On January 10, Melchior Wathelet, Advocate General of the Luxembourg-based ECJ (European Court of Justice), made the comments that EU-Morocco fisheries agreement should be declared null and void because it includes Western Sahara.
“The fisheries exploitation by the EU of the waters adjacent to Western Sahara established and implemented by the contested acts do not respect the rights of the people of Western Sahara to self-determination,” said Wathelet in his January legal opinions, stressing that his concerns were grounded in a firm belief that any such exploitation should primarily benefit the population of Western Sahara.
Although Wathelet’s comment came as no surprise to European legal and political experts—he was behind a similar move that targeted Morocco-EU agricultural agreements in 2016—it came at a particularly crucial moment, especially given the fact that the European Commission and several other relevant authorities had made it known that they were more inclined to secure a long-standing strategic partnership by renewing the fisheries deal that is set to expire in July 2018.
But while not binding on the ECJ, the Advocate General’s legal opinions are usually highly valued, heeded and, more often than not, adopted by the court. And so, one week from now, on February 27, as judges of the ECJ convene to deliberate on the “legality” of EU-Morocco fisheries agreement, will they, in total disregard of international law and outright dismissal of expert’s overwhelming unanimity on the indispensability of Morocco-EU relations, decide to side with Wathelet?
For many experts, partnership with Morocco is an asset that the EU cannot, should not, afford to lose. The Morocco-EU fisheries agreement, which was initiated in 1996 and has since known four renewals, entails the exploitation of Moroccan fishing products by about 120 vessels from 11 EU countries (Spain, Portugal, Italy, France, Germany, the Netherlands, etc.). And for many such countries, cooperation with Morocco should not only be preserved; it should be strengthened. Morocco, they argue, is not just a crucial trade partner, but it is also an indispensable ally, especially in terrorism and migration-related matters. The Spanish government, for example, has recently declared that renewing the deal will be critical in advancing bilateral relations between the two countries.
Willy Fautré, a human rights advocate and EU politics expert says that Morocco is “an asset that EU cannot put at risk.” For him, if EU decides to follow Wathelet in annulling the fisheries deal, it will lose an effective tool of “inducing positive changes” in Moroccan domestic politics. The agreement, Fautré points out, is an essential “instrument of soft power” for the EU in Morocco. And so ending the fisheries deal would create unwarranted “tensions” and “undermine EU’s bargaining power.”
Question of Legal competence
But while politicians and EU officials object to Wathelet’s opinions by pointing out Morocco’s centrality as an EU financial and trade partner, legal experts and academics are pointing towards the legality of the whole ongoing procedures, questioning ECJ’s right to meddle in the EU’s foreign policy with third parties.
In this highly contentious dossier, as the ECJ embarks upon the troubled waters of international politics, ECJ judges, says Jeanne Laperrouze in a recent op-ed article, will have to answer a set of fundamental questions: “Is the ECJ legally competent to deliberate on EU’s deals with third countries? Does an association such as WSC (Western Sahara Campaign) have the right to challenge the legality of an international agreement?
As a reminder, WSC, which is a UK-based pro-Polisario lobbying group campaigning for the right to self-determination of Western Sahara, was the same that filed the charge against the supposed illegality of EU-Morocco fisheries deal. The charges were first addressed to Britain’s High Court of Justice which, deciding that it was incompetent to deliberate on such a dossier, chose to transfer the issue to ECJ, asking for legal counsels.
“Only those who are subjected to international law (states and organizations like the UN or the EU),” writes Laperrouze, “have the legal competence to demand that an international agreement be annulled.” For her, neither ECJ nor WSC have the right to question the legality of an international agreement. So, by interfering in the issue, the ECJ will be acting in blatant disregard of international law, given that such a move is the sole prerogative of the UN’s Security Council.
Jean Claude Martinez, a law professor at the Panthéon-Assas University, a leading law faculty in France, has also said that “the arbiter role” in a disputed territory should be left to the UN. As such, he suggests, aside from ECJ’s lack of legal competence in the present dossier, it is even more ironic and inconceivable that EU should prejudice its long-standing partnership with Morocco on the basis of claims by a third party that has no judicial personality.
Following the Advocate General’s recommendations would be “ludicrous”, Martinez writes, underlining that such a move would embolden other secessionist movements elsewhere, setting “dangerous precedent.” Therefore, he concludes, “ECJ judges should make the right call” by not interfering with the renewal of the fisheries agreement, which in turn, he contends, will prevent “a chain reaction that risks shaking the EU at its core.”
But more important than all these objections from legal experts and informed observers is the official position of the European Commission.
A number of senior officials at the organization’s governing body have recently raised doubts on the “hidden agenda” of the Advocate General’s position, calling his opinions “politically motivated” and ignorant of “the depth and richness of Morocco-EU relations.”
More importantly, the DGMARE study, a European Commission-sponsored investigation, has recently come to the conclusion that the deal is “vitally important” as a key factor in promoting peace, security, and unprecedented socio-economic development in southern Moroccan provinces, the locale of the disputed agreement.
With annual yields of 83,000 tons of fishing products amounting to €80 million in financial returns, the agreement, according to the study, is “efficient”; has a “positive impact” in the lives of local populations; and “contributes to the socio-economic interests” of all parties involved. The study has also found that 75% of the economic benefits of the agreement are enjoyed by locals, with numerous jobs (170,000 direct employment and 500,000 indirect employments) created in recent years.
What is more, colossal investments by the Moroccan government to modernize infrastructures and improve living standards in the South are no longer subject to dispute. This is clearly an essential element that invalidates the Advocate General’s claim that the agreement does not benefit the local people.
For the European Commission, after Brexit, there is a self-evident and pressing need to maintain and-if need be-strengthen relations with strategic partners. Should ECJ judges fail to disavow Wathelet’s position, the EU will be losing an invaluable asset which has continuously proven indispensable in helping Europe on various critical fronts. Morocco, too, would surely be affected, but the Kingdom can, in time, turn to another partner to exploit its huge maritime resources.
Therefore, in a week’s time, the task of ECJ judges will consist in reversing the doomsday clock that the Advocate General has initiated. Or, as Jean Claude Martinez has so pithily put it, “on February 27, it will be a great folly to break the agreement.”
By Tamba François Koundouno