement is implemented in the same way as previous agreements were implemented, it will allow EC vessels to fish in Western Sahara’s territorial waters and EEZ thanks to licences granted by the Moroccan authorities.[5] A recurrent claim has been that the agreement and such practice are contrary to international law as they fail to respect the right of self-determination of the people of Western Sahara. As a result of these objections, two legal opinions have been produced by the Legal Service of the Parliament and the Legal Service of the Council, respectively, on the compatibility of the agreement with international law, some amendments have been proposed by the Parliament (and still a large group of MEPs have refused to approve the agreement) and one Member State, Sweden, has eventually decided to cast a negative vote in the Council.[6] However, at the end, the agreement has been approved by the Council without any major amendment, which means that it does not exclude Western Sahara from its geographical scope of application nor that it strengthens the monitoring mechanisms as requested by the Parliament.

The present contribution aims at providing an exhaustive legal analysis of the issues involved in an assessment of the compatibility of the FPA with international law, with special consideration for the distinct status of Western Sahara as a Non-Self-Governing Territory (NSGT) and the principle of sovereignty over natural resources of the people of Western Sahara. The article starts off setting out the historical and legal background of the question of Western Sahara. It then focuses on the analysis of the FPA and the practice related to previous fisheries agreement entered into by Morocco and EC. In the third section it concentrates on the question of validity of the FPA, with special reference to the competence of Morocco to enter into an international agreement conferring rights and obligations with respect to Western Sahara and to the applicability of the grounds of invalidity related to the infringement of jus cogens rules. In the fourth section it focuses on the compatibility of the FPA with international law, especially focusing on the obligations of Morocco and the EC towards Western Sahara: special regard is given to the question of sovereignty over natural resources in Western Sahara and to the legal opinions rendered in 2002 by the UN Legal Office and in 2006 by the EU Council’s and Parliament’s Legal Services. Moreover, the question of the application of the law of belligerent occupation to Western Sahara is addressed, with a view to identifying the rights and obligations imposed upon Morocco by such application, with special regard to the use of natural resources found on the territory of Western Sahara. Finally, the article concludes by reflecting on the possibilities of challenging the FPA before the International Court of Justice (ICJ), the European Court of Justice (ECJ) or a domestic court and on the broader implications of its signature for the present diplomatic stalemate in the solution of the Western Sahara dispute.

The main thesis presented is that the agreement is not per se contrary to international law as its text does not include Western Sahara; however, if its interpretation and practice should evolve to include Western Sahara in its geographical scope of application, as it occurred with previous EC-Morocco fisheries agreements, it may be considered invalid with regard to Western Sahara due to a manifest lack of legal competence of Morocco related to the Territory and contrary to international law, insofar as it does not keep into due account the will of the people of Western Sahara. As a result, the agreement may be considered non-opposable with regard to the Western Sahara and may give rise in the future to a right to compensation against the European Community for the use of natural resources by the people of Western Sahara and a possible future State of Western Sahara. As things stand today, the chances that such right may be enforced are very slim.     

 

 

(see the pdf file)

 

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