Instead of seeking 'consent' from the 'people' of Western Sahara as the ECJ has asked, the EU has 'consulted' Moroccan political bodies, and state companies that violate international law and defend the Moroccan occupation.
The Court of Justice of the EU on 21 December 2016 ruled that the EU trade deals with Morocco cannot include Western Sahara, which is under partial Moroccan occupation.
The only way to have agreements covering Western Sahara, is through obtaining the consent of the people of the territory, the Court stipulated.
This has not prevented the EU from trying to enter into a new trade agreement covering Western Sahara - through a deal with the occupier Morocco. The EU Commission has been ignoring the key principles of the judgment. Rather than seeking the consent of the people of Western Sahara, the Commission has resorted to a consultation process of "stakeholders" while already in the process of initialing a deal with Morocco.
Western Sahara Resource Watch (WSRW) has obtained the confidential list of consulted actors that the European External Action Service - the Union's diplomatic service - has been circulating to EU Parliamentarians and Member States. The document is not dated - find the list in the box below. According to the Danish government, in a statement in the Danish parliament on 15 May 2018, the "Commission has informed that it does not intend to publish a list of the groups that are consulted in relations to the admendment of the agriculture agreement, but that information about whom was consulted will be included in the report that the Commission is expected to present at the termination of the negotations..."
There are a few highly questionable aspects regarding the 'consultation process'.
First, instead of applying the notion of "consent", as the Court stresses, the Commission has undertaken a 'consultation'. On top of that, the entire concept of the 'people' of the territory is replaced with the concept of 'population'. The Court never suggested that the 'population' of Western Sahara (which is totally different than the 'people') is relevant to the matter.
Second, the general framework of a new agreement was initialed with Morocco without any contacts with the people from Western Sahara. That happened on 31 January 2018, after the Commission had briefed the Parliament few days earlier that it had not yet undertaken such talks.
Third, and bearing in mind that consulting falls short of the requirement of obtaining consent, most Saharawi groups have not even been included in the consultation process. As stated by the EEAS, only groups that have been registered by the Moroccan government were invited to take part, which immediately rules out practically all Saharawi groups in the occupied territory - bar two who have received some form of registration in 2015 after Morocco had received severe criticism for not registering Saharawi groups in the UN Human Rights Council. Note that both those groups, ASVDH and Al Ghad, have issued statements that they would not participate in a consultation process that undermines their right to self-determination. Critically, the Saharawis living in the refugee camps - having fled the very areas where the Moroccan king cultivates produce that is exported to the EU - are not even heard at all. No less than 89 Saharawi civil society groups have sent a letter to the EU Commission, rejecting the approach of negotiating a deal with Morocco for their homeland without the consent of their political representation, Polisario.
In a hearing in the European Parliament last week, several parliamentarians stated they did not know who the EU has talked with - though at that point the EEAS had already shared the list with a select group of MEPs.
Some remarkable observations can be made with regard to the list itself:
1) A meeting with Polisario on 5 February 2018, that was NOT part of any consultation exercise, is strangely introduced in the list as a consultation meeting. WSRW has asked the European External Action Service in February 2018 what the agenda of the meeting with Polisario was, if the agenda was communicated to Polisario in advance, and has not yet received a response. In the meeting, Polisario condemned the EU's approach of entering into an agreement with Morocco over Western Sahara.
Not only was the false information about Polisario circulated to EU member states: it was also given to Saharawi groups. One Saharawi association negative to the Moroccan illegal occupation received an invitation from the European Commission to a "consultation with a widest possible selection of parties [...] and it is in this sort of exchange of views whereto you are invited to take place, in the same manner as we have already undertaken discussions with Front Polisario on 5 February in Brussels". However, that is a lie, as Polisario never took part in any consultation.
2) Parliamentarians elected at Moroccan elections in the occupied territory, representing parties that fiercely defend the Moroccan occupation of the territory, surely do not represent the people of the territory. WSRW has asked the EEAS whether it recognises Morocco's elections in the territory it holds under occupation as lawful, and has not received any response.
3) The presidents of the Moroccan regional councils are representatives of the Moroccan government, and as such cannot represent the people of Western Sahara, which is a different territory. It is furthermore peculiar that the EU in this aspect applies Moroccan terminology - not UN/EU terminology - on the two administrative provinces. The Moroccan government refers to this area as "le Sud" (the South). However, Western Sahara is 'separate and distinct' from Morocco, according to the Court, and cannot be referred to as 'le Sud'. The term "regions du Sud" was also used by the European Commission in the hearing in the Parliament on 17 May 2018.
