The Unlawful Appropriation of Waters Adjacent to Western Sahara by Morocco’s New Laws Determining its Territorial Sea and Exclusive Economic Zone

7 mars 2020 Non Par ZOMAD

On February 4th 2020, the Parliament of the Kingdom of Morocco passed two laws: one determining the limits of the Moroccan territorial sea and the other establishing an exclusive economic zone (here). Both texts include waters adjacent to the territory of Western Sahara. This post comments the scope of these two laws in light of international law applicable to the situation of Western Sahara, which implies a simultaneous analysis of the rules applicable to decolonization and law of the sea.

The Status of Western Sahara as a Non-Self-Governing Territory

As a former Spanish colony, Western Sahara has been recognized as a “Non-Self-Governing Territory” in accordance with article 73 of the UN Charter. On this basis, the Sahrawi people has an inalienable right to self-determination and to independence. This right has been confirmed by the International Court of Justice in its advisory opinion of October 16th 1975 on Western Sahara (here, p. 12) and various United Nations resolutions, some of which have furthermore recognized Front Polisario as the legitimate representative of the Sahrawi people (here, §7). The most recent is resolution 74/97 of the UN General Assembly, adopted on December 13th 2019, which supports the process of negotiations started in 2007 between Front Polisario and the Moroccan authorities “with a view to achieving a just, lasting and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara” (here, §2).

More recently, in its advisory opinion of February 25th 2019 that relates to the Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965, the ICJ recalled that, in accordance with paragraph 6 of UN General Assembly resolution 1514 adopted on December 14th 1960, “[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination. (…) The Court considers that the peoples of non-self-governing territories are entitled to exercise their right to self-determination in relation to their territory as a whole, the integrity of which must be respected by the administering Power. It follows that any detachment by the administering Power of part of a non-self-governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination” (here, §160)

International Law of the Sea and Non-Self-Governing Territories

From the standpoint of international law of the sea and maritime rights of non-self-governing territories, several elements must be mentioned. First, Western Sahara’s status as a non-self-governing territory imposes certain obligations on the administering Power, provided for in article 73 of the UN Charter, such as the one to ensure its political, economic, and social advancement. Besides, in its resolution 61/123 of December 14th 2006 on Economic and other activities which affect the interests of the peoples of the Non-Self-Governing Territories (here, §4), the UN General Assembly stated that “[n]atural resources are a heritage of the peoples of the non-self-governing territories and that exploitation and plundering of the marine and other natural resources of Non-Self-Governing Territories, in violation of the relevant resolutions of the UN, is a threat to the integrity and prosperity of the Non-Self-Governing Territories”. This quote reflects what the General Assembly declared in its past resolutions relating to Namibia. In that case, General Assembly stated that “natural resources of Namibia, including its marine resources, are the inviolable and incontestable heritage of the Namibian people (…)” (here, Preamble). It then condemned several times South Africa for “its illegal extension of the territorial sea and its proclamation of an economic zone off the coast of Namibia” (here, §13) and underlined that “the exploitation and plundering of the marine and other natural resources of Namibia by South African and other foreign economic interests, including the activities of those transnational corporations which are engaged in the exploitation and export of the Territory’s uranium ores and other resources (…) are illegal, contribute to the maintenance of the illegal occupation regime and are a grave threat to the integrity and prosperity of an independent Namibia” (here, §16).

Second, the 1982 UN Convention on the Law of the sea (UNCLOS) imposes on States an obligation to act in good faith and in due regard of other States’ rights (articles 2 §3 about territorial sea and 56 §2 about the EEZ). These principles have been applied by extension to the hypothesis of the future restitution of a territory from one State to another in the arbitral award issued in 2015 concerning the Chagos Marine Protected Area (here, particularly §304). In the same vein, the UNCLOS imposes on States a duty to cooperate and a duty of self-restraint regarding marine disputed areas (articles 74 §3 and 83 §3).

Third, it must be emphasized that the above mentioned rules can be applied to non-self-governing territories either because of their customary character, or considering that, according to article 305 §1e), the UNCLOS is open for signature by “all territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters”.

Morocco’s Laws and the Duty of Third States Not to Recognize the Situation

Both laws passed on February 4th 2020 include waters adjacent to Western Sahara in Moroccan territorial sea and EEZ. From Morocco’s perspective, Western Sahara is purely and simply a part of its territory, with no right to independence whatsoever. By adopting these laws, Morocco’s strategic interests are to strengthen its domination on Western Sahara and to foster exploration and exploitation of natural resources coming from this territory and its adjacent waters (which is in fact already and largely the case considering that 91.5% of the total catches in the context of fisheries exploitation established by UE-Morocco’s Fisheries Agreement of 2006 and Protocol of 2013 are taken in waters adjacent to Western Sahara. Here, §272).

Those laws, however, violate international law and the principles mentioned above. Therefore, they are not valid in international law and are not opposable to third States or the EU. To that extent, several remarks can be formulated. Firstly, in two judgements delivered in 2016 (here) and 2018 (here), the European Court of Justice has already drawn the consequences of the mentioned principles, especially the right to self-determination. According to the Court, agreements between the UE and Morocco comprising provisions referring to “the territory of Morocco” or “Moroccan waters” or “waters under its jurisdiction” cannot be interpreted as applicable to the territory of Western Sahara and its adjacent waters. Under these circumstances, it seems logical to consider that the inclusion by the two Moroccan laws of waters adjacent to Western Sahara in the Moroccan territorial sea and EEZ has no effect within the scope of UE-Morocco’s relations. The same reasoning should apply in relations between Morocco and any other third State.

Secondly, it must be added that for any action involving Western Sahara’s territory and its adjacent waters, the free and genuine expression of the will of the Sahrawi people must be obtained. Such a consent from Front Polisario acting as the legitimate representative of the Sahrawi people has not been inquired. Furthermore, the exploitation of natural resources present in the territory of Western Sahara and its adjacent waters could potentially be carried out for the benefit of the Sahrawi people, if and only if Morocco were acting as the administering Power of a non-self-governing territory. However, Morocco cannot be considered as the administering Power since, as the Advocate General Wathelet explained, the status of “de facto administering power” does not exist (here, §223 and more broadly §§221-233). Besides, Morocco does not pretend to be acting as the administering Power considering that, as the European Court of Justice pointed out in 2018, the Moroccan authorities have categorically denied such a status (here, § 72)

Thirdly, from the standpoint of third States and the EU, as the ICJ recalled in its advisory opinion concerning Chagos Archipelago, they are all under the obligation not to recognize the situation deriving from Morocco’s violations of international law considering that the right to self-determination has erga omnes character, which means that all the States have an interest in protecting it. Therefore, each State has the duty to promote realization of the principle of self-determination and to cooperate with other States and with the UN to this end (here, §180).

Denys-Sacha Robin, PhD (University Paris 1 Panthéon-Sorbonne), post-doctoral researcher in International Law of the Sea (University of Angers)