Denmark accepts continued EU fisheries in occupied waters
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The Danish government has started arguing for its own fishing interests in occupied Western Sahara and challenges the recent developments in the Court of Justice of the EU. A request to continue EU fisheries in Western Sahara was issued to Danish legislators just one day after the EU Court's General Advocate found that practice invalid.

Published 15 January 2018

In a briefing note, sent to the Danish Parliament on 11 January 2018, the Danish Government accepted the European Commission’s proposal to commence negotiations for a new fisheries agreement with Morocco. In the note, the Danish Government systematically refers to "the Moroccan fisheries zone", even though nearly all EU-flagged fishing is in fact taking place offshore occupied Western Sahara. 

The Danish government now wants Denmark's parliament to support the European Commission, to enable the latter to negotiate a new fisheries agreement with Morocco, applicable from July 2018 when the current protocol expires. The recommendation from the government will be discussed in a committee meeting in the Danish parliament later this week. 

In December 2016, the EU Court of Justice issued a final judgment in a case brought forth by the UN-recognised representation of the people of Western Sahara - the Polisario Front - on the EU-Morocco agriculture agreement. The Court concluded that no EU trade or association agreement could be applied to Western Sahara due to its "separate and distinct" status, without the consent of the people of that territory.The request to the Danish Parliament was made only one day after the General Advocate of the Court of Justice specifically stated that the EU fisheries agreement with Morocco cannot apply to waters off Western Sahara. See the General Advocate’s strong opinion of 10 January 2018 here.

In the opinion, the general-advocate argues that international humanitarian law and human rights of the Saharawi people of the occupied Western Sahara must be respected, and that EU-Morocco fisheries agreement therefore cannot apply to the territory's waters. A judgment is expected in approximately three months. The Danish Government thus recommends a fisheries practice that the General-Advocate finds to be invalid.

The EU has traditionally been siding with Morocco and France, two countries that undermine the respect for international legality in the territory. The Commission has been negotiating these agreements with Morocco even though Morocco has no right to be present in the occupied territory. The tradition of EU fisheries in the territory originates from a secret agreement that the Franco regime signed with Morocco when allowing the former Spanish colony to be illegally occupied in the autumn of 1975. This practice and undermining of European law is now apparently supported by Denmark. 

The main lines of the briefing note are that the current protocol is legal and environmentally sustainable. But the government also considers that due to the Brexit talks, the Danish government has an opportunity to profit from a future agreement with Morocco by gaining fishing licences in the occupied waters that the Brits formerly held.

Problematic points
The note to the Danish parliamentarians contains numerous grave incorrect assertions of law and practice, conclusions either drawn by the Danish government itself, or cut-and-pasted from the Paris-influenced Commission. The note by the Danish Government;

  • Misreads or ignores applicable human rights. The Danish Government stated in its letter to the Parliament that the current fisheries protocol (which expires in July 2018) "is implemented in accordance with Article 1 of the Association Agreement concerning development of dialogue and cooperation and Article 2 concerning respect for democratic principles and human rights". This claim is not supported by evidence. The judgment of the CJEU of 21 December 2016 and the opinion of the General Advocate of 10 January 2018 are exactly that the agreements fail to respect the Saharawi people's right to self-determination - which is a human right.
    "I consider that the right to self-determination is not subject to the conditions governing the possibility of relying on the rules of international law because it forms part of human rights", the General Advocate writes. He substantiates this with references to the key UN covenants - which, needless to say, Denmark has ratified. It is this right that was not respected in the EU's approach to the territory, as seen both from the CJEU judgment of 21 December 2016 and the Advocate General.
    It is not clear how the Government of Denmark can view the right to self-determination or human rights as having been respected in the current protocol, considering that no consent has been obtained from the representatives of the territory's people. 
  • Gravely misinforms about international law. 
    An entire page of the brief (page 4) is spent on a list of bullet points that are set out to support the following heading: 
    “In view of securing sustainable and responsible fisheries, as well as contribute to a strict respect for international law, the Commission proposes negotiation targets similar to the previous negotiations."
    However, not a single of the bullet points addresses the prerequisites of legality as established by the Court of Justice of the EU. In this list, the Danish Government thus gravely misinforms its Parliament. 
    The judgment of 21 December 2016 is unambiguous that trade agreements with Morocco cannot include Western Sahara unless the people's consent has been obtained. The General-Advocate finds that the entire inclusion of Western Sahara renders the fisheries protocol invalid. 
    Nothing of this is included in the overview sent to the parliament. 
  • Legitimizes employment of settlers. Remarkably, the Danish government reproduces prerequisites from the Commission that the protocol must "benefit the population of the non-self-governing territory of Western Sahara". This is not at all what the Court of Justice of the EU is asking for. What the "population" is benefiting from, is not even mentioned by the Court - as the 'population' are mostly Moroccan settlers. What the Court does state, is that the 'people' is to give its consent. The 'population in Western Sahara' and the 'people of Western Sahara' are highly different concepts, and the court addresses only the latter.

    This point becomes evident in another reference in the Danish briefing note; that the current protocol "has contributed to the employment of approximately 500 people in the EU and 200 Moroccan sailors, whom have improved their competence level". In other words: the beneficiaries are Moroccans. There is no explanation in the note as to why Moroccans are to benefit, while most fisheries are not taking place in Morocco at all. 

