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Moroccan fishing boats. (Photo: Terje Engoe / Copyright: FIS)

CJEU validates fisheries agreement with Morocco, but excludes Western Sahara

EUROPEAN UNION
Tuesday, February 27, 2018, 21:50 (GMT + 9)

The Court of Justice of the European Union (CJEU) concluded today that the Fisheries Agreement celebrated between the EU and Morocco is valid in so far
as it is not applicable to Western Sahara and to its adjacent waters.

This ruling contradicts the previous conclusions of the general counsel of the CJEU, Melchior Wathelet, who in January said that the agreement should be declared invalid because it involves the Western Sahara region.

The case was brought to the The Court of Justice of the European Union by the Supreme Court of the United Kingdom in response to the complaint filed by the Western Sahara Campaign (WSC).

In today’s judgment, the Court holds, in the first place, that it has jurisdiction to assess the validity of acts approving the conclusion of international agreements concluded by the EU, and to assess whether such agreements are compatible with the treaties and the rules of international law which bind the EU.

The Court examines, in the second place, that the Fisheries Agreement is applicable to the "territory of Morocco", an expression equivalent to the concept of "territory of the Kingdom of Morocco" in the Association Agreement.

As the Court has previously held in its judgment of 21 December 2016, that concept itself refers to the geographical area over which the Kingdom of Morocco exercises its sovereign powers under international law, to the exclusion of any other territory, such as that of Western Sahara. In those circumstances, if the territory of Western Sahara were to be included within the scope of the Fisheries Agreement, that would be contrary to certain rules of general international law that are applicable in relations between the EU and Kingdom of Morocco, inter alia the principle of self-determination.

The Court notes that the Fisheries Agreement is applicable to "waters falling within the sovereignty or jurisdiction" of the Kingdom of Morocco. It explains that in accordance with the UN Convention on the Law of the Sea, the waters over which a coastal State is entitled to exercise sovereignty or jurisdiction are limited exclusively to the waters adjacent to its territory and forming part of its territorial sea or of its exclusive economic zone. The Court therefore holds that, taking account of the fact that the territory of Western Sahara does not form part of the territory of the Kingdom of Morocco, the waters adjacent to the territory of Western Sahara are not part of the Moroccan fishing zone referred to in the Fisheries Agreement.

Lastly, the Court examines the territorial scope of the Protocol to the Fisheries Agreement. In this regard, it notes that although that Protocol does not contain any specific provisions on that subject, the Court states that several of its provisions use the expression "Moroccan fishing zone". That expression is the same as that to be found in the Fisheries Agreement, which defines it as "waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco".

The Court concludes that the "Moroccan fishing zone" under the Protocol does not include the waters adjacent to the territory of Western Sahara.

The CJEU therefore holds that, since neither the Fisheries Agreement nor the Protocol thereto are applicable to the waters adjacent to the territory of Western Sahara, the EU acts relating to their conclusion and implementation are valid.

The fisheries protocol between the EU and Rabat entered into force in February 2007 for a period of four years and was renewed twice, the last time in 2013. The current agreement expires in July of this year, and the EU governments They agreed last week to start negotiations with Morocco to renew it.

The agreement allows access to Moroccan waters to some 126 community vessels from 11 EU countries, among which Spain is the most benefited Member State.

Related articles:

- Euro-Moroccan commission relies on favorable ruling by CJEU on EU-Morocco fishing agreement
- EU-Morocco fisheries agreement should be declared invalid, according to legal adviser

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