EU court judgment could help clarify Western Sahara legal status for investors

Potential landmark decision from European Court of Justice

The legal status of the disputed Western Sahara region – an issue that has long been on investor radar screens – could be closer to clarification with a judgment today at the European Court of Justice, the bloc’s top court.

The court ruled that a 2006 fisheries agreement between the Morocco and the EU does not apply to the waters off the coast of Western Sahara. Under the agreement the EU pays €30m a year for access to Moroccan waters.

It follows advice from Advocate General Melchior Wathelet, a former Belgian politician. He issued a legal opinion considering Morocco “the occupying power in Western Sahara” given that “the concept of ‘de facto administering power’ does not exist in international law”.

The ECJ ruled that “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… [including] the principle of self-determination.”

As the region does not form part of the territory of Morocco, it adds, the waters adjacent to Western Sahara “are not part of the Moroccan fishing zone referred to in the Fisheries Agreement”.The ruling follows a separate one by the South African High Court over a disputed cargo of Western Saharan phosphate.

Today is the anniversary of the declaration of the Sahrawi Republic, equivalent to July 4 in the US.

The EU case was originally brought by the Western Sahara Campaign (WSC) in the UK which then was referred to the ECJ. WSC is a sister organisation of Western Sahara Research Watch (WSRW), the union-backed group.

WSC UK Coordinator John Gurr told RI before today’s ruling that indigenous political body the Polisario was consulted and approved of the WSC action, in which is represented by human rights law firm Leigh Day.

In a statement today Gurr welcomed the news, saying: “Again the Court has given a clear message to the European Commission that any agreements, whether for fish, other produce or aviation with Western Sahara must have the consent of the Polisario or it will be illegal.”

The Western Sahara issue has involved companies and investors as diverse as Siemens, Canadian phosphate companies, oil firms Cairn and Kosmos, the UK’s NEST and ESG research house Vigeo Eiris.

With reporting by Carlos Tornero.