Fisheries, the EU and Western Sahara: In line with international law… in the end

On 28 July 2005, the European Union and Morocco agreed upon a fishing agreement. Previously, both parties had adopted similar bilateral treaties in 1988, 1992, and 1995. According to Article 11, the Agreement applied “to the territory of Morocco and to the waters under Moroccan jurisdiction”, an expression used to refer to waters situated to the south of Cape Noun, that is, under the internationally recognised border between Morocco and Western Sahara.

According to article 12, the Agreement had to be applied for a period of four years. In February 2011, in spite of the critics, the EU managed to extend the agreement provisionally one more year. Yesterday, though, the European Parliament rejected the extension of the pact any longer. What happened?The vote at the Parliament was not at all overwhelming: 326 MEPs voted against the extension of the treaty, while 296 parliamentarians, mostly following the Spanish fishing interests, voted in favour and 58 abstained. The commercial interests of Spain on this matter are clear: 100 out of the 119 European vessels that have benefited from this Agreement flutter the Spanish flag. (See our pieces here and here, both in Spanish).

International legal experts like Hans Corell, former UN Under-Secretary General for Legal Affairs, have repeatedly pointed out the inconsistencies between the Agreement and International law. In Mr. Corell’s view, the gravest misrepresentation in defence of the fisheries is that all references to the self-determination of the people of Western Sahara over their resources have been ignored. In 2002, Mr. Corell submitted a legal analysis of the legality of the exploration and exploitation of natural resources in Western Sahara, where he stressed the need to respect not only the alleged interests but also the declared wishes of the people of Western Sahara.

We should not forget that Article 103 of the 1945 UN Charter clearly states that:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Nevertheless, the criticism is not only of legal nature. Several EU States have declared they are not willing to allocate 36 million euro per annum of the EU budget for fishing license payments that go straight into the coffers of the government of one of the “world’s richest royals”, according to Forbes.

The immediate future is rather uncertain. This morning itself, Moroccan authorities urged European boats to get out of ‘their waters’, and the Spanish Government ad interim has rushed to request compensation to the EU. In any case, in a time when the role of EU institutions is highly criticised and when the place of the European Union in the world is generally undermined, it is comforting to see that in the end, in spite of the powerful lobbying of the Moroccan authorities, the European Parliament has acted in accordance to international law. The statement issued yesterday by Marina Damanaki, Maritime Affairs and Fisheries EU commissioner is in a sense reassuring:

If a new fisheries Protocol with Morocco were to be proposed and agreed, it would have to give convincing answers to the key issues of environmental sustainability, economic profitability and international legality.

Koldo Casla



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