According to the Advocate General of the EU Court of Justice Melchior Wathelet, the Fisheries Agreement concluded between the EU and Morocco is invalid because it applies to the Western Sahara and its adjacent waters
By concluding that agreement, the EU was in breach of its obligation to respect the right of the people of Western Sahara to self-determination and not to recognise an illegal situation resulting from breach of that right and has not put in place the safeguards necessary to ensure that the exploitation of the natural resources of Western Sahara is for the benefit of the people of that territory
Western Sahara is a territory in North-West Africa, bordered by Morocco to the north, Algeria to the north-east, Mauritania to the east and south and the Atlantic to the west. Currently, the greater part of Western Sahara is occupied by Morocco, which considers it to be an integral part of its territory. A smaller part of that territory, in the east, is controlled by the Front Polisario, a movement which seeks to achieve the independence of Western Sahara.
The EU and Morocco concluded in 1996 an association agreement, in 2006 a partnership agreement in the fisheries sector (‘the Fisheries Agreement’) and in 2012 a liberalisation agreement with respect to agricultural products, processed agricultural products and fish and fishery products. By judgment of 21 December 2016, the Court of Justice, before which an appeal had been brought against the judgment on an action brought by the Front Polisario against the Council of the European Union, held that the association agreement and the partnership agreement concluded between the EU and Morocco were not applicable to the Western Sahara. That case did not, however concern the Fisheries Agreement, and consequently the Court gave no ruling on the validity of that agreement in its judgment.
In the UK, the Western Sahara Campaign (WSC) is an independent voluntary organisation whose aim is to support the recognition of the right of the people of Western Sahara to self-determination. WSC claims, before the High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court) that the Fisheries Agreement concluded by the EU and Morocco and the acts approving and implementing that agreement4 are invalid in so far as that agreement and those acts apply to the territory and waters of Western Sahara.
WSC consequently considers that the UK authorities are acting unlawfully in implementing that agreement and, in particular, granting preferential tariff treatment to products originating in Western Sahara that are certified as products originating in the Kingdom of Morocco.
The Advocate General states that the people of Western Sahara have thus far been deprived of the opportunity even to exercise the right to self-determination on the conditions set out by the United Nations General Assembly. Western Sahara was integrated into the Kingdom of Morocco by annexation without the people of that territory having freely expressed its will on the matter. Since the Fisheries Agreement was concluded by Morocco on the basis of the unilateral integration of Western Sahara into its territory and Morocco’s assertion of sovereignty over that territory, the people of Western Sahara have not freely disposed of its natural resources, as is however required by the right to self-determination. Accordingly, the fisheries exploitation by the EU of the waters adjacent to Western Sahara established and implemented by the contested acts does not respect the right of the people of Western Sahara to self-determination.
Since the assertion of Moroccan sovereignty over Western Sahara is the result of a breach of the right of the people of Western Sahara to self-determination, the Advocate General concludes that the EU has failed to fulfil its obligation not to recognise the illegal situation resulting from the breach, by Morocco, of the right of the people of Western Sahara to self-determination and also not to render aid or assistance in maintaining that situation. For that reason, in so far as they apply to the territory of Western Sahara and to the waters adjacent thereto, the Fisheries Agreement and the acts approving and implementing that agreement are incompatible with the provisions of the Treaties that require of the European Union that its external action should protect human rights and strictly respect international law.