The EU Court's rulings distinguishing Western Sahara from Morocco seem to have fallen on deaf ears in Brussels, as representatives of the Commission insist on proceeding as before.
On 17 May, the European Commission was invited to the European Parliament's International Trade Committee to a hearing on the ongoing trade and fisheries negotiations between the EU and Morocco. Both the trade and fisheries partnership with Morocco are being renegotiated, after the Court of Justice of the EU (CJEU) had found the agreements not to be applicable to Western Sahara.
However, during the hearing, the Commission displayed a grave misreading of the CJEU judgments, showing that the current negotiations are not taking into account the most basic elements of international law and EU case law.
The hearing - "State of play of the negotiations with Morocco regarding the agreements adapting the protocols on rules of origin in Association Agreement and Fisheries Agreement" - could count on the participation of a representative of DG MARE , the Commission's fisheries department, and of DG TAXUD, the taxation department.
The fish representative, tasked with negotiating a new fish deal with Morocco, stated that three elements needed to be present in a new deal: the scope needs to include Western Sahara; the benefits of the agreement must be redistributed to the "affected population"; and a reference to the UN peace process. DG MARE stressed that the current fisheries protocol was already beneficial to Western Sahara, as most of the sectoral support granted under the deal were spent in "the regions of the south".
The representative of the taxation department, tasked with the negotiations on the trade deal, did not provide details on the trade arrangement that the EU Commission has already initialed with Morocco in January, to allow trade to continue from Western Sahara. He did specify that under the new proposal Western Sahara products would enjoy the same preferential treatment as Moroccan products, rules of origin would apply with necessary adjustments to products originating in Western Sahara and the monitoring of compliance with the agreement would be conducted by the Moroccan authorities - all the while expressing support for the UN process to solve the conflict.
"We ask the Commission to start applying the terminology of the UN and the Court. The EU Court has now stated twice that an EU agreement with Morocco covering Western Sahara would violate international law, specifically the right to self-determination. The Court is also crystal clear that the concept of 'benefits to the locals' is totally irrelevant. Yet the EU Commission still advocates that potential benefits are more important than the wishes of the people - the colonial spirit lives on in Brussels. Talking about the Moroccan 'regions of the south' is an insult to those EU Member States who believe the Commission is currently working in line with the UN principles and EU Court judgments", states Sara Eyckmans from Western Sahara Resource Watch.
All Members of Parliament (MEPs) taking the floor were critical to the Commission's approach of seeking to include Western Sahara in its trade and fisheries deals with Morocco. None of the MEPs in the room defended the Commission.
In December 2016, the Court ruled that no EU trade or association agreement with Morocco could be applied to Western Sahara, unless with the consent of the people of the territory. The Commission has since negotiated and initialed an amendment to the association agreement with Morocco, not with the representatives of Western Sahara. The Commission has also not sought the consent of the people of Western Sahara, but instead embarked on a consultation process of "affected parties".
In February this year, the Court ruled analogously on the fisheries agreement, calling it only valid if it applied to Morocco proper, and thus not to Western Sahara as that would be a violation of international law. Nevertheless, the Commission has initiated talks with Morocco for a new fisheries agreement including the Western Sahara waters in April this year.
All MEPs expressed their concern that the negotiated outcome would not hold up under the Court's judgments. Several MEPs also indicated that they found Commission's use of Moroccan terminology shocking, referring to Western Sahara as "southern provinces" and to the people as "local population".
When questioned on these issues, the Commission took to defending its approach by stressing the benefits for Western Sahara. "In the Association Agreement, we are not creating obligations or imposing charges on Western Sahara, Western Sahara people or populations - we are giving them an advantage", DG TAXUD stated, adding that it would be better to give the "Western Sahara population" preferential treatment now, instead of waiting a few years for the UN process to run its course.
No mention was made by the Commission to the Article 106 of the CJEU judgment of 21 December 2016, which states that the question of benefits is totally irrelevant as a precondition of legality. The aspect that needs to be fulfilled, is the one of consent.
In response to the Commission’s statements at the hearing, the Polisario Front, the UN-recognised representation of the people of Western Sahara, called upon the EU institutions to “take action to prevent the violation of the core principles and values of the EU and to put in place the necessary measures for the immediate implementation of the ECJ rulings”.
“The EU Commission did not seek the consent of the people of Western Sahara nor engage in responsible and meaningful negotiations with their UN-recognized Representative, the POLISARIO Front. Instead, the EU Commission chose to replace the consent of the Saharawi people by a so-called “consultation process” and to replace the people of Western Sahara by the “local population” where Moroccan settlers are a majority”, Polisario’s statement reads. “The people of Western Sahara have nothing to gain from exploitation and export of their natural resources against their consent.”
The former Legal Counsel to the UN Security Counsel, Mr. Hans Corell, comments on the EU's fisheries activities in Western Sahara.
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The UK Court has concluded that the UK government has acted unlawfully in granting preferential tariff treatment to products from Western Sahara through a deal with Morocco, and in granting fisheries quota's for fishing in Western Sahara under a fish deal with Morocco.