4) A number of economic group are referred to, even though the judgment of 21 December 2016 states in its article 106 that the aspect of benefits of a trade agreement is irrelevant when assessing its legality. The business groups do not represent the Saharawi people. Most remarkably is that OCP is included, a state-owned Moroccan company that numerous European private and government investors have blacklisted from their investment portfolios for violating international law. OCP Group's exports from Western Sahara were found in a case at the South African High Court to not be respecting the principles of the 21 December 2016 ruling. The Council on Ethics of the Norwegian Government Pension Fund has labelled OCP's activities as "grossly unethical", as their activities "do not respect the wishes and interests of the local population".
5) Western Sahara Resource Watch is surprised to see its own name in the list of associations that had rejected taking part in a consultation process, as our association has never been invited to a such process. WSRW was indeed invited to an "informal meeting". But WSRW was never requested to actually take part in a formal consultation that would be reported on to Council and Parliament.
6) Four "associations working in the domain of human rights" are included. The first is Morocco's National Human Rights Council - a body established through a decree of the Moroccan government. It is widely seen by Saharawis as not addressing the situation in Western Sahara, nor the right of self-determination. La Commission Indépendante pour les droits de l’homme is lobbying for the inclusion of Western Sahara into the Kingdom of Morocco. L’Observatoire du Sahara pour la paix, la démocratie et les droits de l’Homme is a new acquantance to Western Sahara Resource Watch. Its main agenda seems to be concerned with the situation OUTSIDE of the Western Sahara territory itself. Its website was established the same month as Algeria was up for Universal Periodic Review in the UN Human Rights Council in 2017, and most articles on its site relate to the situation in the Saharawi refugee camps. Half the articles in the English language section on its website are publications of the reports that the Moroccan government has presented to the UN Human Rights Council. Lastly, the EU enlists Association Marocaine de Droits de l’Homme, which is a credible and well respected Moroccan human rights association, but that naturally does not speak in the name of the people of Western Sahara.
Liste des parties prenantes impliquées dans le processus de consultation dans le cadre de l’amendement des protocoles 1 et 4 de l’Accord d’Association
1. Acteurs politiques concernés
Présidents des deux conseils régionaux du Sud:
M. Yanja El Khattat, Présdent du Conseil régional Dakhla-Oued Edahab
M. Sidi Hamdi Ould Errachid, Président du Conseil régional Laâyoune-Sakhia Al Hamra.
Parlementaires provenant du Sahara Occidental
* Brahim Daaif, Parlementaire PJD
* Mouay Zoubeir Habbadi, Parlementaire PAM
Autres acteurs concernés:
* M Mohamed Sidati, Represéntant Frente Polisario
2. Opérateurs économiques
1. Secteur Agriculture
* Association Sahraouie or le Développement et l’Investissements
* Chambre d’agriculture de la région Daklha Oued-Eddahab
* Group d’intérêt économique Agida Dakhla
* Coopérative Ajban Dakhla
* Coopérative Halib Sakia El Hamra
* Coopérative Al Joud
2. Secteur Pèche
* Institut National de la Recherche Halieutique
* Chambre de Pêches Maritimes
3. Agents économiques divers
* OCP Group (et la Fondation Phosboucraa)
* L’Agence du Sud
3. Associations travaillant dans le domaine de Droits de l’homme
* Conseil National des Droits de l’Homme
* L’Observatoire du Sahara pour la paix, la démocratie et les droits de l’Homme
* La Commission Indépendante pour les droits de l’homme
* Association Marocaine de Droits de l’Homme
4. Organisations qui n’ont pas accepté la proposition d’une rencontre dans le cadre de l’exercice:
* Association Sahraoui des Victimes des Violations des Droits de l’Homme
* Association Al Ghad pour les droits de l’homme
* Western Sahara Campaign
* Western Sahara Resource Watch
* Independent Diplomat
* Dans le cadre de cet exercice, et suite à une letre signee par 85 associations sahraouies le 3 Février 2018 concernant l’amendement des protocols, le SEAE a également propose le 7 Février 2018 d’avoir une reconcontre avec une representation de cette société civil sahraoui signataire. Cette invitation n’a pas fat l’objet d’une réponse positive.
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