    Employing Moroccan settlers through EU funded programmes in the occupied territory is an argument against, not for, the continuation of that agreement. 
  • Accepts Morocco’s administrative divisions. The note makes references to "two regions of Western Sahara"; the Danish government thus seemingly accepting the illegal Moroccan administrative division of the territory into Moroccan regions. 
  • Suggests landing of Western Sahara catches in Morocco. The note makes reference to a suggestion from an evaluation report stating that landing of fish should take place in Moroccan ports. It is not clear why fish caught in Western Sahara waters are to be landed in Moroccan ports, or whether this at any level can be legal. The General Advocate, quoting the European Commission, notes that 91,5% of the catches are made in Western Sahara's waters. The CJEU judgment of 21 December 2016 is clear that Western Sahara is a "separate and distinct" territory from Morocco. 
  • Accepts benefit to Morocco. According to the Danish briefing note, the Commission is to develop a responsible fisheries policy "in line with the country's development targets". But what is the relevance of Morocco’s development targets, considering that near none of the fisheries under the protocol are taking place in Morocco? The note does not make references to the fact that the sectoral support given to Morocco are not at all located in the country of Morocco, but in the non-self-governing territory of Western Sahara. WSRW has extensively written how the EU funding mostly, and controversially, are allocated to Morocco’s projects in the occupied territory. It does not refer to the possible development targets of the owners of the fish in question, namely the people of Western Sahara. 
  • The briefing does hardly refer to Western Sahara at all, and nearly nothing about the legality. This is the entire paragraph on Western Sahara (WSRW's translation): 
    "The political situation regarding Western Sahara. 
    The Court of Justice of the EU on 21 December 2016 ruled on a case regarding the free trade agreement between the EU and Morocco. It is expected that the negotiation mandate for a new protocol will be in accordance with the judgment, will address the territorial scope of the protocol. 
    Two international cases are pending regarding the fisheries sector and Western Sahara - one case in which Polisario demand the fisheries protocol annulled, and another case in which UK High Court have requested an assessment of the validity of the Fisheries Partnership Agreement".

    The text does not at all even consider the legal consequences for the EU, the sector or the member states. It appears that EU law is totally removed from the consideration. This is what is mentioned under the point "Consequences": "The suggestion to start negotiations over a new protocol has in itself no legal, state finance or administrative consequences, but a potential signing of a new protocol will have a possible effect on the EU budget. The complete financial compensation under the existing protocol is 30 million Euros. Denmark pays approx 2% of the EU's total budget, corresponding to a state expense for the agreement at 600.000 Euros over 4 years". 
  • Presupposes legality of fisheries before consent is obtained
    The note specifies that in order for the fisheries to be legal, sustainable and responsible, the Commission must have a mandate "to secure that EU vessels, fishing on small pelagic, demersal and highly migrating species, have access to the waters under the Moroccan sovereignty and jurisdiction, including the waters to the south of 27°40' N" (WSRW's translation)". This is the contrary of the Court opinions. And it presupposes that the Commission expects fisheries to take place in Western Sahara after talks with Morocco (which is not the legitimate party in this regard). The inclusion of waters south of the 27°40' N" are only waters off Western Sahara (and the location of near all the fisheries), and cannot be legal if negotiated with Morocco, the neighbouring country. 

    The Danish Government, finally, lays out the expectations to the mandate: 
  • must “benefit the population of Western Sahara.”
  • that the protocol includes further guarantees that "Morocco is honoring its obligations under international law concerning Western Sahara, including reporting on economic and social effects of the sectorial support".
  • "include a clause about the consequences of violating human rights and democratic principles” 

    The irony is that Morocco has, during 41 years of illegal occupation, refused the Saharawi right to self-determination, and that entering into such an agreement is already violating those rights. All references to human rights and international law are violated the very same minute the agreement is signed between the EU and Morocco.

    Voted against previous agreements

    The Danish government has twice voted against previous fisheries agreements between the EU and Morocco, naming Western Sahara and the lack of environmental protection as the main reasons.

    In 2016, the Danish parliament also unanimously passed a motion on Western Sahara, urging Danish companies and the Danish public sector not to trade with Africa’s last colony.

    Last year, the Danish Minister of Foreign Affairs Anders Samuelsen said he supported negotiations for other trade agreements between the EU and Morocco that included Western Sahara. Although “Western Sahara is not a priority for Denmark,” he told the Foreign Affairs Committee. 

    Denmark has in the past stated that it supports the UN peace process in Western Sahara. It is not clear in last week's recommendation to the Danish parliament how the signing of illegal and lucrative fisheries agreement with the occupying power without the consent of the Saharawi people, constitutes a contribution to the peace process. Morocco has the last years refused to cooperate with the UN on negotiating a solution to the conflict and has deported UN troops from the territory.

    The briefing note from the Danish government can also be downloaded here

Here is the EU Council's legal advice on fishing in occupied waters

Before voting on the new EU-Morocco fish deal in 2018, extending into occupied Western Sahara, several EU Member States asked for legal advice that would determine their vote. WSRW today publishes that influential legal opinion, which appears to miss the ball entirely.
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