Based on positive evaluations, both the Commission and Morocco saw no particular reason to stop their fruitful cooperation in the area of fisheries, which has been in place for 30 years, until the Advocate General of the Court of Justice of the European Union (CJEU) Melchior Wathelet surprisingly recommended the annulation of the agreement on 10 January in his preliminary conclusions. The case had been referred to the CJEU in 2015 by the High Court of Justice (England and Wales) after a UK-based lobbying group had challenged the validity of the fisheries agreement, arguing that it did not benefit local populations in Western Sahara.
Both the EU and Morocco seem to benefit from the fisheries agreement according to an independent evaluation study. Its findings show that the deal not only promotes sustainable development of the fisheries sector through Halieutis strategy projects but also facilitates jobs for Moroccan sailors and fishermen via 1000 boarding contracts per year. In fact, southern provinces of Morocco (also called Western Sahara) account for 66% of the total budget, which corresponds to USD 37 million. Moreover, 75% of the socio-economic benefits of the agreement, such as creation of hundreds of new jobs and improvement of working conditions of tens of thousands of people, are enjoyed by people living in Southern provinces.
Similarly, the gains of the 11 EU countries (Spain, Portugal, Italy, France, Germany, Lithuania, Latvia, the Netherlands, Ireland, Poland and the United Kingdom) involved in the deal largely exceed the EUR 30m EU investment for the support of Moroccan sectoral fisheries policy. In effect, every euro invested created EUR 2.78 value added for the EU.
Mr. Wathelet’s conclusions were announced only two days after the Commission opened negotiations to renew the current fisheries protocol, which is set to expire on 14 July 2018. These non-binding conclusions are supposed to inform the decision of the 15 judges of the CJEU, which will be reached on 27 February. But ironically, they are based on erroneous information according to numerous legal experts.
Mr. Wathelet considers that the current fisheries agreement violates the principle of the permanent sovereignty over natural resources, referring to Western Sahara as an ‘occupied territory’. Yet, in legal terms Western Sahara cannot be defined as such as because it does not fulfil the criteria, stipulated by Article 42 of The Hague Convention: Presence of an enemy state on the territory, exclusion of the legitimate authority and substitution by an occupying authority. In fact, when Morocco succeeded Spain in Western Sahara in 1976 in accordance with the Madrid Agreement, there was no Sahrawi State on this territory, which was part of the Moroccan Kingdom prior to the colonisation.
Moreover, he ignores the legal opinion by the by the Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations Hans Corell of 2002, which recognizes the possibility for Morocco as an ‘administrative power’ to exploit natural resources of Western Sahara.
A similar opinion by the former Belgian Minister of Justice Wathelet was disavowed by the Court in 2016 but if the judges decide to endorse it this time, the EU would risk finding itself in turbulent waters for several reasons.
First, the EU Court has never examined prejudicial questions regarding international agreements signed by the EU so far and this would set a dangerous precedent, as any region or lobbying group in the EU or its neighbourhood (as opposed to states having a legal personality) could contest treaties signed by its central government. A domino effect could occur in Wallonia or Catalonia for instance, which would put the stability of the Union in peril.
Second, if the CJEU follows Mr. Wathelet’s argumentation and starts scrutinising international treaties (which are of the order of international law), it would exceed its remit by incorporating international law into the Union law and assuming the role of the International Court of Justice.
Third, if the Court opts for intervening in conflict resolution efforts, which are outside of the scope of its competences, it could undermine the negotiations led by the UN and toughen the stance of the concerned parties.
Fourth, the CJEU would be exceeding its powers by passing judgement on foreign policy matters, which are a shared competence between the EU and its Member States. Following Mr. Wathelet’s logic would limit the EU’s manoeuvring power in external action, as the Union would have to review all of the treaties it signed with countries facing human rights problems. This would put the entire European Neighbourhood Policy and EU development policy in question, even risking to deteriorate the human rights situation in countries, which actually commit to align themselves with EU standards when signing cooperation and association agreements with the Union.
Finally, even if the EU Court decides to invalidate the EU-Morocco deal, it could not annul it, inter alia, by virtue of the Article 14 of the existing protocol, which requires a 6 month-deadline for such actions. However, such a decision would hamper the EU’s relations with its ally Morocco, as the latter could feel isolated and less cooperative on security issues in the EU’s southern borders, which are threatened by extremist groups in Sahel and North Africa. Given the Polisario Front’s s alleged links to the ISIS, seen as an effort to diversify its resources following the decreasing support from Algeria, it would be wiser for the EU to keep the only stable country in the region Morocco at its arm’s length by enhanced cooperation not only in fisheries but also in other areas, such as security issues, migration, development, anti-radicalisation efforts, economic and trade cooperation and relations with the African Union.