Divisive Fish Pact possibly referred to European Court of Justice
Is the new one-year EU-Morocco fish deal in line with international law with respect to the socio-economic interests and the exploitation of the natural resources of Western Sahara? That is the question the European Parliament may raise with the European Court of Justice.
A Motion for Resolution by MEPs Raul Romeva i Rueda (Greens) and Andrew Duff (ALDE), supported by 76 other Members of European Parliament, demands the EU-Morocco Fisheries Partnership Agreement (FPA) be referred to the European Court of Justice, for an advisory opinion on its validity under international law.
If a majority of MEPs supports the Resolution, this will lead to the first attempt to use Parliament’s new powers, awarded under the Lisbon Treaty, to address the ECJ on a matter of legal uncertainties concerning an EU international agreement.
"The prolongation of the Moroccan fisheries agreement gives rise to legal uncertainty on both substantive and procedural grounds. Parliament has a duty to see that the EU's Treaty obligation to uphold international law is fully respected", said Andrew Duff. "I hope that MEPs will agree to give the Court of Justice the chance to examine the proposed Agreement more carefully than the European Commission seems to have done in its negotiations with Morocco".
The vague territorial application clause of the FPA allows European vessels to fish in the waters off the coast of Western Sahara, a territory which is not recognised as part of Morocco by the United Nations. An approach that lawyers at the UN and in the EU have said violates international law.
A 2002 UN Legal Opinion on economic activities in Western Sahara states that the usage of the territory's natural resources must be carried out in accordance to the wishes and the benefits of the people of the territory.
In 2009, the European Parliament’s legal services issued an Opinion stating that the FPA cannot be considered lawful, as there is no proof that the Saharawi people benefit from the agreement, or that they had ever been consulted on it.
No documentation has yet been presented by the European Commission as to whether the local people benefits from or agrees to the fish pact.
"Politically, it is a blot on the EU's foreign policy, but its compatibility with international law is also highly questionable. For this reason, we are seeking an opinion from the European Court of Justice on the legality of this agreement. With the consent of the European Parliament required to conclude this agreement, it would be irresponsible to proceed without such legal certainty", Raül Romeva commented after tabling the resolution.
"If the Court upholds our complaint, I expect the judges either to cause the Agreement to be suspended or to recommend that the non-self governing territory of the Western Sahara should be specifically excluded from its scope", states Duff.
When the FPA expired in February this year, the European Commission chose to pursue a one-year extension with Morocco, until 2012 – thereby ignoring Parliament’s stance on the questionable validity of the agreement. The Commission has always maintained that fishing Saharawi waters through a fish deal with Morocco is perfectly legal. Oddly enough, in backing up that claim, it keeps referring to the 2002 UN Legal Opinion. Meanwhile the author of that Opinion, Dr. Hans Corell, has uttered his discontent with the Commission’s misuse of his legal analysis on multiple occasions.
The European Parliament plenary is expected to debate and vote on the referral within the next month. The Parliament last year also demanded the Moroccan government to uphold its international obligations regarding the natural resource exploitation of Western Sahara.
The EU considers to pay Morocco to fish in occupied Western Sahara. An EU-Morocco Fisheries Agreement from 2013 would be both politically controversial and in violation of international law.
The international Fish Elsewhere! campaign demands the EU to avoid such unethical operations, and go fishing somewhere else. No fishing in Western Sahara should take place until the conflict is solved.
